INJUNCTIONS

1          Nature of injunctions

1.1 Definition:  An injunction is an order of the court which either prohibits/forbids a person or legal entity from performing an action or requires the person or legal entity to do something.

Purpose: To protect the rights of a person or legal entity in situations where the infringement of these rights would have consequences which could not be remedied either by damages or other remedy.

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.

1.2          Classification of Injunctions

Injunctions may be classified according to their purpose and duration.

Purpose:              prohibitory (prevents something being done) or negative

                                mandatory (requires something to be done) or positive

                                quia timet – which prohibits the commission of threatened action.

Duration:             interim: temporary

                                interlocutory: until the hearing of the matter has been completed

                                final/perpetual

Injunctions may also be ex parte – i.e. heard in the absence of the party against whom the injunction is sought. 

Therefore, it is possible to have an interim ex parte quia timet interim injunction.

1. 3 Other types of injunction

Mareva order or injunction: This was first granted to prevent a debtor from removing assets out of the jurisdiction of the court ( Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep. 509; {1980} 1 All ER 213) and is commonly used to prevent a defendant from dealing with property before the final hearing of a matter. As with all prohibitory injunctions, the purpose of a Mareva injunction is to preserve the status quo between the parties.

Anton Piller order was initially used to protect intellectual property, such as copyright, by preventing the distribution of illegally copied material (Anton Piller KG v Manufacturing Process Ltd [1976] Ch 55; [1976] 1 All ER 779). Today its use has been extended to include the protection of documents with evidentiary value from being destroyed before the final hearing of a matter.

Anti-suit injunctions to restrain the pursuit of proceedings in an overseas court

Orders directing a party to litigation in Australia from pursuing simultaneously, or at all, litigation about the same or a related issue in an overseas jurisdiction: CSR  & CSR America Inc v Cigna Insurance Australia  & ors (1996-7) 189 CLR 345.

2. Uses of injunctions

An injunction can either be given as final relief so that a person is restrained permanently or the injunction can be interim or temporary or interlocutory, restraining action and preserving the status quo until the determination by the Court of the issues between the parties.  Injunctions can be granted on an ex parte basis where the court is satisfied that irreparable harm may arise in the short term if such injunction is not granted immediately.

Ex parte and other interlocutory injunctions are not normally granted unless the plaintiff gives an undertaking to pay for any damage suffered by the defendant by the granting of the interlocutory relief should a final injunction not be granted.  Further, a Mareva or Anton Piller order may be granted on an interlocutory basis to assist in the retention of the status quo pending determination of the proceedings.

3. Jurisdiction

3.1 Historically, the injunction developed in equity as part of the Lord Chancellor’s Court of Chancery. The objective of the remedy was to relieve subjects from the harshness of the common law, or at least the deficiencies in the remedies it provided.  In many situations the only common law remedy was (and still is) monetary damages.

The power that was once with the Court of Chancery now resides in the statutes governing court jurisdiction, notably the Supreme Court Act 1970, especially the provisions that derive from the English Judicature Act.

In NSW, the power to grant an injunction comes from Section 66, Supreme Court Act 1970 (NSW).   Although injunctions may now be granted in any Division of the Supreme Court as a result of the adoption of the Judicature System, the power to grant injunctions is not for this reason extended beyond that which a court of equity possessed prior to the adoption of the Judicature Acts: North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30.

The most important power is in s 66 of the Supreme Court Act, which states:

(1)          The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury.

(2)          Subsection (1) applies as well in a case where an injury is not actionable unless it causes damage as in other cases.

(3)          The Court may restrain any threatened or apprehended waste or trespass pursuant to this section:

(a)          whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and

(b)          whether the estate claimed by any party is legal or equitable.

(4)          The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do.

However, there may be powers in other statutes to award injunctions in a broad or limited capacity. 

Under the specific statutory injunction powers (for instance, section 80 of the Trade Practices Act and section 1324 of the Corporations Act) the courts grant injunctions set out in specific legislation.  However, in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Gaudron, McHugh, Gummow and Callinan JJ  held that S 66 of the Supreme Court Act, and a similar provision in s 23 of the Federal Court Act, do not give the courts power to grant interlocutory or other injunctions on the “just and convenient” or the “appropriate” basis, except with  reference to ‘some legal or equitable right which the injunction protects against invasion or threatened invasion, or other  unconscientious conduct or exercise of legal or equitable rights’.  They noted that

[T]the injunctive remedy is still the subject of development in courts exercising equitable jurisdiction.  Thus, whilst once there may have been an absolute requirement that, negative covenants aside, before an injunction might be granted in aid of a legal or statutory right, the right must be proprietary in nature, in modern cases….there has been no advertence to such a requirement.  Again, in this Court, 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….  The use of the anti-suit injunction, at least if granted in aid of contractual rights and obligations, is another example of development of traditional doctrine.”

Their Honours said that all interlocutory orders are made on the basis of ensuring “the effective exercise of the jurisdiction invoked” and that the Mareva order [asset preservation order] is the “paradigm example” of such an order. 

They noted that the jurisdiction to make such orders should be exercised ‘according to the exigencies of the case and, the schemes which a debtor may devise for divesting himself of assets being legion, novelty of form is no objection to the validity of the order’ (citing Jackson v Sterling Industries (1987) 162 CLR 612, 621).

3.2          The Exclusive and Auxiliary Jurisdictions:

The exclusive jurisdiction was that jurisdiction of the Court of Chancery to grant injunctive relief to protect purely equitable rights – for example, to restrain a breach of trust.  On the other hand, in its auxiliary jurisdiction, equity granted injunctive relief to protect common law rights (a purely legal right) – for example, to restrain a breach of contract.

ELEMENTS: To obtain an injunction in the exclusive jurisdiction the plaintiff must:

• Establish an equitable cause of action; and

• Persuade the court to exercise its discretion to grant the injunction;

• Not be subject to an equitable defence such as laches, acquiescence or unclean hands.

In the exclusive jurisdiction there is no requirement that damages be an adequate remedy as traditionally damages were not available in this jurisdiction: Nocton v Lord Ashburton [1914] AC 932.   Nor must a plaintiff prove that the equitable right is proprietary in nature: Duchess of Argyll v Duke of Argyll [1967] Ch 302, 322.

ELEMENTS: To obtain an injunction in the auxiliary jurisdiction the plaintiff must:

• have a legal right; and

• the legal right must be of a proprietary nature;

• which has been threatened or has already been infringed;

• The infringement is likely to be continued or repeated; and

• Damages are an inadequate remedy.

An injunction cannot be obtained to restrain dishonourable conduct or prevent injury that does not amount to a legal wrong; White v Mellin [1895] AC 154 and Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337, 350 (Meagher JA).

An injunction can be obtained against a person who has committed no legal wrong to the plaintiff if it is necessary in order to obtain full relief against another to whom one has a good cause of action; Jonray (Sydney) Pty Ltd v Partridge Bros Pty Ltd (1969) 89 WN (Pt 1) (NSW) 568.

4. Adequacy of Damages

Historically common law wrongs were to dealt with by the common law remedy of damages, so that the mere infringement of legal rights was not enough to obtain equitable relief: Proctor v Bayley (1889) 42 Ch D 390, 398.  Damages will be inadequate where without an injunction the plaintiff will suffer irreparable harm that cannot be remedied by an award of damages: see Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464.

Because of the requirement that damages be inadequate, historically, equity only granted an injunction in the following cases:

• Waste

• Nuisance

• Infringement of patents

• Infringement of copyright

• Breach of negative stipulations in contract

However, today injunctions are not confined to these types of cases as the courts accept that there may be a great many situations in which damages may be inadequate.

A more modern view focuses not on whether damages are inadequate, but whether the plaintiff should be confined to the remedy of damages: Evans Marshall & Co Ltd v Bertola SA [1973] 1 All ER 992, 1005 (Sachs LJ).  More recent cases seem to suggest that the role of the court is to look for the most appropriate remedy available, rather than having an hierarchical structure of available remedies: Bathurst City Council v PWC Developments (1998) 157 ALR 414; Maguire v Makaronis (1997) 72 ALJR 781, 804-805 (Kirby J).

What is the rationale for the rule that a court should not grant an injunction if common law damages will adequately compensate the applicant for any loss that might be sustained as a result of the respondent’s actual or threatened violation of the applicant’s rights?  See Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349; Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464.

5        Some Special cases

The categories of cases to day where the court can grant injunctive relief are extremely broad and are subject only to the above restrictions.   There are however some categories worthy of special mention.   What is mentioned below is by no means exhaustive.

5.1          Restraint of Trade

An injunction will lie to restrain a person from attempting to enforce an unreasonable restraint of trade.   This may be so notwithstanding that there is no relationship in tort or contract between the parties; Buckley v Tutty (1971) 125 CLR 353.   The court seemed to proceed on the basis of recognising some right to work at one’s trade or profession as supplying the necessary legal or equitable right to found the injunction; Nagle v Fielden [1966] 2 QB 633.

5.2          Defamation

Historically a court of equity would not restrain a personal libel not amounting to a trade libel (injurious falsehood).   Principally this was because the plaintiff had no proprietary right and the court was loathed to pre-empt the common law, which required the trial of an action for defamation to be before a jury.

The effect of s.66 is that the Supreme Court today has power to restrain not only the continuance or repetition of a defamation but also a threatened publication: Stocker v McElhinney (No2) (1961) 79 WN (NSW) 541.

As a general rule the court will grant an interlocutory injunction to restrain a defamation only in the clearest of cases such that the court is not only satisfied that the proposed publication is clearly defamatory but that there is also no defence to it: Chappell v TCN Channel Nine Pty Ltd (1988) 4 NSWLR 153.

5.3          Privacy

There is no recognised cause of action with respect to pure infringement of privacy: GS v News Ltd (SCNSW, 20 February 1998, Levine J, unreported).  See also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, [132].  But privacy can be protected where it is infringed in the course of a breach of another cause of action.

The mere taking of a photograph of another without their consent is not restrainable unless the photograph is taken in breach of contract, breach of confidence, is defamatory or taken for a criminal purpose.   There is an exception with respect to a photograph of a ward of the court and possibly an offensive photograph: Bathurst City Council v Saban (1985) 2 NSWLR 704, 707-708.

A court will not grant an injunction to prevent a threatened breach of privacy but will do so where a video was made as a result of a trespass or a breach of a search warrant; Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570.  However the mere fact that a video made as a result of a trespass is obtained by a person not a party to that trespass will not of itself make it unconscientious for that part to make use of the video; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 17 (Gleeson CJ).

Even if a privacy is breached by the commission of a trespass, the court will not restrain a photograph or video taken as a result unless damages would be inadequate and irreparable harm would result if the injunction was not granted: Lincoln Hunt (Aust) Pty Ltd v Willesee (1986) 4 NSWLR 457.

Recent authority suggests that privacy can be protected by an action for breach of confidence where information or images are obtained which are of a private nature and it would be unconscionable to use that information or image: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 14, 17.

5.4          Confidential Information

A court will protect the misuse of confidential information.   Where the obligation to maintain the confidence derives from contract then the court will in its auxiliary jurisdiction grant an injunction.  In more recent times the courts have come to regard the duty of confidentiality to be an equitable duty (albeit in some cases also a contractual duty).   The basis of the equitable duty is that a person who receives information in confidence shall not take unfair advantage of it: Seager v Copydex (No 1) [1967] 2 All ER 415, 417 (Denning MR).   See also Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414, 438 (Deane J).

5.5          Negative Stipulations in Contracts

As a general rule a court will not by injunction enforce a positive stipulation in a contract but will enforce by way of injunction a negative stipulation: Doherty v Allman (1878) 3 App Cas 719, 720.   See Curro v Beyond Productions Pty Ltd at 346-347 which doubted the universality of this proposition.  The stipulation must be negative in substance not just in form.   The court will not enforce a stipulation which is positive in substance; e.g. ‘not to give notice’: Kirchner & Co v Gruban [1909] 1 Ch 413; Administrative & Clerical Officers Association v Commonwealth (1979) 26 ALR 497.

A negative stipulation may be express or implied.  It will be implied inter alia in any contract in which one party grants the other an exclusive right.   In such case the implied negative stipulation is an undertaking not to derogate from that right; O’Keefe v Williams (1910) 11 CLR 171, 191 (Griffiths CJ) and 211 (Issacs J).  Although this means that there is a very wide category of case where an injunction will lie the court will not grant an injunction where:

1. The contract is for the sale of chattels.

2. The contract would require the court’s supervision.

3. The contract is for personal services.

What is the rationale of the rule that injunctions can only be granted to restrain breaches of contractual provisions that are negative in substance?  See Doherty v Allman (1878) 3 App Cas 709; Administrative & Clerical Officers Association v Cth (1979) 26 ALR 497.  What are some of the criticisms of this rule?

5.6          The contract is for the sale of chattels

The exceptions are:

• Heirlooms

• Unique value

• Sentimental value

• The entire stock in trade of the plaintiff

• Damages are inadequate

5.7          The contract would require the court’s supervision

In some cases where the defendant’s obligation is dependant on the plaintiff’s observation of the stipulations binding on it an injunction will be granted; JC Williamson Ltd v Lukey & Mulholland (1931) 45 CLR 282, 299-300 (Dixon J).   But this is always problematic.

5.8          The contract is for personal services

These fall in to three categories:

1. Contracts containing in effect positive stipulations such as covenants not to terminate a contract (which are usually not enforced) as they would force one person to work for another; but this will not always be the case. But see Hill v C A Parsons & Co Ltd [1972] Ch 305.

2. Contracts containing covenants not to take employment with other employers. These are negative stipulations but they will not be enforced as to do so would force a defendant to work for a person against their will or choose unemployment.

3. Contracts involving ‘special services’ where the defendant stipulates not to use his or her services in the employ of a rival; Lumley v Wagner (1852) 1 De G M & G 604; 42 ER 687.

In cases such as these, the injunction will lie as the defendant is not forced into unemployment as he or she can take other employment provided it does not involve the use of those ‘special services’: Curro v Beyond Productions at 348D-F.

But if the effect of the injunction would be to force the parties into a relation of trust and confidence the injunction may not be granted; Page One Records v Britton [1967] 3 All ER 822.  However, the mere fact that it might be economically unappealing to take other employment is not enough to refuse the injunction: Warner Bros v Nelson [1937] 1 KB 209.

May an injunction be granted despite the contract being for personal services?  What is the difference between Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 and Page One Records v Briton [1967] 3 All ER 822 and Warren v Mendy [1989] 3 All ER 103?

6. Injunctions in Aid of Statutory Rights

The right granted must be a private right.  If it is a public right then the plaintiff will need to establish standing.  The statute must create a right (either expressly or impliedly) that is capable of enforcement: King v Goussetis (1986) 5 NSWLR 89.   The court will have regard to a number of circumstances including the nature, scope and purpose of the statute.  It seems that a plaintiff does not need to establish a proprietary right in these cases; Bradley v Commonwealth (1973) 128 CLR 557.

7. Discretionary Factors

7.1          Unclean hands

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.

7.2          Laches

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.

7.3          Acquiescence

• 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).

8. Considerations for granting injunctions

8.1          Prima Facie / Serious Question

In Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 it was held that the plaintiff had to show a prima facie case.   Kitto J interpreted this as meaning not 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.   In other words, a real or prima facie possibility of success.

In American Cyanamid Co v Ethicon Ltd [1975] AC 396, Lord Diplock rejected the prima facie test instead preferring that the plaintiff merely show that there is a serious question to be tried.   In other words, a triable issue.

There is considerable debate as to whether there is in fact a difference between the two tests.  The NSW Court of Appeal thought not in Shercliffe v Engadine Acceptance Corp Pty Ltd [1978] 1 NSWLR 729, based on Kitto J’s formulation above which the court accepted as referring to the possibly of success rather than probability.

However in ACOA v Commonwealth (1979) 26 ALR 497, Mason J thought there was a difference and preferred Beecham.   In Australian Course Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 279, Gibbs CJ preferred American Cyanamid.   The weight of first instance and intermediate appeal court decisions seem to favour American Cyanamid.   In Murphy v Lush (1986) 60 ALJR 523 the High Court appears to have accepted the test of a triable issue without referring to American Cyanamid.

It would now seem that the serious question to be tried test has been adopted; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 6.  This means that there must be some legal or equitable basis to the obtaining of the interlocutory injunction.  It is not enough to claim that the status quo must be preserved or that it would in some unexplained way be unconscionable not to grant the injunction; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 7.

In practice it is desirable to at least set out to prove the Beecham test on the basis that the stronger the plaintiff’s case the more disposed the court may be to grant an interlocutory injunction all else being equal.

There are two situations where the Beecham test should be applied:

1. Where the granting an interlocutory injunction would in practical terms have the effect of final relief: Kolbach Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533.

2. In the exceptional case where an interlocutory injunction is sought without the giving of an undertaking as to damages.

8.2          Irreparable Injury

This requirement does not apply in the exclusive jurisdiction at least with respect to the adequacy of damages.

Irreparable injury is injury that cannot be compensated for by way damages, account of profits or some other interim relief; Attorney General v Hallett (1847) 16 M & W 569, 581 (Alderson B).

8.3          Balance of Convenience

Section 66(4), Supreme Court Act 1970 (NSW) requires that it must be just and convenient to grant an interlocutory injunction.  This requirement essentially allows the court to weigh all the factors relevant to the case.   Primarily this means the court will look at the strengths and weaknesses of the case.   Where the plaintiff has a strong case this will favour the granting of the injunction: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 155.  The court will also look to the hardship that the defendant may experience if the injunction is granted.

9        Specific types of injunctions

9.1          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.

9.2          Mandatory Injunctions

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

• Enforcing

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:

1. That if what has already occurred had been merely threatened the plaintiff would have been entitled to a quia timet injunction.

2. 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 [1970] AC 652, Lord Upjohn expressed the following principles:

1. A strong possibility of grave damage in the future if no injunction is granted;

2. Damages are inadequate;

3. The defendant has behaved wantonly or unreasonably or whether hardship would be occasioned to a defendant who had behaved reasonably but wrongly;

4. The injunction must be worded to 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.

9.3          Interlocutory Injunctions

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.

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.

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:

1. A legal or equitable right at least to a prima facie level or show that there is a serious question to be tried.

2. Irreparable injury would result injury would result if the injunction is not granted.

3. It is just and convenient that the injunction be granted.

4. That the plaintiff is not subject to any equitable defence.

5. That the plaintiff is prepared to give an undertaking as to damages.

Discuss the law relating to interlocutory injunctions as found in American Cynamid v Ethicon Ltd [1975] AC 396.  What does it say about the element of the remedy?  See also Beecham Group v Bristol Laboratories (1968) 118 CLR 618.  What are the elements of the test for obtaining an interlocutory injunction?

10. Mareva orders

10.1 This is an order of the court that restrains the defendant from disposing of its assets pending judgement.   The rationale is that if the order were not granted the defendant could dispose of its assets and thereby frustrate the judgement of the court by denying the plaintiff any real chance of recovery by way enforcement.

The order is named after the case which developed the principle: Mareva Compania Naveria SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509.  A Mareva order is not in fact a remedy in the same way an injunction is.  It is not a form of final or even interim relief, rather it is an order made in support of the final relief.   The High Court has recently expressed the view that it is inappropriate to describe this order as an injunction; Cardile v LED Builders Pty Ltd (1999) 162 ALR 294, [25].  The High Court has recently affirmed that the jurisdiction to grant a Mareva order lies in the general power of a superior court to make orders in the administration of justice: Cardile v LED Builders Pty Ltd at [42] and Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 29.

To obtain a Mareva order a plaintiff must show:

1. A prima facie cause of action.

2. That the defendant has assets within the jurisdiction.

3. That there is a real risk that the defendant will dispose of those assets ands thereby frustrate the enforcement of any judgement.

4. The balance of convenience favours the plaintiff.

5. That it is prepared to give an undertaking as to damages.

10.2        Prima Facie case

This means that the Beecham test will apply: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 321 (Gleeson CJ).

10.3        Assets within the jurisdiction

This can include assets in the hands of third parties if the defendant has some control over those assets: Winter v Marac Australia (1986) 7 NSWLR 11 and Cardile v LED Builders Pty Ltd (1999) 162 ALR 294.

10.4        Disposal

There must be a real risk of a disposal that will frustrate the enforcement of the injunction:  Patterson v BTR Engineering (Aust) Ltd.  It is not enough to assert the risk, it must be shown by evidence: Third Chandris Shipping Corp v Unimarine SA [1979] QB 645, 669 (Denning MR).

The defendant’s insolvency does not demonstrate disposal: Hortico (Aust) Pty Ltd v Energy Equipment Co (Aust) Ltd (1985) 1 NSWLR 545, nor does the defendant’s departure from the jurisdiction: Bereton v Milstein [1988] VR 508.   But these factors if combined with other evidence may help to establish a real risk of disposal.

10.5        Balance of Convenience

As the order is discretionary the court will weigh the factors applicable to interlocutory injunctions generally but the court will also have regard to the particular hardship a Mareva order may have on a defendant’s financial and business interests.   Thus an order should not be drawn in such a way as to tie up all the defendant’s assets and income leaving the defendant destitute.

Discuss the elements of Mareva orders and consider what must be demonstrated in order to obtain one at an interlocutory hearing.  Consider Jackson v Sterling Industries (1987) 162 CLR 612 and Cardile v LED Builders Pty Ltd (1999) 162 ALR 294.  Are Mareva orders really injunctions?  Can they be justified?

11. Anton Piller orders

These are orders directed to the defendant to allow the plaintiff to search the defendant’s premises and seize evidence found on those premises relating to the plaintiff’s cause of action in circumstances where there is a real risk the defendant might destroy such evidence and thereby deprive the plaintiff of discovery.  An Anton Piller order is not a search warrant the plaintiff cannot enter by force.   The order is directed to the defendant who if he or she refuses entry to the plaintiff is guilty of contempt.

The order is so named after the decision in Anton Piller KG v Manufacturing Process Ltd [1976] 1 Ch 55.   The order was originally used in intellectual property cases but can be used in any case if appropriate grounds exist.  Like the Mareva order, the Anton Piller order is not truly a form of final relief but an order that preserves evidence pending the trial.  The jurisdictional basis for these type of orders lies in the court’s power to preserve property the subject of evidence in the trial:  Rank Film Distributors v Video Corp Centre [1982] AC 380.

The plaintiff must demonstrate:

1. An extremely strong prima facie case.

2. Serious irreparable damage.

3. Convincing proof that the defendant has the documents or goods as the court will not permit a ‘fishing’ expedition.

4. A real possibility that the defendant will destroy the documents or goods.

5. A willingness to provide undertakings.

As the orders by nature are usually ex parte the obligations on the plaintiff to establish the above elements are heightened.

The plaintiff will usually be required to give an undertaking to explain to the defendant the effect of the order in plain English and to advise and permit the defendant to obtain legal advice before the order is executed.   In some cases the plaintiff may be required to provide an independent solicitor at the time of execution of the order to provide advice; Tony Blain Pty Ltd v Jamison (1993) 26 IPR 8.

In some cases the court may make a ‘roving’ Anton Piller order against unnamed third parties who the court believes have close ties with the defendant and who are acting as part of a common enterprise with the defendant; Tony Blain Pty Ltd v Jamison.

Anton Piller orders are particularly useful in intellectual property cases.  What are the elements that must be established in order to obtain such an order?  Discuss with reference to Anton Piller KG v Manufacturing Process Ltd [1976] 1 Ch 55; 1 All ER 779.  What is a ‘roving’ Anton Piller order and how does it operate?  See Tony Blain Pty Ltd v Jamison (1993) 26 IPR 8.

12. Undertakings as to damages

In almost all cases where an interlocutory injunction is sought including Mareva orders and Anton Piller orders the price of obtaining the injunction is the plaintiff’s undertaking given to the court to pay any damage that may be suffered as a result of the injunction being wrongly given.

Part 28 rule 7 of the Supreme Court Rules extends this undertaking to include damage suffered by third parties.

An undertaking cannot be compelled but relief will be refused if it is not forth coming.

The only exception appears to be injunctions given at the suit of the Crown.   However in Ross v SRA (1987) 70 LGRA 91 a person suing in ‘the public interest’ may not be required to give such undertaking.

But as the relief is in the discretion of the court the undertaking could be dispensed with in cases where an impecunious plaintiff has a strong claim and would suffer severe detriment if relief was not granted; see Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570.

The undertaking as to damages continues even if the application fails or is dismissed: Newby v Harrison (1861) 3 De G F & J 287; 45 ER 889.

Why is an undertaking as to damages almost always sought as a condition of granting an interlocutory injunction?  What advice should a prudent solicitor give to the client from whom the undertaking is sought?

13.     Effect of non-compliance with order

Breach of an injunction is a contempt of court, which can be criminal if the breach is contumacious (deliberate and/or in direct disobedience to the order), and can be punished, especially if serious, with imprisonment even if it falls within the technical classification “civil contempt:” Witham v Holloway (1995) 183 CLR 525;

Long  v Specifier Publications Pty Ltd (1998) 44 NSWLR 545

This risk emphasises the need for clear and precise framing/drafting of injunctions.

A court will always take great care to ensure that any injunction is framed with precision, so that what is prohibited, and/or what the parties are obliged to do, is clear in practice, not just in theory.

Lack of precision in framing an injunction from the standpoint of practicalities is a common cause of appellate intervention in decisions at first instance to grant injunctions; Redlands Brick v Morris.

14.     Remedies in public law as alternatives to injunctions

The injunction for the enforcement of public statutory rights developed partly in response to the limitations which traditionally governed the common law remedy, the prerogative writs.  A writ is a Court order reflecting the history that the courts are emanations of the power of the sovereign, and thus traditionally expressed as royal commands;

The prerogative is the part of sovereign power that is not governed or granted by statute;

The main prerogative writs are: prohibition – the order to prevent an inferior court or tribunal from exceeding its jurisdiction; certiorari – the order to quash the decision of an inferior court or tribunal for error of law; and mandamus – the order to a court or official to perform a duty it or they are omitting to address;

These three writs are now largely displaced by orders under section 69 of the Supreme Court Act in State matters and section 16 of the AD (JR) Act in Federal matters, except where the jurisdiction under section 75(v) of the Constitution is relied on, as in many immigration cases.  In constitutional  cases and other cases involving the Commonwealth Government, its officers and authorities, the traditional prerogative writ jurisdictions in respect of mandamus and prohibition, as well as the traditional equitable injunction jurisdiction are constitutionally enshrined); and

habeas corpus – the traditional remedy for wrongful incarceration of the kind that has occurred at Guantanamo Bay, which is preserved by section 71 of the Supreme Court Act.  See generally: Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund (1998) 194 CLR 242