Understanding Injunctions

An injunction is an equitable legal remedy that can order a party to do something specific or, more commonly, to refrain from certain actions. Injunctions are typically used to prevent or mitigate harm and are therefore used by the courts as an invaluable tool to ensure justice and equity. Injunctions cannot be used if common law damages would be considered adequate compensation.

Injunctions can arise under many areas of law, such as equity, although are primarily established under the Civil Proceedings Act 2011 (Qld)[1] which grants the courts power to issue injunctions as remedies in civil matters.

Section 9 of the Civil Proceedings Act 2011 (Qld) authorises courts to grant injunctions when required to prevent harm, safeguard legal rights or preserve the existing state of affairs, stating that:

(1) If a court has jurisdiction to hear an application for an injunction, the court may, at any stage of a proceeding, by injunction, restrain a threatened or apprehended breach of contract or other wrongful conduct.

(2) If waste or trespass is threatened or apprehended, for subsection (1), it does not matter whether—

(a) the person against whom the injunction is sought (the
“relevant person”) is in possession under any claim of title or otherwise; or

(b) if the relevant person is not in possession, the relevant person claims a right to do the act sought to be restrained under any claim of title; or

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

(3) The court may also, at any stage of a proceeding, grant an interlocutory injunction if it considers it just or convenient.

Types of Injunctions

Injunctions are categorised according to their intended function. Each type fulfils a distinct role depending on the legal circumstances. They include:

Prohibitive Injunctions.

This type of injunction restrains a party from performing a particular act. Prohibitive injunctions are typically applied where ongoing or future conduct undermines another party’s rights.

Mandatory Injunctions.

In contrast, mandatory injunctions compel a party to take a specific action, often to rectify a situation or prevent further damage.

These inunctions are typically less common because they require active steps and are only utilised when necessary to prevent injustice that cannot be resolved otherwise.

Interlocutory (Temporary) Injunctions.

Interlocutory or temporary injunctions are interim orders issued early in litigation to preserve the status quo until the case is resolved.

In practice, an interlocutory injunction might be used to stop ongoing harm while the parties prepare for trial.

Permanent Injunctions.

A permanent injunction is a final remedy granted at the conclusion of a trial. It becomes part of the final judgment and restrains conduct on a continuing basis.

The court typically grants a permanent injunction only if it is satisfied that the plaintiff’s rights were violated and that future harm is likely unless the injunction remains in force.

Mareva Orders – Freezing Orders.

Mareva orders are court-directed measures designed to prevent respondents from using their assets in a way that would undermine legal proceedings. They are typically granted ex parte (without the attendance of the party that orders are being sought against).

These orders can restrict the disposal or relocation of assets both domestically and internationally, the aim being to preserve the respondent’s assets so that any judgment can be effectively enforced.

Anton Piller Orders – Search Orders.

Anton Piller orders are a type of highly intrusive injunction used in civil cases to prevent defendants from destroying or concealing evidence that may be crucial to the plaintiff’s case. They allow the applicant’s representatives to enter the defendant’s premises and search for and seize specified materials.

As they involve coercive state intervention, courts will only grant Anton Piller orders under strict conditions, for instance, when there is clear evidence of potential wrongdoing and a real risk of evidence destruction. The applicant may only seize materials specified in the order and any party failing to adhere to the terms risks being held in contempt of court, which can lead to significant penalties.

Requirements and Considerations for Granting Injunctions

While some forms of injunction are preventative and temporary, others are more intrusive or permanent and thus are granted only under strict conditions.

For an application for injunctive relief, the courts will need to consider:

Balance of Convenience

The court compares the potential hardship to both parties if the injunction is granted or withheld. The aim is to avoid unfair prejudice: if the balance of convenience tips in the plaintiff’s favour (i.e. greater harm would befall the plaintiff without an injunction than the defendant with one), an injunction is more likely. Conversely, if the defendant would be unduly burdened, the court may decline relief or impose conditions.

Undertaking as to Damages

Standard practice requires the plaintiff to give a formal undertaking to compensate the defendant for losses if the injunction proves unwarranted later. This ensures the defendant is not left uncompensated if the court eventually determines the injunction should not have been granted.

Serious Question to be Tried

The applicant must show there is a prima facie case or serious issue to be resolved at trial. The claim should be neither frivolous nor vexatious. In other words, the plaintiff must demonstrate that its legal right is arguable and warrants the court’s intervention.

Inadequacy of Damages

It must appear that damages alone would be an inadequate remedy for the harm suffered. Courts ask whether any injury (e.g. loss of reputation, confidential information or unique performance of a contract) cannot be easily quantified in money. If ordinary damages would fully compensate the plaintiff, an injunction will usually be refused.

Other notable considerations/defences against injunctions include:

Clean Hands Doctrine

In equity, a party seeking an injunction must itself have acted fairly and without improper conduct related to the matter. The maxim “he who seeks equity must do equity” means that if the applicant has engaged in illegal or unconscionable behaviour concerning the dispute, the court may refuse injunctive relief.

Urgency and Prompt Action

Courts expect applicants to act promptly. Undue delay in seeking an injunction may lead to its refusal (on grounds of laches). Conversely, urgent or even ex parte injunctions may be available if immediate action is needed to avert imminent harm, but even then, the plaintiff must show it acted without delay once aware of the threat.

Attempts to Rectify

The court may consider whether the plaintiff took reasonable steps to mitigate the harm or resolve the issue without litigation (for example, by notifying the defendant or seeking to negotiate). A plaintiff who ignored an obvious remedy or made no effort to stop the harm may find the court less sympathetic to its injunction request.

Futility

The courts are generally reluctant to grant an injunction if doing so would be futile, that is, the injunction would not achieve its intended purpose because the defendant could circumvent it without committing any wrongful act.

This principle rests on the idea that a remedy which is merely symbolic or easily rendered moot serves no useful purpose and should therefore not be granted.

Continuing Curial Supervision

Injunctions are rarely granted where the defendant’s obligation involved performance of an ongoing and complex nature, requiring judicial supervision in the form of direction or intervention. This principle reflects the judicial preference for clear, enforceable orders that do not require prolonged judicial involvement. Injunctions are more likely to be granted when the order can be precisely defined, and compliance can be objectively assessed without ongoing oversight.

How Injunctions Can Prevent Harm

Injunctions can serve to protect your business from irreparable harm through the means of:

Preserving the Status Quo

An injunction can be utilised to halt the current situation so that no further harmful action takes place. For example, it can prevent a competitor or ex-employee from misusing proprietary information, trade secrets or commercial data. By halting wrongful conduct immediately, the business can avoid escalation of losses until the dispute is finally resolved.

Protecting Intellectual Property

Injunctive relief is often sought in intellectual property disputes. If another party infringes on your trademarks, patents, copyrights or trade secrets, an injunction can quickly prevent the unauthorised use or reproduction. This helps safeguard brand value and prevents the irreparable loss of goodwill that can occur if infringing products or materials flood the market.

Enforcing Contractual Obligations

In cases where a party threatens to breach a contract in a way that monetary damages can’t rectify, such as delivering unique goods or services, injunctions can compel compliance with the contract terms.

Key Takeaways

Injunctions are a powerful form of equitable relief, capable of preventing harm, preserving rights, and ensuring justice in circumstances where monetary damages are insufficient.

Whether restraining harmful conduct, compelling specific actions, or safeguarding critical evidence or assets, injunctions play a vital role in civil proceedings.

However, it is important to recognise that injunctive relief is inherently discretionary. Even if all the legal requirements are technically satisfied, the court retains the authority to refuse an injunction based on broader considerations of justice, practicality, and fairness.

As such, success in obtaining an injunction depends not only on meeting formal criteria but also on persuading the court that the relief is appropriate and necessary in all the circumstances.

How Rose Litigation Lawyers can help

At Rose Litigation Lawyers, our Queensland-based team specialises in commercial litigation including seeking injunctive relief. We understand that time is often of the essence: if an opponent’s conduct could inflict irreparable harm on your business, swift action is critical. Our lawyers have extensive experience advising clients on preserving their rights, from urgent interlocutory injunctions to final judgments. We will provide a clear, pragmatic assessment of your position, help you gather the necessary evidence, and prepare any court documents or affidavits needed to seek injunctive relief.

If you are concerned that your opponent’s conduct will cause irreparable damage to your business whether financially or reputationally, we can provide you with commercially sound advice tailored to your situation and assist you in reaching your desired outcome.

[1] Civil Proceedings Act 2011 (Qld) s (9)

The content of this publication is intended to provide a summary and commentary only. It is not intended to be comprehensive nor does it constitute legal advice, and has been prepared based on applicable legislation and case authority at the date of publication. You should seek legal advice on specific circumstances before taking any action.