If you are involved in a dispute where you need to take urgent action to (usually) restrain another party from doing something, you might consider seeking an injunction.
Alternatively if you have had an injunction order made against you you may need advice to have it removed to continue your business or trade.
The court or tribunal making the decision to put in place an injunction must be satisfied that an injunction is the best way to deal with the situation. There are many things that should be considered before making an application for an injunction.
We are experienced injunction lawyers, based in Sydney and Melbourne.
Injunctions are legally binding, and a party that breaches an injunction may be held to be in contempt of court. The result of breaching injunction can include fines, bonds, community service, or even imprisonment in some cases. If you have an injunction made against you or your business you must get advice quickly.
Different classifications of injuctions
Injunctions can be categorised by the stage they are put in place during proceedings:
- Interim injunction – this type of injunction is usually in effect for a very short amount of time, until the parties can apply for an interlocutory injunction. Interim injunctions are often obtained on an ex parte basis, which means without the other party being present, and are only granted where it is not possible or not appropriate to give the other party proper notice. Interim injunctions are put in place to maintain the status quo until the plaintiff can make an application for an interlocutory injunction, but they are quite similar to interlocutory injunctions, and the two terms are sometimes used interchangeably.
- Interlocutory injunction – this type of injunction is usually obtained before a trial, and remains in force until the trial has been decided. Interlocutory injunctions are typically sought where one party fears that the other party might do something that would cause irreparable damage, and the plaintiff could not be adequately compensated if the action continued. An interlocutory injunction could be sought, for example, where one party is suing the other over a unique piece of property, and the other party intends to destroy that property; or to stop funds from being removed from a bank account until the issues between the parties have been resolved.
- Permanent injunction – after a matter has been resolved at trial, a permanent injunction can be put in place to stop or compel an action permanently.
Injunctions may also be distinguished by whether they stop or compel a person to do something:
- Prohibitory injunction – a prohibitory (or restrictive) injunction is an injunction to prohibit a person from doing something. A prohibitory injunction could be put in place to stop someone from publishing material that may have a detrimental effect on the other party or to stop the property from being disposed of until the matter has been resolved.
- Mandatory injunction – a mandatory injunction directly orders a person to do something, or to take a positive step. Mandatory injunctions are generally more onerous in nature and harder to enforce. Mandatory injunctions are not common in interlocutory (or interim) proceedings, because they can often have the same effect as a final decision rather than simply maintaining the status quo while a decision is reached. There are, however, special types of mandatory injunctions, such as search orders that compel one party to hand over relevant documents, which are used quite regularly on an interim basis.
To be granted an injunction, an applicant must satisfy the court or tribunal of two things:
- that the applicant has a prima facie case – that is, that they have a case that has a realistic chance of winning or that there is a serious question to be tried; and
- that the inconvenience or injury that the respondent would suffer if the injunction were granted is outweighed by the inconvenience or injury that the plaintiff would suffer if the injunction were not granted.
The party seeking the injunction may also be asked to give an undertaking as to damages in case the matter is finally resolved in favour of the other party. ‘Giving an undertaking as to damages’ essentially means to promise to pay damages to the other part if it turns out later than the injunction should not have been granted. Giving such undertakings is a serious matter and you should seek the right legal advice before you make an undertaking.
Injunctions are very serious matters, and courts are wary of stopping something that should not have been stopped, particularly if the damage that arises may be irreparable. Where an undertaking is given to the court, it must be for an amount that would sufficiently compensate the respondent for any losses they sustained from the imposition of the injunction, if it is later found that the injunction was wrongly granted.
Considering the risks associated with injunctions it is important to get the right advice. Our lawyers have the knowledge and expertise to protect your interests applying for injunctions to safeguard your assets. We have also successfully defended against injunctions from the other side.
The results of breaching an injunction are severe, and the procedural rules to obtain an injunction are strictly adhered to by the courts and tribunals. PCL Lawyers can be by your side to guide you through the process and get the best outcome for you.
For more information about injunctions, or to discuss your case and whether you should be seeking an injunction, call our injunction lawyers in Melbourne or Sydney today on 1300 907 335 or complete the enquiry form on this page and we will respond to you promptly.