I admire your self deprecating statement that you will leave your analysis to yourself; then your calling me an upramper; then your wrongl characterisation of my post; and then your inclusion of a gratuitous insult about me.
To really cap of your hypocritical nonsense, you state that you believe, "...the request for an injunction by SMSL will be dismissed by the court on October 4 because we have pretty strong case and precedents."
I would be keen to hear you explain to us all what precedents the company can rely on? Are you really suggesting that the dismissal of another injunction application against SMSL is a precedent the company can rely on in the two new applications for review?
I write with equivocation and you insult me yet you write with no equivication, make bald assertions and try and martyr yourself. And some other character in your cheersquad reckons I am twat!!!
For those who are interested in the application of relevant injunctive legal principles in Victoria see:-
See in particular paragraph 33 where Justice Gillard explains what an interlocutory injunction is. The importance to Lynas is that is the injunction is extended until the hearing of one or other of the reviews then the pause button is hit. That means no act can be taken pursuant to the TOL, unless for example there was an order that Lynas could say import the concentrate but not process it etc.
I include below the commentary from Williams' Civil Procedure Vic. to show that the concern expressed about Lynas consenting to the interim injunction order, the impression it creates and the use of Lynas' consent is rubbish. It was the reason why I started this thread.
Para. 38.01.245 headed 'General':-
According to Dr Spry, in granting such an injunction, the court is concerned both with: (a) the maintenance of a position that will most easily enable justice to be done when its final order is made; and (b) an interim regulation of the acts of the parties that is the most just and convenient in all the circumstances: C F Spry, Equitable Remedies, 6th ed, LawBook Co., Sydney, 2001, pp 446–7. See also Jones v Pacaya Rubber and Produce Co Ltd [1911] 1 KB 455 at 457; Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd [1979] VR 107 at 110; (1979) CLC 40-538; (1970) 3 ACLR 732; Magna Alloys & Research Pty Ltd v Coffey [1981] VR 23 at 28; George Macgregor Auto Service Pty Ltd v Caltex Oil (Aust) Pty Ltd (1980) 35 ALR 72 at 75; (1980) 51 FLR 458; (1981) ATPR 40-214 (FCA); Waikato (Pty) Ltd v Kaplan, above. The injunction is provisional only and does not purport to finally determine the rights of the parties.
At para. 38.01.260 headed 'Disputed question of fact or law':-
It is not the function of the court on an application for an interlocutory injunction to try to resolve conflicts of evidence on affidavit as to the facts on which the claim for principal relief depends or to decide difficult questions of law which require detailed argument and mature considerations. These are matters to be dealt with at the trial: American Cyanamid v Ethicon Ltd [1975] AC 396 at 407; [1975] 1 All ER 504 at 510. As Lush J said in Henry Roach (Petroleum) Pty Ltd v Credit House (Vic) Pty Ltd [1976] VR 309 at 318: “If the matter stood for final decision today my judgment would be against the plaintiff. The question is, however, whether the plaintiff has shown such a case as to make it proper for me to preserve the status quo until a full trial.”
As to the usual undertaking as to damages, I refer to para. 38.01.305 headed 'Damages undertaking'.
On granting an interlocutory injunction, whether obtained ex parte or on notice, it is the invariable practice of the court to require the plaintiff to undertake to be answerable for any damages caused to the defendant by the injunction, in the event of the court afterwards awarding any such damages: see Graham v Campbell (1878) 7 Ch D 490; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 627; Kerridge v Foley [1968] 1 NSWR 628; (1968) 70 SR (NSW) 251; Australian Marketing Development Pty Ltd v Australian Interstate Marketing Pty Ltd [1972] VR 219 at 229; Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; 33 ALR 578; Ansett Transport Industries (Operations) Pty Ltd v Halton (1979) 25 ALR 639; European Bank Ltd v Robb Evans of Robb Evans & Associates (2010) 264 ALR 1; 84 ALJR 239; [2010] HCA 6; BC201001148. “The practice of requiring the undertaking recognises that, the injunction being only interim or interlocutory and so the rights of the parties not having been finally determined, it may at a later stage appear that the applicant should in fairness compensate the party enjoined for the harm he has suffered”: National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 at 559–60; (1990) 8 ACLC 403, per Kaye, Murphy and Brooking JJ, referring to Gibbs J in Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 at 311; 33 ALR 578 at 580–1. See also National Australia Bank Ltd v Bond Brewing Holdings Ltd, aboveat 574–6; Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318 at 330. The undertaking is the price of the injunction: Kerridge v Foley, aboveSR (NSW) at 255; NSWR at 630; Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 at 319; 33 ALR 578 at 587; National Australia Bank Ltd v Bond Brewing Holdings Ltd, aboveat 574; Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd (1991) 56 SASR 515 at 519; Cheltenham & Gloucester Building Society v Ricketts [1993] 4 All ER 276 at 281; [1993] 1 WLR 1545. Damages cannot be awarded unless the plaintiff gives the undertaking: Chisholm v Rieff (1953) 2 FLR 211 at 214 (NTSC); National Australia Bank Ltd v Bond Brewing Holdings Ltd, above. No undertaking is required on the grant of a perpetual injunction.
In para. 38.01.310 headed 'Capacity to meet undetaking' a relevant consideration regarding SMSL or whoever is bringing the action is the means to pay any undertaking as to damages should they fail at final hearing.
"Whether the plaintiff's assets would be sufficient to meet the damages that might be awarded to the defendant pursuant to an undertaking given by the plaintiff is a factor relevant to the grant of interlocutory relief; see Active Leisure (Sports) Pty Ltd v Sportsman's Australia Ltd [1991] 1 Qd R 301."
This is relevant because if the injunction is extended and Lynas sets out the financial harm that the injunction will cause, if SMSL is successful in getting the injunction extended but ultimately loses at the final hearing then they may well have to pay compenbsation to Lynas.
I am not sure if anyone has posted a link to this report dated April 2012. I assume it was prepared in opposition to the granting of the TOL before the mainister made the final decision but I am not certain. I apologise in advance if it is old hat.
My view (for what it is worth) is that this court date on 4 October is significant because it could hold everything up until the reviews are heard and determined (i.e. the injunction is in place until hearing). On the other side of the coin the court may revoke the injunction order and let Lynas operate until the substantive hearings of the reviews. It could be if that the company does this, that and the other in the mean time, down the track the court may hold up the production of oxide until some step or other is complete, or the court finds that in fact the minister has failed to take into account some important aspect of the plant's effect on the people or environment causing further delay.
The injunction may end up being an effective stalling tactic for SMSL, and if it isn't, the final hearings down the track will settle the issue once and for all.
LYC Price at posting:
79.0¢ Sentiment: Hold Disclosure: Held
(20min delay)