Campus Oil Ltd v Minister for Industry and Energy (no 2)

JurisdictionIreland
CourtSupreme Court
Judgment Date01 Jan 1984
Judgment citation (vLex)[1983] 5 JIC 1703
Docket Number[1982 No. 9256P]

High Court

Supreme Court

[1982 No. 9256P]
Campus Oil v. Minister for Industry (No. 2)
Campus Oil Limited and Others
Plaintiffs
and
Minister for Industry and Energy and Others (No. 2)

Cases mentioned in this report:—

1 Campus Oil Ltd. v. Minister for Industry and Energy [1983] I.L.R M. 258.

2 Campus Oil v. Minister for Industry—see p. 82, supra.

3 Educational Company of Ireland Ltd. v. FitzpatrickIR [1961] I.R. 323.

4 American Cyanamid v. Ethicon Ltd.ELR [1975] A.C. 396.

5 Esso Petroleum Co. (Ir.) Ltd. v. FogartyIR [1965] I.R. 531.

6 Shepherd Homes Ltd. v. SandhamELR [1971] Ch. 340.

7 Hounslow London Borough Council v. Twickenham Garden Developments Ltd.ELR [1971] Ch. 233.

8 Procurer du Roi v. DassonvilleUNK [1974] E.C.R. 837.

9 Commission v. ItalyUNK [1982] E.C.R. 2187.

10 Amministrazione delle Finanze dello Stato v. SimmenthalUNK [1978] E.C.R. 629.

11 Hoffman-La Roche v. CentrafarmUNK [1977] E.C.R. 957.

12 Murphy v. The Attorney GeneralIR [1982] I.R. 241.

13 Brennan v. The Attorney GeneralDLRM [1983] I.L.R.M. 449.

14 Attorney General v. Northern Petroleum Tank Co. Ltd.IR [1936] I.R. 450.

15 Attorney General v. Dublin United Tramways Co. Ltd.IR [1939] I.R. 590.

16 Byrne v. IrelandIR [1972] I.R. 241.

17 Smith v. Beirne (Supreme Court: 29th January, 1953).

18 Wakefield v. Duke of BuccleughUNK (1865) 12 L.T. 628.

19 Rex Pet Foods Ltd. v. Lamb Brothers (Dublin) Ltd. (High Court: 26th August, 1982).

20 T.M. G. Group Ltd. v. Al-Babtain Trading & Contracting Co.(Supreme Court: 28th March, 1980).

21 Fellowes & Son v. FisherELR [1976] Q.B. 122.

22 Irish Shell v. Elm MotorsDLRM [1982] I.L.R.M. 519.

23 Commission v. IrelandUNK [1981] E.C.R. 1625.

24 Commission v. IrelandUNK [1977] E.C.R. 937.

Injunction - Interlocutory - Mandatory - Principles applicable - Applicant to raise fair question for trial - Balance of convenience - Plaintiff refusing to comply with statutory order - Validity of order doubtful under law of European Economic Community - National interest - Defendant granted interlocutory and mandatory injunction - Fuels (Petroleum Oils) Order, 1983 (S.I. No. 2) art. 4 - European Communities Act, 1972 (No. 27) ss. 1, 2 - Treaty of Rome, 1957, articles 5, 30, 31, 36.

Plenary Summons.

On the 1st September, 1982, the plaintiffs issued a summons (No. 9256P) claiming, inter alia, a declaration that the provisions of the Fuels (Control of Supplies) Order, 1982, and in particular articles 4-7, 9 and 14 thereof, were incompatible with articles 30 and 31 of the Treaty of Rome (E.E.C.) and invalid. The plaintiffs, being importers of petroleum oils for sale within the State, were Campus Oil Ltd., Estuary Fuel Ltd., McMullan Brothers Ltd., Ola Teoranta, P.M.P.A. Oil Company Ltd. and Tedcastle McCormack and Company Ltd. The defendants were the Minister for Industry and Energy, Ireland, the Attorney General and Irish National Petroleum Corporation Ltd. The order of 1982 imposed on such importers an obligation to purchase from the fourth defendant, the owner of the State oil refinery at Whitegate in the county of Cork, a proportion of their requirements of such supplies at prices and upon terms to be determined in accordance with the provisions of that order.

The plaintiffs applied in the High Court for an interlocutory injunction restraining the defendant Minister from requiring them to comply with the provisions of the order of 1982 but their application was dismissed by the High Court (Murphy J.) on the 13th September, 1982—the judge stated his reasons on the 22nd September: see Campus Oil Ltd. v. Minister for Industry and Energy.1 [1983] I.L.R M. 258. Subsequently, Murphy J., on the application of the plaintiffs, decided to refer to the Court of Justice of the European Communities two questions (p. 82, supra) involving the interpretation of articles 30, 31 and 36 of the Treaty of Rome in the context of the provisions of the order of 1982.

By notice of motion dated the 14th March, 1983, the defendants applied to the High Court for interlocutory injunctions (a) restraining the plaintiffs (other than the fifth plaintiff) from failing to comply with the provisions of the Fuels (Petroleum Oils) Order, 1983, which had replaced the order of 1982, and (b) directing those plaintiffs to comply with the provisions of the order of 1983. The defendants' application was heard by Keane J. on the 18th and 22nd March, 1983.

The High Court by its order dated the 24th March, 1983, restrained the first four plaintiffs and the sixth from infringing the defendant Minister's order of 1983 and, in particular, articles 4, 7 and 14 thereof, and expressly directed the said plaintiffs to comply with the provisions of that order and, in particular, articles 4, 7 and 14 thereof. Those plaintiffs appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard by the Supreme Court on the 19th April, 1983.

By the Fuels (Control of Supplies) Order, 1982, the defendant Minister of State imposed upon importers of petroleum oils (including the plaintiffs) an obligation to purchase from the fourth defendant, the owner of the State oil refinery at Whitegate in the county of Cork, a specified proportion of the importers' requirements of such supplies at prices and upon terms to be determined in accordance with the terms of the order. The plaintiffs claimed in the High Court a declaration that the order of 1982 was invalid on the ground that it contravened the provisions of articles 30 and 31 of the Treaty of Rome, which provisions prohibit quantitative restrictions on imports between member States of the European Economic Community. A High Court judge referred that issue for determination by the Court of Justice of the European Communities, and the Commission of the said Communities sought the views of the Irish Government on the Commission's contention that the order of 1982 violated the provisions of the Treaty of Rome.

As the plaintiffs were unwilling to comply with the terms of the defendant Minister's order of 1983 (which had replaced, in similar terms, the order of 1982), the defendants applied in the High Court for an interlocutory injunction commanding the plaintiffs to comply with the terms of the order of 1983, pending the determination of the plaintiffs' claim at the trial of the action. Apart from the attitude of the said Commission, the provisions of the Treaty and the existing decisions of the said Court of Justice furnished strong indications that the order of 1983 contravened the provisions of the Treaty and was invalid. Accordingly, at the hearing of the defendants' application, the plaintiffs contended that the defendants were not entitled to the interlocutory relief sought by them as it was probable that the defendants would not establish the validity of the order of 1983 at the trial of the action.

Held by Keane J., in granting the relief sought by the defendants, 1, that probability of success at the trial was not the proper test to be applied: an applicant for an interlocutory injunction, to be successful, must establish, first, that there is a fair question (to be determined at the trial of the action) concerning the existence of the right which he seeks to protect or enforce by the injunction and, secondly, that the circumstances are such that the balance of convenience lies on the side of the granting of the injunction.

Educational Company of Ireland Ltd. v. FitzpatrickIR [1961] I.R. 323, Esso Petroleum Co. (Ir.) Ltd. v. FogartyIR[1965] I.R. 531 and American Cyanamid v. Ethicon LtdELR[1975] A.C. 396 considered.

2. That the defendants had established a fair question to be decided at the trial of the action as the order of 1983, which had not been declared invalid, had been made by the defendant Minister pursuant to powers vested in him by the National Parliament.

3. That, as some importers of petroleum oils were complying with the requirements of the order of 1983, which had been made by the defendant Minister in furtherance of the common good, and as the failure of the scheme contained in that order would result in a public loss which it would not be possible to quantify in terms of damages, the balance of convenience lay on the side of the preservation of the status quo until the determination of the plaintiffs' claims at the trial of the action.

4. That, notwithstanding the reference made under article 177 of the Treaty of Rome, the provisions of that Treaty (being part of the domestic law of the State) did not preclude the exercise of the Court's jurisdiction to grant to the defendants the interlocutory relief sought by them.

Hoffmann-La Roche v. CentrafarmUNK [1977] E.C.R. 957 considered.

5. That, although it was unusual to grant an interlocutory injunction in a mandatory form, the grant of a mandatory injunction was justified by the special circumstances of the defendants' application.

On appeal by the plaintiffs it was

Held by the Supreme Court (O'Higgins C.J., Griffin and Hederman JJ.), in disallowing the appeal, 1, that the trial judge had applied the proper test in determining the issues raised by the defendants' application.

2. That the judge had been justified in granting the defendants an interlocutory injunction in a mandatory form.

Cur. adv. vult.

Keane J.

The defendants have applied to the Court for an order giving them liberty to amend the defence already filed by the addition of a counterclaim; for an interim injunction restraining all the plaintiffs (other than the fifth plaintiff) from failing to comply with the provisions of the Fuels (Petroleum Oils) Order, 1983, and, in particular, articles 4, 7 and 14 thereof; and for a mandatory injunction directing those plaintiffs to comply with the provisions of the order of 1983, and with the shipping programme laid down by the first defendant.

The proceedings were commenced by plenary summons which was issued on the 1st September, 1982. The plaintiffs are a group of...

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