One of laws most potent and used remedies
Purpose: It orders a person to do an act or not to do an act
Typical injunctions is prohibitory or negative injunction- retrains or forbids D from engaging in wrongful act such as breaching a trust, trespassing on land, etc.
Less common is mandatory or positive injunction – directs D to perform an act, ie performing an agreement etc
While leading definition of injunction is in case of Cardile v LED Builders, this was in fact a case of Mareva order not injunction – such order also known as freezing order, prohibit the D from disposing of their assets. – they require D to take positive steps to preserve assts.
Search orders – known as Anton Pillar Orders. Such orders preserve the evidence the subject matter of the trial and, in common with Mareva Orders, they are both negative and prohibitory in form.
Principles applicable to all Injunctions
- The injunction must enforce a legal or equitable cause of action: Cardile v LED Builders
- Injunctions are always granted in the discretion of the court
- the injunction ‘ought to make clear what it is that the D is required to do or not do’: Currow v Beyond Productions Pty Ltd
NOTE Principle 3:
Last principle is important because D will be guilty of contempt of court and face heavy penalties if the order is breached
In Morris v Redland Bricks Ltd per Lord Upjohn: ‘The court must be careful to see that the D knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact.
Attorney-general v Punch Ltd: I take as my straight point for an examination of this issue the principle that an injunction must always be expressed with precision and with clarity…if an injunction is to be granted al all, it must be in terms so plain that he who runs may read…this is because of the penal consequences that follow if it breached…the prohibition must extend no further than is necessary to serve the purpose for which the order is to be made.
BUT IT HAS BEEN NOTED THAT ALTHOUGH CLARTIY AND PRECISION IMPORTANT- MUST NOT BE TAKEN BEYOND THE LIMIT TO INJUSTICE:
Giles JA in Orleans Investments Pty Ltd v Minshare Communications Ltd cited Callian J (who in dissent in Maggburry Pty Ltd) ‘that excessively narrow formalism in framing the injunction may wreak its own injustice’…there are limits to the precision and clarity which can be attained…[the P] should not suffer injustice through undue insistence on precise statement of what the A must do or not do.
In Orleans court had to consider the enforcement of a negative contractual promise not to engage in conduct which harm name or reputation of P. Giles JA held that framing of the injunction was a ‘discretionary consideration’ and not ‘a bar to relief if there were less than complete clarity for the A’s future conduct’.
When injunction is granted in exclusive juris. common law remedied such as damages cannot be awarded because court dealing with infringement of purely equitable right
Not important in this jurisdiction to determine whether common law will provide adequate remedy as in Auxiliary jurisdiction
In order to obtain injunction here, P must:
- Have an equitable cause of action
- satisfy the court that in its discretion it should grant the injunction
Onus: P to establish both elements, although in second D bears the burden of establishing equitable defence if any.
Element 1: Equitable Cause of action
Injunctions are issued to retrain infractions or apprehended infractions of purely equitable rights and obligations.
NO OBLIGATION that right has to be proprietary in nature, although property may be incidentally protected
An injunction will lie to retrain a breach of fiduciary obligation or a breach of a trust: Park v Dawson
An injunction may also be issued against third party who deals with the trust property: Cream Holdings Ltd v Banerjee
Two areas which have created controversy as to whether they are equitable or legal rights are confidential information and Persons right to work
- Confidential Information
Subject to defence, an injunction will lie against a person who receives confidential information, such as trade secret, and is threatening to disclose the info.
QUESTION: Confidential info legal or equitable right?
If there is contract or statute prohibiting disclosure it is a legal right and therefore equitable injunction granted under AUXILLIARY JURISIDCTION NOT HERE – hence P must show that damages are inadequate (because in auxiliary)
BUT not all cases concern contract or statutory obligations.
There is also purely equitable obligation of confidence. Lack of common law tort of invasion of privacy has enlivened this are of equity: Campbell v MGN
The inadequacy of damages at common law is irrelevant in this jurisdiction.
- Person’s right to work
Equity developed a doctrine protecting a person’s right to work, irrespective of whether that person was a party to a contract which threatened or curtailed that right.
Nagle v Feildman:…the true ground of jurisdiction in all these cases is a man’s right to work…a man’s right to work at his trade or profession is just as important, if not more important than his rights or property. Just as the courts will intervene to protect his rights to property so they will also intervene to protect his right to work.
In Curro v Beyond Productions, it was observed that a man’s right to work is not a right in the strict sense. it is merely a liberty. ‘to convert the doctrine that there should be no reasonable retrained on employment into a doctrine that every man has the right to work is in my opinion to depart radically from…the common law, it is in the public interest that a man should be able to exercise his capacity to work. The law does not enforce a right to exercise that capacity; it does no more than remoce the unreasonable impediment upon its exercise.
Element 2: Court’ Discretion
If the P has unclean hands, there is delay, acquiescence or if justice will be best served by granting alternative relief, such as an account for profit, the injunction may be refused.
Purpose: protect common law rights and, in some cases, statutory rights
In order to obtain injunction here, P must show:
- cause of action
- Damages would be an inadequate remedy
- the court has discretion to grant injunction
Onus: P to establish both elements, although in second D bears the burden of establishing equitable defence if any.
Element 1: Cause of Action
Threshold is P must have a recognisable cause of action
Curro v beyond Productions: injunctions are granted to enforce existing rights and they are not a mechanism for creating new rights
The existence of a complete cause of action may be excused if the action is likely to crystallise in the near future à this is for application of quia timet injunction (see below)
Associated Newspaper Group plc v Insert Media Ltd: another qualification to the need to show cause of action is where there is an application for an anti suit injunction to restrain proceedings being brought in a foreign country
QUIA TIMET INJUNCTIONS
Lie to retrain threatened or apprehended legal wrongs
Necessary to prove that the common law action has crystallised: Associated Newspaper Group plc v Insert Media Ltd
Section 66(1) Supreme Court Act 1970 (NSW):
the court may at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury.
In order for an injunction to lie, the P’s right must be in the nature of property à this controversial
Windeyer J observed in relation to common law trade marks in Colbeam Palmer Ltd V Stock Affiliates Pty Ltd:
There is no doubt some circuity in saying that the protection which the court have by injunction to the P who had acquired trade marks by use and reputation made such trade marks a form of property – and then saying that the intervention by the court in such cases was based upon the protection of an equitable proprietary interest
The better view is that a right which constitutes or will constitute a cause of action is sufficient irrespective of whether property is protected: Cardile v LED Builders
Victoria Park Racing v Taylor:
…It is not because the individual has by his efforts put himself in a position to obtain value for what he can give that his right to give becomes protected by law and so assumes the exclusiveness of the property, but because the intangible or incorporeal right he claims falls within a recognised category to which legal and equitable protection attaches.
As was pointed out in above case by Dixon J, not all injuries to property are forbidden by law. in Moorgate Tobacco Co Ltd v Phillip Morris Ltd : HC rejected a new tort of unfair competition even though it would have protected the P’s property. à Example : in defamation is a statement is made which injures reputation of business, even though this will cause damage to recognised form of property in intellectual property law, if the D can prove justification or free speech, the injunction will be refused.
Dixon J’s requirement of a ‘recognised category’ does not prevent the development of new torts.
In Australian Broadcasting Corp v Lenah Game Meats Pty Ltd: HC left the door on the torts development for individuals.
Various causes of action which have supported in junction in auxiliary jurisdiction are listed below:
- Defamation: injunctions, particularly interlocutory injunctions, retraining the publication of defamatory material should only be granted in ‘exceptional’ or ‘very clear cases’: Chappell v TCN Channel Nine Pty Ltd
- Bonnard v Perryman: ..It is obvious that the subject matter of an action for defamation is so special as to require ‘exceptional caution’ in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which tis i for the public interest that an individual should possess, and, indeed , that they should exercise without impediment, so long as no wrongful act is done; and, unless an allege libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is unclear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the grating of interim injunctions.
- …It is one thing when the law imposes consequences..in cases of an abuse of the right of free speech. It is another matter for a court to interfere with the right of free speech prior to restraint. In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which include an individual’s in interest in his reputation. When, however, a court is asked to intervene in advance of publication wider consideration is involved. This is the main reason for the ‘exceptional caustion’ with twhich the power to grant an interlocutory injunction in a case of defamation is approached: Australian Broadcasting v O’Neill.
- Malicious Falsehood:
- In Swimsure (Laboratories) Pty Ltd v McDonald Hunt J granted application to continue an ex parte interlocutory injunction restraining a threatened malicious falsehood.
- Cases of Swimsure, Kaplan, and Beechwood illustrate Kirby’s observation (in dissent) in Australian Broadcasting v O’Neill:
Whilst free speech and the free press are important values in Australian law, they must find their expression and operation in a way that is harmonious with other legal values, including the protection of reputation, individual honour, privacy and the fair trial of legal proceedings.
- There is no reported cases where an injunction has been granted to restrain negligent conduct: observation of lord denning in Miller v Jackson
- In NSW it is clear that such injunctions can be granted under s 66 of SCA, because it empowers the court to retrain the commission of any tort.
- Thus, like injurious falsehood, even if damage is the gist of the action and no damage is actually proven, the injunction may be granted.
- An injunction will lie to restrain threatened or a continued nuisance, such as nuisance caused by noise: Vincent v Peacock; flooding: Bonnici v Ku-ring-gai Municipal Council; vibration: Shelfer v City of London Electric Lighting Co; and smell: Halsey v Esso Petroleum Co Ltd
- Kennaway Thompson: injunction granted restraining the use of speed boats on lake beside P’s property
- Champagne View Pty Ltd v Shearwatre Resort Management: injunction will be issued to restrain nuisance casued by the entry of golf balls on the P’s land
- Miller v Jackson: a majority refused an injunction to restrain the playing of cricket on a field beside the P’s property
- Passing Off:
- An injunction will ie to restrain tort of passing off.
- Injunctions have been granted even though the common law action would fail because of an absence of fraud: Conagra Inc v McCain Foods
- Question: whether in granting an injunction to retrain an innocent passing off, equity is acting in its exclusive juris. instead à Better view: it is acting in auxiliary because in granting injunction, the court effectively gives warning; thus, if the D ignores the notice, this will amount to fraudulent passing off.
- Conversion, detinue and trespass :
- In accordance with general principles an injunction will lie to restrain these torts if the common law remedy, usually damages will be inadequate.
- Burton v Spragg exparte interlocutory injunction was granted restraining further excavation of land adjoining P’s boundaries as subterranean intrusions into the P’s land. There was an imminent threat of the P’s house collapsing. FOUND that there was a prima facie case that the D’s action constituted trespass and an infringement of the P’s common law right to support. A interlocutory mandatory injunction was granted requiring the D to restore support to the P’s land.
- Assault : An injunction will lie to retrain a threatened assault.
- Inducing a breach of contract and interference with contract: An injunction will lie to retrain the economic tort of inducing a breach of contract, but ONLY if the breach is complete: Delphic Wholsalers Pty Ltd v Elco Food
- Injunction will also lie to retrain separate tort of interference with contractual relations: Jaddcal Pty Ltd
- Zhu v Treasurer of NSW: …injunction was available not only to protect “proprietry rights or rights in possession [stricto] sensu” but also to protect “rights created by a concluded contract” which were being tortiously interfered with.
- Contract: An injunction may lie to restrain a breach of contract.
- Dalgety Wine Estate Pty Ltd v Rizzon: His honour concluded that it was ‘impossible to formulate an illuminating statement of principle which is capable of universal application’ because the attitude of the court to enforcing negative contractual terms varies with the nature of the term, the nature of the contract the effect of the injunction on the parties and the character of the order required to enforce the term.
- above case was cited with approval in Cardile v LED Building observing that:
..the view once taken that an injunction should issue to restrain breach of a negative stipulation, without weighing the usual discretionary considerations, has been discounted as an overstatement”
- In Administrative and Clerical Officers’ Association v Cth Mason J refused injunction on the grounds that ACOA was really trying to enforce a positive covenant. His honour stated:
In substance, the injunction claimed is to enforce the affirmative stipulation. The stipulation is not negative in substance because mere inactivity on the part of the Cth would not constitute performance, performance requires deduction and payment to the P.
- There are ways of avoiding the rule against enforcement of positive stipulations. First, a positive stipulation in an executed contract may be enforced by specific performance, and secondly, a mandatory injunction may be available, although the court is reluctant to order this if specific performance is not available.
- Patrick Stevendores case: …A court whose jurisdiction is invoked in a conspiracy case has the power to grant an injunction to prevent the completion or effect of the conspiracy
- Restraining Breach of Statute:
- Injunctions may lie to enforce or prevent breaches of statutory provisions, but this is subject to the wording in the statute and it may also be affected by a consideration whether the right is public or private in nature.
- Australian Broadcasting Corp v Lenah Game Meats: Where interlocutory injunctive relief is sough in some special statutory jurisdiction which uses the term ‘injunction’ to identify a remedy for which it provides, that term takes its colour from the statutory regime in question.
- City of Stirling v Dueschen: Equity is not the ‘hand maid of the criminal law’ (Ramsay v Aberfoyle Manufacturing Co) and is reluctant to grant an injunction to restrain criminal conduct. But in exceptional cases ‘a court of equity may assist…if the likely future conduct at issue is also an infraction against the public right as well as an offence.
- Equity may also assist to retrain those who flout the law, to protect public safety: Australia Securities and Investment Commission v HLP Financial Planning; or if there is en emergence: Gouriet v Union of Post offie Workers
Element 2: Inadequacy of Damages
If common law remedies are inadequate, the injunction will be allowed.
In Irving v Emu & Prospect Gravel & Road Metal Co Ltd per Street J:
..The first principle of injunction law says…that prima facie you do not obtain injunctions to restrain actionable wrongs for which damages are the proper remedy. The equitable remedy by injunction in cases of actionable wrongs was designed to meet the case where there was either no remedy at all at law, or such remedy as there was, was inadequate.
Evans Marshall & Co Ltd v Bertola:
The standard question in relation to the grant of an injunction ‘are damages an adequate remedy?’ might perhaps, in light of authorities of recent year, be rewritten: ‘Is it just, in all circumstances, that the P should be confined to his remedy in damges?’
One way of proving inadequacy of damages is to show that D’s wrong or threatened wrong will cause irreparable harm or injury to the P, or third person, in the sense that it cannot be reversed by an award of damages.
- injunction will not ordinarily lie to retrain a trespass to or conversion of goods because damages will allow P to readily purchase substitution: Cook v Rodgers; UNLESS, goods have peculiar value to the person: Aristoc Industries Pty Ltd v Wenhman
- damages inadequate when:
- – D is impecunious: Franklin International Export v Wattie Exports
- – P has commenced multiple proceedings to obtain compete compensation
- – Passing off cases- rare for damages to be an adequate remedy because fo the need to prove fraud at common law: Totara Vineyards v Villa Maria and difficulty in assessing the loss of distinctiveness in the relevant indicia: Totara Vineyards v Villa Maria
- In contract cases the issue of inadequacy of damages in relation to the grant of an injunction if often distorted by the rule in Doherty v Allman. The effect of the decision is that the court will enforce negative stipulations irrespective of the use of whether damages would be an adequate remedy
- ..A court of equity can enforce by injunction a stipulation which is negative both in form and substance, even if the contract as a whole is not the subject matter of equitable jurisdiction and the breach complained of may be properly satisfied by damages: Ampol Petrolem v Mutton [OLD VIEW]
- Opposite view to above expressed in Wood v Corrigan: ..even an express negative stipulation will not, or should not, found an injunction to restrain breach of contract, if the contract as whole is not the subject matter if equitable jurisdiction, and the breach complained of may be properly satisfied by damages.
- JC Williams Ltd v Lukey and Mulholland (agreed with above): In an injunction suit, it is not sufficient to prove that a contract involves a substantial negative, where damages would be a complete remedy for the threatened breach and where the contract is of such a nature that it cannot be specifically enforced. This seems to be the principle which is gradually being evolved, and the result seems both just and convenient.
Element 3: Court’s discretion
Discretion: The court has absolute discretion in regard to the granting of an injunction. This discretion will only be exercised if:
- it is just and convenient that the injunction be granted
- there are no other remedies available
- all the circumstances of the case have been considered.
The court may refuse a plaintiff relief because of the plaintiff’s conduct has in some way been legally improper provided that conduct has an immediate and necessary relationship to the equity sued for: Official Trustee in Bankruptcy v Tooheys (1993) 29 NSWLR 641, 650 (Gleeson CJ).
The conduct relied upon need not have been intentional: Kettles & Gas Appliances Ltd v Anthony Horden & Sons Ltd (1934) 35 SR (NSW) 108, 130.
A plaintiff may obtain relief if it demonstrates that it has washed its hands of the wrongdoing: Kettles & Gas Appliances Ltd v Anthony Horden & Sons Ltd (1934) 35 SR (NSW) 108, 131.
A court may refuse relief if the plaintiff has delayed bring its claim but the defendant must show prejudice as a result; Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221.
The court must balance whether to grant the relief against:
- The length of the delay; and
- The acts done by either party in the interim that might constitute prejudice to the defendant.
- The plaintiff knowingly accepts an infringement of his or her rights;
- The plaintiff by silence makes a representation which may found an estoppel by conduct;
- The plaintiff has acted so as to waive or release his or her rights;
- The plaintiff has elected to abandon or not enforce his or her rights.
See Orr v Ford (1989) 167 CLR 316, 337 (Deane J).
DISCRETIONARY MATTES IN CONTRACT CASES – SEE PAGE 288
American Cyanamid Co v Ethicon Ltd: The object of the interlocutory injunction is to protect the P against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial
An interlocutory injunction is granted to preserve the status quo pending a hearing. The interlocutory injunction acts in support of the final relief whether it be a final injunction or some other relief if the refusal to grant the interlocutory injunction would render the final relief nugatory.
An interlocutory injunction can be granted ex parte. It can be for a fixed period of time or until further order à There is a strong obligation on a plaintiff in an ex parte application for an injunction to make a full disclosure of all relevant evidence to the court whether favourable or otherwise. Failure to do so will lead to the injunction being dissolved.
They are available in both mandatory and prohibitory form in both exclusive and auxiliary.
Principles governing injunctions apply here:
Principles applicable to all Injunctions
- The injunction must enforce a legal or equitable cause of action: Cardile v LED Builders
- Injunctions are always granted in the discretion of the court
- the injunction ‘ought to make clear what it is that the D is required to do or not do’: Currow v Beyond Productions Pty Ltd
In considering these principles, the court addresses two main inquiries. Beecham Group Ltd v Bristol Laboratories:
The first is whether the P 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 P will be held entitled to relief…
The second inquiry is whether the inconvenience or injury which the P would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the D would suffer if an injunction were granted.
These inquiries assist court with discretion BUT are not to be interpreted as ‘rigid formulae’
Guidelines are derived from principle that court should take whichever course appears ro carry the lower risk of injustice: Films Rover International Ltd v Cannon Film Sales
As the injunction is only interlocutory the court must deal with the issues in a provisional way. Thus:
- Hearsay evidence is always received. Thus the application will often be determined on minimal and substantially unproved facts.
- An agent’s authority is always presumed.
- No findings of credit are made.
- The court, although able to, will not usually embark upon deciding complex issues of fact or law.
The more urgent the application the more likely the court will rely on scant material.
In order to obtain an interlocutory injunction a plaintiff must demonstrate:
- A legal or equitable right at least to a prima facie level or show that there is a serious question to be tried.
- Irreparable injury would result injury would result if the injunction is not granted.
- It is just and convenient that the injunction be granted.
- That the plaintiff is not subject to any equitable defence.
- That the plaintiff is prepared to give an undertaking as to damages.
Element 1: Prima Facie Case
Australian Broadcasting v O’Neill : The P must be able to show ‘a sufficient colour of right to final relief to justify the grant of an interlocutory injunction’.
Beecham – threshold requirement for interlocutory injunction is:
…whether the P has made out the 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 P will be held entitled to relief.
It does not mean that it is more probable than not that the plaintiff would succeed in obtaining final relief but that there was a sufficient likelihood of success to warrant granting the injunction: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.
Lord Diplock rejected the prima facie test instead preferring that the plaintiff merely show that there is a serious question to be tried, that is, a triable issue. See American Cyanamid Co v Ethicon Ltd  AC 396; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1.
O’Neill (2006) case which resurrected approach in Beecham (PREFERRED):
By using the phrase prima facie case their honours did not mean that the P must show that it is more probable than not that at trial the P will succeed; it is sufficient that the P show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.
In determining what is likelihood of success Gummow and Hayne JJ approved Beecham:
How strong the probability needs to be depends, no doubt, upon the nature of the rights [the P] asserts and the practical consequences likely to flow from the order he seeks..
Decisions on evidence of law
In considering whether there is a prima facie case at an inter partes hearing, the court will have regard to the evidence and arguments on both sides.
American Cyanamid case:
It is not part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matter sot be dealt with at the trial.
Determinative Interlocutory Relief
Ordinarily the court will not conduct a preliminary or mini trial of the issues and give or withhold interlocutory relied upon a forecast as to the ultimate result of the case.
BUT if the decision on the interlocutory injunction is likely to determine in a practical sense the substance of the matter in issue, then in deciding the second element (balance of convenience) the court may evaluate the strength of the P’s case and final relief: Kolback securities Ltd v Epoch Mining
Onus on defendant
P does not have to show defence available to the D are so weak that they would be struck out as unarguably bad: Chappell v TCN
Element 2: Balance of Convenience
Beecham: Whether the inconvenience or injury which the P would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the D would suffer if an injunction were granted.
The P bears the onus of establishing that the balance of convenience favours the grant of the injunction: O’Neill case.
Numerous factors are taken into account and vary from case to case.
Recurrent factors are:
- Strength of P’s case:
- strength of Ps case and balance of convenience are separate and independent but must be examined together
- If P has strong case on the merits, then the balance of convenience is likely to favour P
- Hardship to either party or third party
- risk of irreparable harm of injury to P
- If damages in the measure recoverable at common law would be an adequate remedy and the D would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the P’s claim appeared to be at that stage: American Cyanamid
- In exclusive jurisdiction court does not consider adequacy of damage, it will consider whether the P should be confined to an account of profits or equitable compensation.
- Delay itself is not a disentitling factor: Nintendo Co Ltd v Care
- BUT unexplained delay can be fatal to the P’s application for interlocutory injunction
- If delay has cause substantial detriment: Gibson v The Minister for Finance; or has allowed the D to establish a business or enterprise, the balance of convenience will be against the P
- American Cyanamid : …to interrupt him [the D] in the conduct of an established enterprise would case much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.
- the sufficiency of the P’s undertakings as to damages – SEE BELOW
Undertaking as to damages
In seeking an equitable remedy, the P is required to do equity
P will be required to give an undertaking to the court that if the interlocutory injunction is later dissolved, the P will compensate the D for any injury or loss caused by the injunction: Beecham
The giving of an undertaking is an essential condition of the grant of an interim injunction… the P can elect to give the undertaking, in which case the injunction will run; or the P can decline to give the undertaking, in which even the injunction will not run…There is a usual form of undertaking as to damages…the court is required to exercise its judgement as to what is appropriate in order to ensure the reality of adequate compensation, and not merely an empty form of compensation to the party who is ultimately successful: First Netcom Pty Ltd v Telstra Corp Ltd
UCPR 25.8 Meaning of “usual undertaking as to damages”
(cf SCR Part 28, rule 7 (2))
The “usual undertaking as to damages”, if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking.
- It must be just and convenient to grant an interlocutory injunction: section 66(4) SCA.
- The Court weighs all the factors relevant to the case – including the hardship that the defendant may experience if the injunction is granted: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 155.
9 Specific types of injunctions
Quia timet Injunctions
An injunction either permanent or interlocutory may be granted to restrain either an apprehended or a continuing breach of a legal or equitable right. Where there has been no breach but the plaintiff can demonstrate that such breach is likely to occur if the injunction is not granted then the court will grant a quia timet injunction. A quia timet injunction is subject to the same principles that apply to an injunction restraining a continuing breach with the exception that in some cases it may be more difficult to prove a threatened breach than to demonstrate that a breach has already occurred.
Mandatory Injunctions – page 303
This type of injunction commands a person to do something rather than prohibiting them from doing something. It is usually only made as a permanent order. A mandatory injunction is granted on the same principles as a prohibitive injunction, although because of its positive nature it is sometimes more difficult to obtain.
A mandatory injunction differs from an order for specific performance in that the former enforces a particular obligation whereas the latter enforces an entire agreement. There are two kinds of mandatory injunctions:
- Restorative à Commands a person to do something rather than prohibiting them from doing something.
- Enforcing à Enforces an obligation (how is it different from an order for specific performance?)
The restorative injunction requires the defendant to make good the consequences of his or her wrongful act; e.g. to remove scaffolding from a building which constitutes a trespass: Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464.
The enforcing mandatory injunction compels a person to take a positive step which he or she has contracted for valuable consideration to do: Burns Philp Trust Co Pty Ltd v Kwikasair Freightlines Ltd (1963) 63 SR (NSW) 492.
To obtain a mandatory injunction in the auxiliary jurisdiction the plaintiff must prove:
- That if what has already occurred had been merely threatened the plaintiff would have been entitled to a quia timet injunction.
- Damages are inadequate.
Where the action is in the exclusive jurisdiction the requirement as to the inadequacy of damages is not required.
In Burns Philp Trust Co Pty Ltd v Kwikasair Freightlines Ltd the court held that if one positive stipulation only is sought to be enforced it is appropriate to look to see if that stipulation standing alone would be specifically performable and whether it is just to enforce it.
In Redland Bricks Ltd v Morris  AC 652, Lord Upjohn expressed the following principles:
- A strong possibility of grave damage in the future if no injunction is granted;
- Damages are inadequate;
- The defendant has behaved wantonly or unreasonably or whether hardship would be occasioned to a defendant who had behaved reasonably but wrongly;
- The injunction must be worded as to bring to the defendant’s notice exactly what it is required to do.
Item one is not necessarily correct when it comes to injunctions to remove a trespass.
Item three is in some way peculiar to mandatory injunctions with respect to wanton behaviour but the issue of hardship is also relevant to prohibitive injunctions.
The defence of hardship is often much easier to establish in the case of a mandatory injunction. However, where a defendant has knowingly acted in an unlawful way the hardship defence will not assist: Redland Bricks Ltd v Morris.
Where the mandatory injunction is of the enforcing kind the same defences apply as would apply to an application for specific performance.
Otherwise the same defences that apply to a prohibitive injunction will apply to a mandatory injunction.
A mandatory injunction will not be granted to enforce a statutory duty in a case where mandamus would lie: Blanch v Stroud Shire Council (1947) 48 SR (NSW) 37. But note the wrongful termination of a service pursuant to a statutory right can be restrained by a prohibitive injunction: see Bradley v Commonwealth (1973) 128 CLR 557.
Super and Anonymised Injunctions – see page 307
Mareva or Freezing Order – page 318
A court order restraining defendant from disposing of assets pending judgment: Mareva Compania Naveria SA v International Bulk Carriers SA  2 Lloyd’s Rep 509.
It is not a remedy in the fashion of an injunction and is not a form of final or interim relief. It is an order in support of final relief: Cardile v LED Builders Pty Ltd (1999) 162 ALR 294, .
Section 23 Supreme Court Act (NSW)
The court shall have all jurisdictions which may be necessary for the administration of justice in NSW.
While the name Mareva order continues to be used the name ‘freezing order’ is used in the Australian Harmonised court rules:
(1) The Court may make an order (a freezing order ), with or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.
Elements for granting Mareva or freezing order may be summarised as follow:
- The P has a judgement in their favour or a good arguable case
- The D has assets subject to the jurisdiction of the court
- There is a danger that a judgement will be unsatisfied due to the disposition or dissipation of the D’s assets
- The court’s discretion and the balance of convenience favours the granting of the remedy; and
- The P has provided undertaking to the court including the usual undertaking as to damages
Element 1: A Judgement or Good Arguable Case
Threshold test: P required a good arguable case or a prima facie cause of action against the D: Patterson v BTR Engineering
A good arguable case is ‘one which is more than barely capable of serious argument, and yet not necessarily one which the judge believes would have a better than 50% chance of success: Ninema Maritime Corp v Trave GmbH & Co KG
While test does not need to be on balance of probabilities, it has been found more difficult to satisfy than the ‘serious question to be tried’ test: Polly Peck International plc v Nadir;
The above is because a Mareva order ‘is a drastic remedy which should not be granted ligthtly: Cardile v LED Building
Fourie v Le Roux: The claimant cannot of course guarantee that he will recover judgement, nor what the terms of the judgement will be. But he must at least point to proceedings already brought, or proceedings about to be brought, so as to show where and on what basis he expects to recover judgement against the D.
The harmonised court rules now have two requirements:
- That the P either has a court judgement in their favour, or
- A goods arguable case on an accrued or prospective case of action
see example of s7.35 on pg 322
Element 2: Assets subject to the Court’s Jurisdiction
The P must establish that the D has assets subject to the jurisdiction of the court.
As the freezing order jurisdiction operated in personam the D’s assets need not be in Australia.
Assets could include:
- real estate
- a bank account
- a secured overdraft: Third Chandris Shipping Corp v Unimarine
- ship’s cargo
- car or
- goodwill: Cardile v LED Building
Court may make ancillary asset disclosure orders requiring D to:
- attend court for oral examination as to his assets
- disclose the ‘nature and location of particular assets: Pathways Employment Services v West
- deliver specified assets
- direct the Ds bank to disclose info to the P
- pay money into court
- appoint a receiver to the Ds assets
- order transferring assets from one foreign jurisdiction to another
ANCILLARY ASSET ORDERS ARE USUALLY MADE AGAINST PERSON WHO IS NOT PARTY TO PROCEEDINGS
Winter v Marac Australia: it was held that orders can be made in respect of assets held by third parties if the D has some right in respect of the asset or has control over or other access to the asset
Cardile v LED Building held that Mareva order could even extend to the shared or concurrent goodwill in a trade mark or trading name if its disposition by the third party is likely to affect the value of the Ds share in the goodwill.
Subject to the other elements being satisfied, the principles that should guide the courts in determining whether to grant an order against the third party are:
- the party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including ‘claims and expectancies’, of the judgement debtor or potential judgement debtor; or
- some process ultimately enforceable by the courts, is or may be available to the judgement creditor as a consequence of a judgement against that actual or potential judgement debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgement debtor to help satisfy the judgement against the judgement debtor.
See page 325 for rule 7.35 of Federal court rules which are equivalent to case above.
Freezing order is in personam and therefore may extend to assets outside Australia à
A freezing or ancillary order may be limited in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets.
If order extends to assets outside Australia, it should provide for the protection of persons outside Australia and third parties.
Talacko v Talacko: held that Mareva orders in respect of foreign assets are guided by 4 principles: see page 326 for principles in full detail.
- Provided D is subject to court’s jurisdiction, Mareva order can be made by court in respect of foreign assets
- Whether assets were in jurisdiction at time the proceedings were commenced, or have been, does not affect whether court has jurisdiction to make mareva order. However may be relevant to exercise of court discretion
- Jurisdiction should only be exercised in exceptional cases has not been followed in Australia. I do not accept that the discretion can only be exercised in exceptional cases
- The discretion will be exercised more readily after judgement
Additionally, the ‘long arm’ service rule provides that ‘a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not person is domiciled in Aus) if any of the assets to which the order relates are within the jurisdiction of the court: Rule. 7.37 FCR 2011
Element 3: Unsatisfied Judgement Danger
There had to be a ‘real risk’ or danger that the D would frustrate the judgement: Pelechowski v Registrar, Court of Appeal, either before or after the judgement, by absconding’ or dissipating his or her assets: Patterson v BTE Engineering
Rules now provide that there must be a danger that a judgement or prospective judgement will be wholly or partly unsatisfied.
(4) The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur:
(i) removed from Australia or from a place inside or outside Australia; or
(ii) disposed of, dealt with or diminished in value.
The term ‘Judgement’ is defined broadly to extend to ‘order’: r7.31 FCR
P will need to adduce evidence of risk of danger
Not sufficient to have:
- a mere assertion: Third Chandris Shipping Corp v Unimarine SA
- prima facie cause of action: Patterson v BTR Engineering
- an admission in without a prejudiced or privileged correspondence: Frigo v Culhaci
- insolvent D: Hortico Pty Ltd v Energy Equipment Co
- merely establishing that D intends to leave jurisdiction: Brereton v Milstein
BUT the danger may be a matter of inference if there is evidence from which ‘a prudent, sensible commercial’ person could ‘properly infer danger of default’.
If D fraudulent assists in establishing that if assets left in D’s hands they will not be preserved: Patterson v BTR Engineering
Element 4: Balance of Convenience and discretion
In common with all other equitable remedies, freezing order is only available in court’s discretion: Patterson v BTR Engineering
Cardile v LED Builders:
Discretionary considerations generally also should carefully be weighed before an order is made. Has the applicant proceeded diligently and expeditiously? Has a money judgement been recovered in the proceedings? Are proceedings available against third party? Why, if some proceedings are available have they not been taken? Why if proceedings are available again third party and have not been taken and the court is still minded to make a Mareva Order, should not the grant of the relief be conditioned upon an undertaking by the applicant to commence, and ensure so far as is possible the expedition of, such proceedings? It is difficult to conceive of cases where such an undertaking would not be required. Questions of this kind may be just as relevant to the decision to grant Mareva relief as they are to make a decision to dissolve it.
Element 5: Undertakings
The granting of Mareva order is conditional on P providing various undertakings to the court.
Most common is that it ‘should, in general, be supported by undertakings as to damages’ or the ‘usual undertaking as to damages’.
Held in Frigo v Culhaci that it could not conceive of circumstances where an ex parte mareva should be granted otherwise than subject to undertakings as to damages.
Apart from damages, P will usually undertake, as soon as practicable, to file and serve on the D copies of the order, the application for the order, the evidence and written submissions relied on at the hearing and, if available, the court transcript and originating process.
P may also be required to make undertaking to indemnify or pay costs of third party for their costs in complying with order
If order ceases to have effect – because D pays money to court or provides security – the P usually undertakes to promptly notify in writing affected persons that the order has ceased to have effect.
While freezing order should be framed according to the circumstances of the case, there are examples in the harmonised court practice notes for guidance
Typically the order will exclude the D’s legitimate dealings with their assets by allowing them, to pay for ordinary living expenses, reasonable legal expenses, debts and pursue the normal conduct of his or her business.
Dissolution and Variation
A freezing order without notice will usually be for a limited period and automatically terminate or dissolve on the return date of the application, an even or subject to a condition
The return date should be ‘as early as practicable’ and usually not more than a day or two after the order is made.
P and D may agree in writing to vary the exceptions to the freezing order.
A consent order signed by both parties recording the variation should then be filed with the court as soon as practicable and the court ‘may order that the exceptions are varied accordingly’.
An application by D to dissolve or vary order will normally be treated by court as urgent.
A variation will often be required for sale of an asset to proceed.
In order to completely discharge, dissolve or melt the freezing order, the D will ordinarily show that one of the elements was not satisfied, eg, deny the existence of a good arguable case or submit evidence showing that there has never been a real risk or danger of dissipation of Ds assets.
Another ground for dissolution is where the P has failed to make full disclosure of material facts at the ex parte hearing
If order is dissolved on the D’s application to the court then ordinarily the D will be entitled to an inquiry into damages. Cardile v LED Builders: another reason for care in exercising the power to grant a Mareva order is that there may be difficulties associated with the quantification and recovery of damages pursuant to the undertaking if it should turn out that the order should not have been granted…
The court has discretion to refuse to enforce the undertaking as to damages: Redwin Industries Pty Ltd v Feetsafe Pty Ltd or delay its implementation until the result of the principal litigation is known: Fourie v Le Roux
Anton Pillar Orders – page 333
Anton Pillar order or search order directs the D to allow the P’s representative to enter the D’s premise and search for and remove evidence that is in danger of being destroyed or hidden.
Aim of order is to preserve the evidence the subject of the P’s claim
- Orders allowing plaintiff to search the defendant’s premises and seize evidence relating to the plaintiff’s cause of action. It is not a search warrant which allows the Plaintiff to enter by force;
- There must be a real risk the defendant might destroy or suppress such evidence and thereby deprive the plaintiff of discovery;
- If entry is refused the defendant may be guilty of contempt of court which carries criminal sanctions: Anton Piller KG v Manufacturing Process Ltd  1 Ch 55
Usually ex parte which heightens the burden of satisfying the requirements.
The plaintiff must provide plain language description of the Order and permit defendant to get legal advice before order is executed.
The court may instruct a third party Supervising Solicitor to supervise execution.
Most courts have power to issue search orders FCAA s 23:
Court had power, in relation to matters which it has jurisdiction, to make orders of such kind, including interlocutory orders, and to issue or direct the issue of writs of such kind as the court think appropriate
r 7.44 FCR 2011: Nothing in this division diminishes the inherent, implied or statutory jurisdiction of the court to make a search order.
In order to obtain an Anton Pillar Order the P must:
- have an extremely strong prima facie case
- prove the damage, potential or actual, must be very serious
- have convincing proof that the D possesses incriminating documents or goods and there is a likelihood or real possibility that the D will destroy them
- provide various undertakings to the court including an undertaking as to damages; and
- convince the court that in its discretion it should grant the order
Element 1: Strong Prima Facie Case
Anton Piller KG v Manufacturing Process Ltd – because of the draconian nature of the order, there must be an extremely strong prima facie case.
P should establish a strong cause of action against the D
This does not mean that search order should be limited to the orecise casue of action known as this would limit the utility of the order: Aristocrat Technology Australia Pty Ltd v Global Gaming Pty Ltd
Where P can establish that he or she will suffer substantial damage by the D’s criminal act, proof of this will be sufficient: Ex parte Island Records Ltd
Due to obligation to make full and frank disclosure, P should inform the court of any known possible defences
Strong prima facie cases have been found in:
- copyright privacy: EMI Ltd v Pandit
- trade secrets and confidential info: Anton Piller KG v Manufacturing Process Ltd
- patent infringement: International Electronics Ltd v Weigh Data Ltd
- trade mark infringement: Tony Blain Pty Ltd v Jamison
- passing off: Sony Corp v Anand
- Assault: Ex Parte Mashini
- family law: Emanuel v Emanuel
- restitution: Yousif v Salama
- trusts: A v C
Categories are not closed by dominant use of the remedy is in intellectual property
Element 2: Serious Damage
Anton Piller KG v Manufacturing Process Ltdà the damage, potential or actual, must be very serious for the applicant
In cases of intellectual property and counterfeit goods the damage can be readily demonstrated by the potential or actual loss of sales and by the inferior quality of the D’s goods.
Serious damage in trade secret and misuse of confidential info cases, ie Anton Pillar case, by actual or potential disclosure to the P’s trade rivals.
Element 3: Likely Destruction of Incriminating Evidence
Anton Piller KG v Manufacturing Process Ltdà …there must be clear evidence that the D have in their possession incriminating docs or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made..
Rule 7.43 (c) is corresponding. see page 342
If the D does not intend to destroy the evidence but, intends to hide or remove it from the jurisdiction, this is sufficient: Microsoft corporation v Goodview Electronics Pty Ltd
The purpose of the order must not be for a ‘fishing expedition by the P: Hytrac Conveyors v Conveyors international Ltd
In deciding whether there is real possibility of destruction or cause it to be unavailable, the court is entitled to take into account the usual practice of pirates and copyright and the like: Busby v Thorn EMI video Programmes Ltd
Element 4: P’s undertakings and form of the order
P will need to give several undertakings to the court
Whole order should be subject to undertake as to damages: Foga systems international AB v Shop & Display Equipment
Security for its performance, may be required if P has insufficient assets within the jurisdiction
There is a proviso which preserves the privilege against self-incrimination and legal professional privilege of the D: PMSI Group v Wilson; The P should give undertaking that the D will be advised of his her right to obtain prompt legal advice before the order is executed.
To help protect abuse, P will be required to give undertaking to make available and pay the reasonable costs of an independent lawyer to explain the order and provide advice to D: Tony Blain v Jamison
See page 344 for rule 7.45 of FCR 2011 which provide examples of the form of the order.
‘Undertaking as to damages’ – John’s slide:
- In almost all cases the plaintiff will be required to undertake to pay any damage that may be suffered as a result of the order being wrongly given.
- Cannot be compelled but may be refused if not forthcoming.
- Where plaintiff is impecunious and has strong claim, the court will likely exercise its discretion to grant the relief: Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570.
- The Crown or person suing in ‘the public interest’ may not be required to provide undertaking: Ross v SRA (1987) 70 LGRA 91.
Element 5: Court’s Discretion
P must satisfy court that in its discretion the order should be granted.
The court will weigh in the balance equitable matters such as delay, acquiesce and unclean hands. – see under ‘element 3’ of auxiliary jurisdiction above
This is not search warrant and so P cannot forcefully enter
If D fails to comply with order, this will expose him to proceedings for contempt: Long v Specifier Publications Pty Ltd
Order will usually carry prominent waring that if D or any other person assisting D disobey order they will be liable to imprisonment, sequestration of property or other punishment
Anton Pillar case: the order is on D in personam to permit inspection. It is therefore open to him to refuse to comply with such order, but at his peril either of further proceedings for contempt of court – court will have widest discretion as to how to deal with it- but more important, ofcourse, the refusal to comply may be the most damning evidence against the D at the subsequent trial.
Search party cannot enter premises with D consent
D can only refuse entry until he she has obtained legal advice
D will also be guilty if they destroy docs prior to allowing search party in: Bhimji v Chatwani
Ps rep may be in contempt if they abandon control of seized item: WEA Records Ltd v Vission Channel 4 Ltd or allow unauthorised removal of docs or goods, or use info for purposes other than the proposed or initiated proceedings: VDU Installations Ltd v Integrated Computer Systems and Cybernetics Ltd
Court has power to imprison those in contempt but power is rarely exercised in relation to search orders: Fabrics v Myristis
Privilege against Self Incrimination
In Australia, legislation did not abolish right to privilege against self incrimination by provided process by which witness may claim the privilege but may still be required to give incriminating evidence in return for a certificate granting immunity from direct or indirect use: S 128A Evidence Act 1995 (Cth); EA 1195 (NSW)
Requires P to give an undertaking not to use seized evidence for any other proceedings
…The appellant will not without the leave of the court use any info, docs, or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding: Warman International Ltd v Envirotech
Search order may be discharged or dissolved if D shows that one of elements was not satisfied; or if inefficient or inadmissible evidence was relied upon to support the order; of if the P failed to give full and frank disclosure at the ex parte hearing; or if the P failed to comply with the terms of the order
Failure to make full and frank disclosure is most common ground.
Thomas A Edison Ltd v Bullock: it is the obligation of the P in ex parte hearings to bring under the notice of the court all facts material to the determination of his right to the injunction.
The P has a duty to the court to make full and frank disclosure of all material facts including possible defences and inability to meet the undertaking as to damages
Not all omissions lead to dissolution
Dormeuil Freres v Nicolian International Ltd: basic principle, applicable to all ex parte applications, that a P seeking ex parte relief must make full disclosure of all facts which are material to the exercise of the courts discretion whether or not to grant the relief…If disclosure is not made by P the court may discharge the ex parte injunction on that ground alone. But if in the circumstances existing when the matter comes before the court inter partes, justice requires an order either continuing the ex parte injunction or the grant of a fresh injunction, such an order can be made notwithstanding the earlier failure of the P to make such disclosure…there is no absolute right to have an exparte order obtained without due disclosure set aside; there is a discretion in the court whether to do so or not.
It is unlikely that order will be dissolved if non-disclosure was innocent and immaterial, in the sense that the injunction would still have been granted if disclosure was made: Lloyd’s Bowmakers Ltd v Brittania Arrow Holdings plc
If order is dissolved then in accordance with the undertakings as to damages, the P will ordinarily have to pay compensation to the D and third parties who have suffered loss due to the order
Examplary damages may be available where the order was executed oppressively or in excess of the power granted by it: Foga Systems International AB citing Columbia Pictures Industries Ltd v Robinson