Court proceedings can be a lengthy and expensive process. What happens when the party you seek relief from continues to breach a promise with you or the law? In these circumstances, where someone is doing or is about to do something that may cause harm, an injunction is a useful mechanism that may be available to you. Where urgent circumstances require immediate court intervention, our urgent court relief lawyers act in interlocutory injunction applications across the NSW courts. Interlocutory injunctions serve as an important tool to avoid additional issues or complications arising whilst parties in dispute are preparing for or involved in court proceedings.
What is an interlocutory injunction?
The purpose of an injunction is to preserve the position of both sides during a dispute until a judge determines the main issue of fact. An interlocutory, or temporary injunction can be granted at any time from the commencement of proceedings, by way of a court order. It is an equitable relief that the court has discretion to grant. It is important to distinguish between an interim injunction and an interlocutory injunction:
Interim injunction: short-term injunction that is generally made ex parte until an application for an interlocutory injunction can be attended to.
Interlocutory injunction: remains in force for the entirety of the trial.
Further, there are two ways an injunction functions; an injunction can be prohibitive in effect, meaning the order retrains or prevents certain conduct or actions from being done by the person subject to the order. This can include when the other side has threatened to do something or appears likely to do something. A restorative injunction instead requires the other side to do something to fix or make right any issues their alleged wrongdoing has caused.
When is an injunction appropriate?
You do not need an injunction for every commercial dispute; the purpose of an injunction is not to speed up justice or gain advantage on the other side. The purpose of an injunction is to stop damage that money cannot fix, or would make the final judgement obsolete.
The first thing to consider before applying for an interlocutory injunction is whether it is the right remedy for your situation. An injunction can be an intrusive remedy that can cause loss and disruption to the other party.
Another important factor in determining whether an interlocutory injunction is appropriate is whether or not the damages will be an adequate remedy for the plaintiff if an injunction is not granted. This is seen as the threshold test.
The Three Things a plaintiff must prove
In order to grant an interlocutory injunction, the court will need to be satisfied of:
Whether the plaintiff has made out that there is a serious question to be tried in their case. This means that the court needs to be satisfied that your original claim is not frivolous or without merit. You need to show that there is a genuine issue between the parties that can be argued.
Whether the inconvenience or injury suffered by the plaintiff would likely occur if the injunction was denied, and whether that inconvenience or injury outweighs the injury suffered by the defendant if the injunction was granted. This means the court looks at the practical consequences of either granting or refusing an injunction.
Whether the damages are inadequate. If money later awarded would properly compensate you for the harm caused, the court will likely refuse the injunction and leave you with the final damages claim.
The urgency of the injunction under the plaintiff’s circumstances must also be considered. If you wait too long to seek an interlocutory injunction, the court will ask ‘if the situation was truly urgent, why didn’t you sooner’? Delay in seeking an injunction suggest either that the harm was not serious, or the status quo has changed, and the court can no longer preserve it.
Generally, the plaintiff must also provide an undertaking as to damages. This is an agreement between the plaintiff and the court that they will pay the amount of the compensation assessed to any person affected by the interlocutory injunction.
If there is not a serious question to be tried, or the plaintiff does not give undertakings as to damages, then an interlocutory injunction will ordinarily be refused, without having regard to the inconvenience caused.
Ex Parte Applications
The Court also recognises that it is not always possible to ask the other side to stop what they are doing, without creating the very problem you want to avoid. In this instance, the court may not require you to notify the other side before awarding an injunction. This is known as an ex parte application.
If you wish to make an ex parte application, you have to show that there is sufficient evidence and justification for the court to grant an injunction without allowing the other side to dispute the injunction or provide their counter-argument against the application.
What types of commercial matters commonly involve injunctions?
Some examples of circumstances in which an injunction may be sought include:
- Restraint of trade breaches;
- Confidential information and trade secrets;
- Property and asset preservation; and
- Enforcement of agreements.
Contact our Litigation Lawyers
If you have a situation that requires immediate court action, call (02) 9233 7737 now. Have ready a brief description of what is happening, any relevant documents, and a timeline of events. We will assess your position quickly and tell you honestly whether an injunction application is appropriate and what it would involve.
For more on the types of urgent court relief available, including freezing orders, see our injunctions and urgent court relief page.
