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Part 2—Injunctions

Part 2 Injunctions

   

8  Simplified outline of this Part

•      The Federal Court or the Federal Circuit Court may grant an injunction in relation to a contravention of the relevant Commonwealth Procurement Rules (so far as those rules relate to a covered procurement).

9   Injunctions

Restraining injunctions

             (1)  If:

                     (a)  a relevant Commonwealth entity; or

                     (b)  an official of a relevant Commonwealth entity;

has engaged, is engaging or is proposing to engage, in any conduct in contravention of the relevant Commonwealth Procurement Rules (so far as those rules relate to a covered procurement), the Federal Court or the Federal Circuit Court may, on the application of a supplier whose interests are affected by the conduct, grant an injunction:

                     (c)  restraining the entity or official from engaging in the conduct; and

                     (d)  if, in the court’s opinion, it is desirable to do so—requiring the entity or official to do something.

Performance injunctions

             (2)  If:

                     (a)  either:

                              (i)  a relevant Commonwealth entity; or

                             (ii)  an official of a relevant Commonwealth entity;

                            has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

                     (b)  the refusal or failure was, is or would be in contravention of the relevant Commonwealth Procurement Rules (so far as those rules relate to a covered procurement);

the Federal Court or the Federal Circuit Court may, on the application of a supplier whose interests are affected by the refusal or failure, grant an injunction requiring the entity or official to do that act or thing.

10   Availability of alternative remedy of compensation

             (1)  If:

                     (a)  a supplier has made an application to the Federal Court or the Federal Circuit Court for an injunction under this Part in relation to a contravention or proposed contravention; and

                     (b)  the supplier has made an application to the court for an order under section 16 (compensation) in relation to the contravention or proposed contravention; and

                     (c)  a public interest certificate is in force in relation to the procurement concerned; and

                     (d)  the procurement concerned has not reached the stage where a contract has been entered into with a supplier;

then:

                     (e)  the court must consider:

                              (i)  whether the grant of the injunction would result in a significant delay to the procurement concerned; and

                             (ii)  if so, whether the making of an order under section 16 would be a more appropriate remedy for the contravention or proposed contravention than the grant of the injunction; and

                      (f)  if the court is satisfied that:

                              (i)  the grant of the injunction would result in a significant delay to the procurement concerned; and

                             (ii)  the making of an order under section 16 would be a more appropriate remedy for the contravention or proposed contravention than the grant of the injunction;

                            the court may refuse to grant the injunction.

             (2)  Subsection (1) does not, by implication, limit the power of a court to refuse to grant an injunction.

11   Limits on power to grant an injunction

Complaint made by applicant to relevant Commonwealth entity

             (1)  The Federal Court or the Federal Circuit Court must not grant an injunction under this Part in relation to a contravention, or proposed contravention, by:

                     (a)  a relevant Commonwealth entity; or

                     (b)  an official of a relevant Commonwealth entity;

unless:

                     (c)  the court is satisfied that the applicant for the injunction has made a complaint under section 18 to the accountable authority of the relevant Commonwealth entity about the contravention or proposed contravention; and

                     (d)  if the court considers that it would have been reasonable for the applicant for the injunction to have attempted to resolve the complaint—the court is satisfied that the applicant has made a reasonable attempt to resolve the complaint.

Time limits for application

             (2)  The Federal Court or the Federal Circuit Court must not grant an injunction under this Part in relation to a contravention that has occurred unless the court is satisfied that the application for the injunction was made:

                     (a)  within 10 days after the later of the following days:

                              (i)  the day on which the contravention occurred;

                             (ii)  the day on which the applicant became aware, or ought reasonably to have become aware, of the contravention; or

                     (b)  within such longer period as the court allows.

             (3)  The Federal Court or the Federal Circuit Court must not grant an injunction under this Part in relation to a contravention that is occurring unless the court is satisfied that the application for the injunction was made:

                     (a)  within 10 days after the day on which the applicant became aware, or ought reasonably to have become aware, of the contravention; or

                     (b)  within such longer period as the court allows.

             (4)  The Federal Court or the Federal Circuit Court must not grant an injunction under this Part in relation to a proposed contravention unless the court is satisfied that the application for the injunction was made:

                     (a)  within 10 days after the day on which the applicant became aware, or ought reasonably to have become aware, of the proposed contravention; or

                     (b)  within such longer period as the court allows.

             (5)  The Federal Court or the Federal Circuit Court must not allow a longer period under paragraph (2)(b), (3)(b) or (4)(b) unless the court is satisfied that:

                     (a)  the applicant’s failure to make the application within the 10-day period mentioned in paragraph (2)(a), (3)(a) or (4)(a) is attributable to the applicant’s reasonable attempt to resolve the complaint mentioned in paragraph (1)(c); or

                     (b)  there are special circumstances that warrant allowing a longer period.

12   Discharge or variation of an injunction

                   A court may discharge or vary an injunction granted by it under this Part.

13   Certain limits on granting injunctions not to apply

Restraining injunctions

             (1)  The power of a court under this Part to grant an injunction restraining:

                     (a)  a relevant Commonwealth entity; or

                     (b)  an official of a relevant Commonwealth entity;

from engaging in conduct of a particular kind may be exercised:

                     (c)  if the court is satisfied that the entity or official has engaged in conduct of that kind—whether or not it appears to the court that the entity or official intends to engage again, or to continue to engage, in conduct of that kind; or

                     (d)  if it appears to the court that, if an injunction is not granted, it is likely that the entity or official will engage in conduct of that kind:

                              (i)  whether or not the entity or official has previously engaged in conduct of that kind; and

                             (ii)  whether or not there is an imminent danger of substantial damage to any person if the entity or official engages in conduct of that kind.

Performance injunctions

             (2)  The power of a court under this Part to grant an injunction requiring:

                     (a)  a relevant Commonwealth entity; or

                     (b)  an official of a relevant Commonwealth entity;

to do an act or thing may be exercised:

                     (c)  if the court is satisfied that the entity or official has refused or failed to do that act or thing—whether or not it appears to the court that the entity or official intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

                     (d)  if it appears to the court that, if an injunction is not granted, it is likely that the entity or official will refuse or fail to do that act or thing:

                              (i)  whether or not the entity or official has previously refused or failed to do that act or thing; and

                             (ii)  whether or not there is an imminent danger of substantial damage to any person if the entity or official refuses or fails to do that act or thing.

14   Other powers of a court unaffected

                   The powers conferred on the Federal Court or the Federal Circuit Court under this Part are in addition to, and not instead of, any other powers of the court.