Useful Resources

Injunctions

What is an injunction?

Put simply an order of a court to prohibit or compel someone to do, or not do something.

An injunction in is a Court order directing a person or entity not do a specific thing (Prohibitory Injunction), or compelling them to do a specific thing (Mandatory Injunction). They are generally sought on an interlocutory basis (Interlocutory Injunction) which is a temporary remedy sought to maintain a status quo until the larger legal issues can be heard by a Court. If really urgent, an application for injunction may sometimes warrant being heard on an ex parte basis (without the other party). If a temporary order is granted it will generally become permanent if the applicant is successful in the larger claim.

If you are considering an injunction the question to ask is whether there is a case for irreparable harm to a person or a company. If compensation won’t be sufficient to remedy the harm, then an interlocutory injunction may be appropriate. If seeking an ex parte injunction you must ensure all relevant material is disclosed to the Court – whether it favours your application or not.

A High Court case - Australian Broadcasting Corporation v O’Neill [2006] HCA 46 states that to be granted an injunction on an interlocutory basis, you will be required to establish:

1. There is a serious question to be tried;

2. There is a matter of urgency;

3. Damages will not adequately repair the harm; and

4. The balance of convenience favours granting an injunction.

What are the damages?

Payment for wrong done. The law recognises three major categories of damages:

1. Compensatory Damages, which are intended to put you back into the position you were in, before a defendant's wrongful conduct;

2. Nominal damages, which consist of a small sum awarded to a plaintiff who has suffered no substantial loss or injury but has nevertheless experienced a violation of rights; and

3. Punitive damages, which are awarded not to compensate a plaintiff for injury suffered but to penalise a defendant for particularly wrongful conduct.

I think I need to stop someone now – What do I do??

You need to talk to me now.

Time is of the essence.

I’ve been involved in a number of injunctions concerning matters across Australia.

Often, the longer you wait the more likely you will be taken to have accepted the conduct that’s troubling you.

The longer you wait the more likely you will lose out on your right or deal.

It’s a serious matter to convince a court to take action – before a full trial. You need expert help, and right now. I’ve worked with some of Australia’s most senior QC and SC and arguable Australia’s foremost.

Interim injunctions and interlocutory injunctions

The terms ‘Interlocutory Injunction’ and‘ Interim Injunction’ are often used interchangeably, however there is an important distinction. An Interlocutory Injunction is obtained prior to, and remains in force until your trial.

An Interim Injunction on is obtained ex parte for a short amount of time, until each party can attend court for the application of an Interlocutory Injunction.

What is an Interlocutory Injunction?

An Interlocutory Injunction is an a remedy which aims to keep the status quo by preventing one party from repeating, committing, or continuing a wrongful act before trial. It is often used to ensure to prevent assets from being sold or to restrain the other party from continuing to do something, for example, I’ve obtained one to stop plant being auctioned at the wharf!

It can be used to stop someone contacting your clients or employees;

To prevent the demolition of a heritage listed site; or

To prevent publication or use of confidential information.

You get the picture.

Interlocutory Injunctions are generally obtained where there is a risk that a party to a dispute will do something which will cause irreparable damage.

Their purpose is to preserve identifiable legal or equitable rights which can later be enforced if the applicant is successful in a final judgement.

What is an Interim Injunction?

An Interim Injunction is obtained ex parte and is only granted where it is not possible or not appropriate to give the other party notice. For example where there is a risk that a party to a dispute will do something which will cause irreparable damage

What circumstances will a court grant an Interim or Interlocutory Injunction?

In Queensland the Civil Proceedings Act 2011 and the Uniform Civil Procedure Rules 1999 each include provisions which provide for these. Basically any higher court except a magistrates court can hear these matters – but as always there’s more to it.

There’s a test.

The test to determine when the court will grant an Interim or Interlocutory Injunction encompasses two elements:

1. The applicant has a prima facie case or serious question to be tried; and

2. On the balance of convenience as to the damage which would be suffered, the applicant would suffer more damage if the injunction were not granted than the defendant would if the injunction was granted.

The first element involves an analysis of the likelihood of the applicant’s case being successful but not a prediction of the outcome of the subsequent case.

The courts have identified a number of further considerations when granting Interlocutory Injunctions. These involve a consideration of:

1. Whether the injunction sought is prohibitory or mandatory (the latter are in nature more onerous and difficult to enforce, thus they are rarely granted as it requires the party to do something rather than just prohibit the doing of an act);

2. Any effect the injunction would have upon third parties – a court will be far less likely to grant an injunction if it will interfere with the rights of third parties or if it will effect the public interest poorly;

3. The length of time between the application and the pending trial;

4. Any delay on behalf of the party seeking the injunction (I keep telling you time is of the essence!!) delay will likely cause doubt as to the urgency and necessity of obtaining the injunction); and

5. The relative strength of an applicants case.

Additionally, it will be highly favourable to your application that you provide an undertaking as to damages and generally this will be required to obtain the courts indulgence.

It is not a requirement but it is a highly persuasive factor in the court’s discretion.

The undertaking must be for an amount sufficient to compensate the respondent for any losses arising from the imposition of an injunction, should it ultimately be determined the injunction was wrongly granted.

Breach of an Interim Injunction

Any breach is inviting one to held to be in contempt of court, which may result in imprisonment or fines. Due to the severity of this, it is crucial legal advice is sought.

Appeals against Interlocutory Injunctions

An order for an Interlocutory or Interim Injunction can be appealed only where it can be shown the judge at first instance has erred in law or has exceeded his or her discretion which has resulted in a substantial injustice.

Such an appeal may be applied for by any party affected by the injunction including third parties who seek leave from the court.

Alternatively, an Interlocutory Injunction may be avoided if the party against whom it is sought provides the court with an undertaking to refrain or restrain from the action.