Interlocutory Injunction

If you have heard of equitable remedies (ie. remedies that are not damages) then it is likely that you have heard of an injunction. An injunction is a warning or order given by the court requiring a person to do, or not do something. An interlocutory injunction is a special kind of injunction. So what does it mean if a court imposes an interlocutory injunction? And what are other equitable remedies? Read on to find out more. 

What is an interlocutory injunction?

An interlocutory injunction is a popular equitable remedy used by the courts to order someone to act, not act, or stop performing an action. Interlocutory injunctions are available in a wide range of circumstances, such as dealings with property and contract law in a courtroom. Interlocutory can be interpreted as meaning ‘pending the result of’ court proceedings. These types of injunctions are used for urgent matters and to have a party cease their actions, or act immediately, pending a full hearing and subsequent evidence at trial. Interlocutory injunctions can be prohibitive in effect, restorative in effect, or a combination of both. 

When will an interlocutory injunction be sought?

A court may grant an interlocutory injunction to assist a party in the following circumstances:

  • The sale of land
  • The breach of a contract
  • Enforcing a covenant
  • Prevent the use or disclosure of confidential information
  • Restrain a party from exercising a right

What is the test for an injunction?

There are a number of conditions that must be satisfied before an interlocutory injunction will be granted by a court. These are:

  1. The plaintiff has made a ‘prima facie case’ on whether there is a serious question to be tried. This means that the plaintiff must show, based on evidence, that there is sufficient likelihood (greater than 50%) of success at trial.
  2. The ‘balance of convenience’ favours the grant of the injunction. That is, the court will consider whether the inconvenience or injury the plaintiff would likely suffer if an injunction was not granted outweighs the  inconvenience the defendant would suffer if the injunction was granted.
  3. The plaintiff provides ‘an undertaking as to damages’. This refers to whether the plaintiff agrees to compensate the defendant if the injunction is overturned. 
  4. The court decides to exercise its discretion to grant an injunction.

In addition, the court will also consider the following elements:

  • Does the plaintiff has a serious, genuine case with an issue warranting determination at a court trial?
  • Has the plaintiff made an unsuccessful attempt to resolve the issue prior to application for an injunction?
  • Do the circumstances warrant granting an injunction due to urgency?
  • Does the balance of convenience suggest the injunction should be granted?
  • Would damages be adequate compensation for the plaintiff?

How long does an interlocutory injunction last?

Interlocutory injunctions are temporary, and generally last until trial or further order by a court. When granted an interlocutory injunction, the court will decide a time frame the injunction will last for (ie. the time that the person must cease their actions, or has to complete an activity). 

When can an interlocutory injunction be granted?

An interlocutory injunction can be granted for any of the above circumstances eg. breach of contract and enforcing a covenant if the court is satisfied of the above test.

What is the difference between an interlocutory and interim order?

The interlocutory and interim order difference refers to the amount of time that an injunction is granted for. Interlocutory injunctions are granted until trial date or a further order is given, whereas an interim order is in order until a specified date. Further, interim orders can be granted ex parte (that is, where one party acts in the absence of another) and remains in place only until each party can attend court for the application of an interlocutory order. Interim orders are temporary orders made by courts until the final order is made. 

Should I attempt to resolve the dispute before applying to the court?

Yes, it is likely that a court will require you to undergo many processes prior to applying for an interlocutory injunction. These processes are likely to require an effort of dispute resolution by the applicant, in attempt to resolve the dispute prior to involving hefty legal fees and use of court resources. Before applying for an interlocutory injunction, the applicant should communicate their feelings to the defendant, and inform them of their decision to apply for an injunction unless they do (or stop doing) the action that is causing you harm. 

What is promissory estoppel Australia?

Promissory estoppel is an equitable doctrine that will grant a remedy to prevent unconscionable conduct by a party who makes a clear promise to another party. This first party must rely on the promise to their detriment, in order for a court to grant relief to the plaintiff. 

What is exclusive dealing?

Exclusive dealing occurs when a person trading with another entity imposes a restriction on the other party’s freedom to choose with whom, in what, or where they deal. 

What is third line forcing?

Third line forcing is a type of exclusive dealing in which a business will only supply their product or service, or give a particular price or discount on the condition that the purchaser purchases the product or service from a particular supplier or third party. Exclusive dealings of this nature are not illegal, and instead will only break the law when the conduct has the effect of lessening the competition in their respective market substantially. 

What is lemon law Australia?

Lemon law is not an actual law, but instead is enforced by the Australian Consumer Law to protect consumers from fraud and defective products, as a ‘lemon’ is a product that will ‘simply not function as intended, for reasons that are beyond the the expertise of a reasonable repairer to remedy’. For people who purchase a ‘lemon’, the purchaser can choose between a refund, replacement or compensation equal to the value of the good as guaranteed by consumer law. ‘Lemons’ generally refer to second-hand vehicles, however, this is not a requirement under law. 

If you require further assistance with any matters related to an interlocutory injunction, you should seek legal advice. Legal Kitz can direct you with your next step, whether you wish to seek an interlocutory injunction, or if you need assistance attempting to resolve the dispute before getting the court involved. Our Legal Kitz business specialists can assist with ensuring that your concerns are addressed, and can provide you with advice that is tailored to your situation. You can book a free 30-minute consultation via our website now. 

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