What is an injunction? Everything you need to know

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What is the purpose of an injunction?

The common purpose of an injunction is to prohibit a party from doing, or refrain from doing, a specific act. By issuing an injunction, the aim of doing so is to preserve and maintain the status quo in specific circumstances, where the failure to do so may cause one of the parties irreparable harm that cannot be adequately remedied. In the instance a party wishes to seek an injunction, it is important to consider which injunctive relief would be appropriate to the situation.

What is an injunction and how does it work?

As previously mentioned above, the common purpose of an injunction is to prohibit a party from doing, or refrain from doing, a specific act. In order for the court to grant an injunction, it required the party to satisfy the following elements:

–       That a person has refused or failed, or is proposing to refuse or fail, to carry out an act or refrain from performing their obligations; and

–       The refusal or failure to perform or refrain from performing an act causes irreparable harm or damage that cannot be adequately remedied.

In the instance an injunction is granted, it showcases that the Court in their opinion views the party involved intents to refuse or fails to refrain from doing an act, or that a person has a previous history of failing to refrain from or fail to carry out an act. Further, the Court in their view see the party as a threat to cause imminent danger of substantially causing irreparable harm to another. The Court’s power to exercise this discretion is outlined in section 124 of the Regulatory Powers (Standard Provisions) Act 2014, where it stipulates that certain limits on granting injunctions are not to apply to restraining injunctions or performance injunctions. The way in which an injunction ‘work’s’ is dependent on how the Court exercise their discretion unique to the specific circumstance presented.

What is an example of an injunction?

As an injunction prohibits a party from doing, or refrain from doing, a specific act, there are many examples of when an injunction may be an appropriate action. The following lists provides examples of when a party may want to issue an injunction:

–   Preventing someone from selling or transferring property;

–   Inhibit someone from publishing or distributing material about someone or something;

–   Restricting someone from entering or going near another person or space;

–   Preventing someone from distributing or acquiring funds; or

–   To correct information, such as personal information, an individual has on record.

The above scenarios are examples of when an injunction may be issued. This is not a definitive list as each situation is unique and dependent on which specific act is being injuncted. The Court exercising their powers will grant an injunction where it is appropriate to do so, it must be clear in your application of what you are aiming to seek.

What happens when you get an injunction on someone?

Depending on the specific circumstances of the matter, if you get an injunction on someone this means that you have either permitted a party from doing, or restricted a party from doing, a specific act. This means that your application was successful and the Court in their view agree that an injunction is an appropriate action in handling the matter. Once an injunction has been issued on someone, their obligations to comply with the injunction are set out clearly.

Interim, interlocutory or final?

There are three types of injunctions that may be sought by an applicant, these are:

–       an interlocutory injunction;

–       an interim injunction; or

–       a final injunction.

See the following discussion on each type of injunction:

An interlocutory injunction is when an applicant seeks to restrict or grant a party for a specific period of time while legal proceedings are afoot. This type of injunction is only in force for the period in which the trial is being heard and will cease when a determination has been made after the final hearing.

An interim injunction is sought by an applicant to restrict or grant a party for a specific period of time. This type of injunction is commonly used by the parties in the interim of a decision being made by the Court. Commonly, parties who seek interim or interlocutory injunctions are confused with the application of which injunction is appropriate and these terms are sometimes used interchangeably. Therefore, it is important to remember that an interim injunction can be made after the finalisation of a legal proceeding whereas an interlocutory injunction can be granted while legal proceedings are afoot.

A final injunction, otherwise known as a permanent injunction, occurs where the Court issues an order to last indefinitely. This type of order is more restrictive in nature and usually occurs at the end of a legal proceeding. Therefore, the finality and permanence of the injunction is considered to be more ‘harsh’ in comparison to interim or interlocutory injunctions.

It is important to understand that there are different requirements for each type of injunction to be successful in their application.

Ex parte. Injunction

An ‘ex parte’ injunction is where a grant against a defendant is issued without notice being given. This type of injunction is most commonly utilised where a situation is of great urgency until the matter can be heard at trial. This type of injunction generally only lasts for a restricted period of time and the Court is commonly reluctant to issue such an injunction, as it is only for very special circumstances based on the urgency of the matter. It is important to understand that ex parte injunctions are commonly awarded alongside freezing orders where a party is prohibited from hiding, selling or removing certain assets. This type of injunction remains at the direction of the Court, but the threshold for an ex parte injunction is much harder to obtain as it is granted against a defendant who has not been served.

Mandatory Injunction

A mandatory injunction requires/compels one party to complete a specific act or to restore something to its natural state. Therefore, the party is compelled to restore the situation which would have prevailed but for the party’s breach.

An example of this is reinstating a to tenant their leased property when they have been wrongfully evicted by their landlord. The court will impose an injunction allowing the property to be leased to the original tenant. Similarly, if one party is refusing to comply with their obligations, a mandatory injunction can be sought to compel the breaching party to comply.

It should be noted that a mandatory injunction is not as readily granted as a prohibitory injunction (an injunction preventing one party from doing something). This is because the Court is usually more inclined to order a party to refrain from doing something rather than impose an obligation.

Interlocutory Injunctions

Interlocutory injunctions are most commonly used by the Court to restrict or grant a party for a specific period of time while legal proceedings are afoot. This type of injunction is generally sought by party’s in urgent circumstances where they seek to protect an immediate right until the Court has made their decision on the matter at trial.

There are several circumstances in which a Court may issue an interlocutory injunction, this commonly occurs where matters concern contractual, property or tortious disputes. Each application is however unique and it is at the Courts discretion whether issuing an interlocutory injunction is most appropriate in the circumstance. This idea was similarity shared by Lord Hope in Attorney-General v Punch Ltd [2003] 1 AC 1046, at 1070 where it states

The purpose for which the courts grant an interlocutory injunction…is to regulate and where possible to preserve, the rights of the parties pending the final determination of the matter which is in issue by the Court.

Overall, in the assessment of any application for an injunction the courts commonly look at the whole case. An injunction is usually not granted unless the following elements are incorporated in the application:

–       the applicant has a ‘prima facie’ or ‘serious question’ to be tried;

–       the balance of convenience favors the grant of an injunction;

–       the applicant provides an undertaking as to damages; and

–       the Court decides in its discretion to award the injunction.

The balance of convenience favours the grant of the injunction

The balance of convenience refers to when the grant of an injunction is favourable in the circumstance. In an application, the applicant must show that on the balance of convenience that the course to achieve justice between the parties is to issue an injunction. Claims that seek an injunction must prove to the Court that in consideration of the matter, it is of convenience as it preserves the status quo pending the decision at trial. Therefore, in the Courts assessment, the balance of convenience in the application must be justifiable in ordering the injunction.

The Court decides to exercise its discretion in awarding an injunction

When an applicant makes an application for an injunction, the Court decides to exercise its discretion to discern as to whether to issue an injunction or not. This decision is discretionary as it is the Court’s decision to interpret the intentions of the party’s and consider the likelihood that if an injunction was not issued how would this affect the parties or the matter overall. This allows for the judge in their assessment of the application to consider all the relevant facts and potential consequences that may follow. Therefore, as injunctions are subject to the discretion of the Court and the unique circumstances of each case, it is the role of the Judge to consider each factor and give weight to each issue. This issue was particularly discussed in Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349, where the Court also assesses whether damages are an appropriate remedy rather than issuance of an injunction. It is the Court’s exercise of their discretion as to whether an injunction will be granted.

The Applicant has made out a ‘prima facie’ or a ‘serious question’ to be tried

In order for an application for an injunction to be considered, the applicant must ensure that a ‘prima facie’ or a ‘serious question’ is to be tried. This test requires an applicant to assert the core issue and explain in the application the ‘serious question’ that is causing rise to the dispute.

The ‘prima facie’ test is set out in Beecham Group Ltd v Bristol Laboratories Pty Ltd (2006) 227 CLR 57 by Justices Gummow and Hayne at [65], which explains that when assessing whether an applicant has made out a ‘prima facie’ case, it is sufficient in the justification if the application was made to preserve the status quo pending the trial. This highlights that an applicant only needs to have a ‘sufficient likelihood of success’ to succeed at trial because their matter has a ‘serious question’ to be tried.

The Plaintiff provides an undertaking of damages

In the Court’s process of review, it is important to ensure that the plaintiff provides in their application a ‘usual undertaking of damages.’ This process occurs when the Court grants an interlocutory injunction, which prevents another party from acting until the Court has made a decision concerning the matter in dispute.

In the plaintiff’s application, it is important for the plaintiff to acknowledge that in exchange for putting a restraint on the other party, that you commit to an undertaking of damages. This commitment by you is required that if the other party suffers damage as a result of the injunction due to the Court overturning the original injunction, you are required to compensate for the damages. The purpose of the plaintiff providing an undertaking of damages is to ensure that by application the respondent can recover from any loss sustained by having to comply with the injunction if it is held that the injunction was, in fact, incorrectly granted. Overall, it is important to ensure that in your application to seek an injunction from the Court, that you are aware of the potential repercussions if found that an injunction was incorrectly granted in the circumstances of the matter.

What courts have jurisdiction to order injunctions?

The jurisdiction to order an injunction is dependent on where your matter will be heard. The Courts exercise in their jurisdiction and discretion, based on your individual circumstances. The power of the Courts to order an injunction is based on what is set out in the enabling statute for the Court.

How can I get an injunction?

An injunction may be sought either before a matter is brought to the court or during the matter being dealt with at trial. In order to obtain an injunction, the applicant must apply to the Court and seek a grant to the prohibition of an act being performed. Once an application has been created, it is up to the Court’s discretion to either grant or reject the application.

To provide further clarification, an injunction that is being requested along the first instance of an application to the court to hear a matter, permits the applicant to restrict or act in a specific manner. This process must occur at the initial stage of bringing an application to the Court for consideration. Further, an injunction may also be sought to prevent or make a party act, after an application to the Court has been made, but before the issue is decided and a final order is issued.

A party who wishes to seek an injunction and which injunction is most appropriate is based on the urgency of the matter. In each application, the issues presented to the Court are unique and therefore in the assessment process it is important for both the Court and the applying party to understand which injunction is most appropriate. By issuing an injunction it does not favour or advance a party’s claim, rather it is used as a method for ensuring that the issue or concern is dealt with fairly.

How long does an injunction last?

An injunction can last anywhere from one week to forever, this really depends on the severity of the matter and the judgement. For example, a temporary injunction may be in force for as long as is required for the other party to be served and can remain in force until the final hearing. The injunction can, however, be moved or continued for various reasons. A final injunction, however, can last much longer and potentially as long as the judge deems it appropriate in order to achieve the desired outcome. In some circumstances, the winning party of a final injunction will be asked to advise how long they wish the injunction to be in place for so the judge can take this into consideration.

How long does it take to get an injunction?

The time required to acquire an injunction can often be unpredictable. Depending on the nature of the claim and the reasoning for the injunction, the time required to receive an injunction will vary. As litigation is often a lengthy process, this can take months to years depending on the complexities of the matter, level of issues in dispute, evidence required to be collected and other matters. In some family law matters, the family court may reduce the speed of seeking injunctions due to the severity of the matter. If you are seeking an injunction and wanting to know how long it will take, speak with your solicitor, as this is must be assessed on a case by case basis.

How much does an injunction cost?

Similarly to determining how long an injunction will take to be granted, the cost of an injunction is heavily dependent on the circumstances of the matter. Complex matters where large organisations are involved may cost hundreds of thousands depending on the length of the dispute whereas less complex matters may be resolved within a smaller budget. Litigation costs include solicitor fees, filing fees, court fees and various other fees that are all part of the dispute and litigation process in order to seek an injunction. If you are cost conscious, it is worth letting your solicitor know so they can take that into consideration where possible. It is, however, important to understand that litigation is a costly process.

What if the injunction is breached?

If an injunction is breached, the party in breach may be held in contempt of court. Such contravention of the order may result in the party being punished by fine and/or imprisonment. The severity of the punishment is of the Court’s discretion and will vary depending on the nature of the injunction.

It is important to understand that if you have an injunction imposed in your matter, that you comply with the orders set in the injunction.

Legal advice

If you are requiring guidance on your matter, you should seek advice from Legal Kitz. Legal Kitz can assist you and ensure that your concerns are heard.

Click here to book a FREE consultation with one of our highly experienced solicitors today or contact us at info@legalkitz.com.au or by calling 1300 988 954.

The above information has been collected from relevant government websites and is subject to change. For the latest information regarding new or amended legislation, please refer to state and federal government websites.

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