CLIFT v WINDRUM [1991] NSWCA 54

CLIFT v WINDRUM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and MEAGHER JJA 20 August 1991, 2 September 1991

[1991] NSWCA 54

APPEAL from Equity Division — Injunctions — Interlocutory orders — Claim for compensation for damage suffered by third party as the result of an interlocutory injunction — Power of court to refuse application for compensation because of conduct of applicant — Considerations to be taken into account. LEAVE TO APPEAL — Grant of leave nunc pro tunc.

Mahoney JA The plaintiffs Messrs George, Ronald and Peter Clift sought an enquiry as to the damages suffered by them as the result of an interlocutory injunction granted in proceedings between Dr Graham Melrose Windrum and Rejilo Pty Limited. Their application was refused. They have appealed to this Court against that refusal.

The plaintiffs were not parties to the proceeding between Dr Windrum and Rejilo. Their claim was that they fell within the words "any person... affected by the operation of the interlocutory order or undertaking..." within the undertaking given in the proceeding by Dr Windrum. It was accepted that this was so.

In any application for compensation under such an undertaking, it may be convenient for the court to deal with the claim in two stages: first, to consider whether an entitlement to compensation has been shown; and, second, to provide for the assessment of the appropriate compensation to be paid. The present was, I think, such a case. The learned judge did not proceed to the assessment stage: he refused to order a reference of the application to the Master for that purpose. The matter to be determined on this appeal is primarily whether the learned judge was right in so doing.

The learned judge's decision was, in one sense, discretionary. It was necessary for him, having determined the facts in dispute, to weigh the considerations to be taken into account when determining whether the plaintiffs had an entitlement to compensation. Mr Graham QC, for the defendant Dr Windrum, submitted that, for the plaintiffs to succeed, they must show that the learned judge's discretion miscarried, within the principles established for this purpose: see Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513. Mr Rayment QC, for the plaintiffs, submitted that his Honour had erred in that he had misunderstood the principles involved and that he had acted upon wrong findings of fact. In order to consider the submissions made for the plaintiffs, upon this basis and upon other bases advanced in the appeal, it is necessary to refer to the circumstances of the undertaking and the application. The learned judge dealt with this by reference, in part, to the judgment of Hodgson J in the original proceeding. It is not necessary for present purposes to state all of the relevant facts: I shall state summarily the facts directly relevant to the submissions which have been made.