Parties obtain an interlocutory injunction from the Court before the commencement of a trial. In doing so, parties ‘preserve’ their position until the Court makes a final decision. For a party to obtain an injunction, he or she generally needs to satisfy the Court of five separate elements.

  1. There is a serious question to be tried;
  2. You have tried to rectify the matter, and those attempts have not been successful;
  3. Damages are not enough to cure the wrong (that is, you can not be adequately compensated by an award of money);
  4. There is a reason for the urgent application; and
  5. The balance of convenience favours the Court making the order.

We will examine these in turn below.

What exactly does the Court mean when they say ‘serious question to be tried’?

In Australian Broadcasting Corp v O’Neill, the Court outlined the test for determining whether there is a serious question to be tried.  The plaintiff must make out a prima facie case (i.e. a rebuttable presumption) that at the trial, the applicant would obtain relief.

Do you have to try and resolve things before your application?

Unless the matter is urgent, ideally you will be able to demonstrate that you tried to solve the matter with the other party before lodging your application. This will form part of your evidence presented to the Court. You will want to show the Court that despite your attempts to resolve the issues, you were unsuccessful. If you do choose to bring an application, make sure you do so promptly. The Court does not look favourably on applicant’s who drag their feet in making an application.

Are damages enough to cure the wrong?

If monetary damages are sufficient to fix the problem, then an interlocutory injunction shouldn’t be granted. You will need to satisfy the Court that monetary damages will be insufficient and that you will suffer irreparable harm or injury. Your application will need to include evidence of this.

What does balance of convenience mean?

The balance of convenience requires the Court to weigh up the applicant’s interests against the defendant’s. If the defendant can show that the injunction’s cost and inconvenience outweigh the benefits and justice for the applicant, a court will be, unsurprisingly, reluctant to grant one.

Conclusion

Whether you are an applicant or defendant, if you are seeking or defending against an interlocutory injunction, you should obtain urgent legal assistance from a lawyer and a barrister. Barristers work with your lawyer and provide specialist advocacy assistance to formulate your application and response.

Questions? Get in touch with LegalVision’s litigation lawyers on 1300 544 755.

Emma George

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