LAWS4001 Lecture Notes - Lecture 11: American Cyanamid, Bhushan Steel, Judgment Debtor
Week 12 (Lecture 10) – Interim or Interlocutory injunctions
Options available to a party who wishes to preserve the status quo
Three urgent ex parte applications:
1. Interim or interlocutory injunctions [Part 25]
2. Mareva injunctions/orders (freezing orders): Division 2
3. Anton Pillar orders (search orders): Division 3
All remedies that protect the integrity of the court’s processes pending the (trial) final
determination between the issues
Interlocutory injunctions preserve the status quo, freezing orders preserve the defendant’s
assets and search orders preserve the evidence
s 25.2 – Order In Urgent Case Before Commencement Of Proceedings
In an urgent case, the court, on the application of a person who intends to commence proceedings,
may do any of the following:
(c) it may grant any injunctive relief, including relief in the nature of a freezing order
under Division 2 (Mareva relief) or a search order under Division 3 (an Anton Piller
order)
Such an order may be appropriate when a situation is developing that would make
damages a less than satisfactory remedy for the loss caused by the defendant's actions
Stringent Considerations
1. PN: SC Eq 8: Urgent Matters: Duty Judge available 24/7 to hear these matters
2. ex parte – special duties are placed on the applicant to ensure that the court has all the
relevant material available to the applicant at the time of the application – regardless of
whether or not that information or argument is helpful to the respondent or the
person to whom the application is directed
a. An ex parte order should only be made for a short interim period, for example
two days or less, and the time for service of the originating process shortened, so that
on the return day the defendant has notice of the proceedings and the right to be
heard
b. On that day the plaintiff bears the onus of establishing a right to continuation
of the injunction or other interim relief.
c. Applicants for ex parte relief should provide the judge with a draft statement of
claim and notice of motion or summons, and affidavit evidence of the facts
relied on, which may be on information and belief, provided the deponent identifies
his/her source: Evidence Act 1995 s 75
3. Risks to the defendant: granted before all the evidence is in and before parties have had
the opportunity to make submissions based on all the evidence being available
4. The seriousness of the remedy, the Courts require the applicant to give an undertaking to
the Court to protect the respondent from adverse consequences of the relief if it is found
that the granting of the relief was not justified. P must pay D’s costs.
a. The Court has discretion as to whether or not it should be enforced. However, the
undertaking should normally be enforced - Air Express Ltd v Ansett Transport
Industries (Operations) Pty Ltd (1981)
b. s 25.8: The "usual undertaking as to damages", is an undertaking to the court
to submit to such order as the court may consider to be just for the payment of
compensation to any person (whether or not a party) affected by the operation of the
interlocutory order
c. The price an applicant for an interim relief must be prepared to pay in
order to obtain the orders sought to preserve the status quo
5. Include the usual “undertakings as to costs”: if the respondent suffers loss because of
the injunction and if the final determination is in D’s favor, P must pay costs
find more resources at oneclass.com
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INJUNCTIONS – discretionary power
Supreme Court: can issue whenever just or convenient by virtue of its inherent jurisdiction
and s 66 (4) of the Supreme Court Act 1970.
Federal Court: has power under: Federal Court of Australia 1976 (Cth) s 23.
District Court: has limited power to grant temporary injunctions for a period not exceeding 14
days or exceeding that period if necessary to enable Supreme Court proceedings to be commenced
or heard: District Court Act 1973, (NSW) s 141.
If granted, the court will grant an interim injunction that will be in place until the moving
party has given notice to the relevant party and the matter is listed for hearing with all relevant
parties having the opportunity to be present
but in such cases the applicant must give an undertaking to the court that he/she will file
originating process within such time as the court may order, or if the court makes no such order,
within 48 hours after the application is granted
(1) The judge must consider what is “just and reasonable” in the circumstances. The scope of
when it is "just and reasonable" was considered by the HC in ABC v Lenah Game Meats Pty
Limited:
a. (Cause of Action): Held: that the legal or equitable rights (CL, equitable or
statute) in respect of which final relief is sought must be identified before an
interlocutory injunction can be granted: the function of the courts is to do justice
according to law
Australian Broadcasting Corporation v O'Neill: Affirmed:
b. “The first is whether the plaintiff has made out a prima facie case, in the sense
that if the evidence remains as it is there is a probability that at the trial of the action the
plaintiff will be held entitled to relief (succeed).
oP must show sufficient likelihood of success to justify in the
circumstances the preservation of the status quo pending trial
c. Damages would not be an adequate remedy
oIf damages are an adequate remedy, then the court should not intervene by
awarding an injunction pending the determination of the merits of the matter:
oPre-trial injunctions are used only where the dispute will lead to continuing
harm that is not easily or adequately compensated by damages
d. Balance of convenience favors the grant of the injunction:
The second inquiry is ... whether the inconvenience or injury which the plaintiff would be
likely to suffer if an injunction were refused outweighs or is outweighed by the injury
which the defendant would suffer if an injunction were granted” (Beecham Group Ltd v
Bristol Laboratories Pty Ltd)
oAs the apparent strength of the applicant's case diminishes, the balance
of convenience moves against the making of an order: Glenwood Management
Group Pty Ltd v Mayo [1991]
oRelevant matters on this issue will depend on: the nature of the case,
irreparable harm will be suffered by the plaintiff if the relief is not granted,
whether the defendant will be in a position to pay such damages if ordered,
whether delay in making the application has or may prejudice the defendant in
some way, eg if it would prevent him carrying on a successful established
business; whether the interlocutory relief sought would overturn or merely
maintain the status quo; and the sufficiency of the plaintiff’s undertaking as to
damages.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 12 (lecture 10) interim or interlocutory injunctions. Options available to a party who wishes to preserve the status quo. 1: mareva injunctions/orders (freezing orders): division 2, anton pillar orders (search orders): division 3. All remedies that protect the integrity of the court"s processes pending the (trial) final determination between the issues. Interlocutory injunctions preserve the status quo, freezing orders preserve the defendant"s assets and search orders preserve the evidence s 25. 2 order in urgent case before commencement of proceedings. Such an order may be appropriate when a situation is developing that would make damages a less than satisfactory remedy for the loss caused by the defendant"s actions. Stringent considerations: pn: sc eq 8: urgent matters: duty judge available 24/7 to hear these matters. P must pay d"s costs: the court has discretion as to whether or not it should be enforced. However, the undertaking should normally be enforced - air express ltd v ansett transport.
