The terms ‘Interim Injunction’ and ‘Interlocutory Injunction’ are often used interchangeably, however there is an important distinction. An Interlocutory Injunction is obtained prior to, and remains in force until, trial. An Interim Injunction on the other hand is obtained ex parte for a very short amount of time until each party can attend court for the application of an Interlocutory Injunction.
An Interlocutory Injunction is an equitable remedy which aims to preserve the status quo by preventing one party from committing, repeating or continuing a wrongful act prior to trial. They are often used to ensure that money remains in a bank account, prevent assets from being sold or to restrain the other party from continuing to do something, for example, contacting your clients or employees. They are effectively a smaller action within a larger claim which gives rise to a temporary remedy which may become permanent if the applicant is successful in the larger claim.
Interlocutory Injunctions are generally sought where there is a risk that a party to a dispute will do something which will cause irreparable damage. The purpose of Interlocutory Injunctions is to protect an applicant from damage which he or she could not be adequately compensated for if the defendant were to continue the action. Their purpose is to preserve identifiable legal or equitable rights which may be enforced if the applicant is successful in a final judgement.
An Interim Injunction is obtained ex parte and is only granted where it is not possible or not appropriate to give the other party proper notice. They are governed by the same considerations as Interlocutory Injunctions and for this reason are often referred to interchangeably. They act as an interim measure to maintain the status quo until an application can be properly made for an Interlocutory Injunction.
In Australia an Interim or Interlocutory Injunction is an equitable remedy, which means they are within the inherent power of all courts vested with equitable jurisdiction. In all states in Australia this power has now also been enshrined in statute. In Queensland the Civil Proceedings Act 2011 and the Uniform Civil Procedure Rules 1999 each include provisions which provide for these.
The test to determine when the court will grant an Interim or Interlocutory Injunction encompasses two essential elements, which include the courts satisfaction that:
The first element involves an analysis of the likelihood of the applicant’s case being successful however does not involve or result in a prediction of the outcome of the subsequent case.
The courts have identified a number of further considerations when granting Interlocutory Injunctions. These involve a consideration of:
Additionally, it will be highly favourable to the applicant to provide an undertaking as to damages and generally this is required as part of any order a court will make. While this is not a requirement of an application for an Interim or Interlocutory Injunction, it is generally noted that it is a highly persuasive factor in the court’s discretion. The undertaking is to be given to the court and must be for an amount sufficient to compensate the respondent for any losses stemming from the imposition of the injunction, should it ultimately be determined the injunction was wrongly granted.
A party who breaches an Interim Injunction may be held to be in contempt of court, which may result in imprisonment or fines. Due to the severity of this, it is crucial all procedural aspects of obtaining an Interim Injunction are adhered to strictly.
Due to the onerous nature of Interlocutory Injunctions and the serious consequences of their breach, an applicant is generally required to give notice to the other side in order to ensure a fair trial. However, in certain situations the court is able to grant an Interim Injunction without notice to the other party (or an ‘ex parte Interim Injunction’). Orders of this nature will generally be granted only for a few days or until the parties are able to attend a hearing and present their arguments for and against the award of an Interlocutory Injunction, which will remain in place, absent any appeals, until the trial.
In exercising their discretion to grant an ex parte Interim Injunction, the courts will generally place a high level of reliance on the urgency of the matter in their consideration, thus it is crucial that the applicant presents a clear argument in relation to this. Additionally, a plaintiff applying for an ex parte Interim Injunction is under a continuing onus to make full and fair disclosure of all material facts known to them. This requirement has been emphasised by the courts and if it is not adhered to with the requisite level of care the Interim Injunction may be discharged. Further, on occasion an undertaking as to damages has been considered an appropriate measure in applications for ex parte Interim Injunctions.
An order for an Interlocutory or Interim Injunction can be appealed following the ordinary appellate rules, however as it is a matter of practice and procedure courts must particular caution in respect of reviewing the decision of the original judge. Thus, a party is able to appeal the making of an Interlocutory Injunction only where it can be shown the judge at first instance has erred in law or has exceeded his or her discretion which has resulted in a substantial injustice. This may be done by parties to the action, or affected third parties who seek leave from the court. Alternatively, an Interlocutory Injunction may be avoided if the party against whom it is sought provides the court with an undertaking to restrain from the action.
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Aitken Whyte Lawyers Brisbane
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Brisbane QLD 4000
