Vikram Misra, Barrister at Clarence Chambers, continues his series into practice and procedure. In this article, he provides guidance to navigate interlocutory injunctions, with a focus on the test, procedure, evidence, and more. Follow the series here.
Introduction
Interlocutory injunctions are often sought on short notice. As such, it is important that instructing solicitors have a general understanding of the legal principles and procedure involved in moving the court for such relief.
The Supreme Court has jurisdiction to grant interlocutory injunctions due to its general equitable jurisdiction, inherent power to grant injunctive relief and also under s 66 of the Supreme Court Act 1970 (NSW). See also r 25.2 of the UCPR.
Whilst this article is confined to practice in the Supreme Court, note that the District Court has power conferred on it by statute to grant injunctions in limited circumstances: see District Court Act 1973 (NSW), sections 140 and 46.[1]
This article will provide an instructing solicitor with:
- the test and legal framework/procedure that is required to be satisfied for an interlocutory injunction;
- what to include in a brief to counsel;
- what evidence is required and from whom;
- the issue of costs relating to an application for an interlocutory injunction; and
- variation of interlocutory orders.
The Test
The applicant must satisfy the following on the balance of probabilities[2]:
- Is there a serious question to be tried on the applicant’s claim for relief?
- Has the applicant shown that it is likely to suffer injury for which damages is not an adequate remedy (irreparable harm)?
- Does the balance of convenience favour the granting of the injunction (including impact on third parties[3])?
Procedure
Initiating process
Usually because of urgency, interlocutory injunctions are commenced by way of Summons setting out the interim and final relief sought. If the matter is required to proceed by way of Statement of Claim due to r 6.3 of the UCPR, such an order can be sought after the hearing of the interlocutory injunction.
If time permits, a Statement of Claim pleading the full case (final relief) and a Notice of Motion (returnable instanter) seeking the interlocutory relief will also suffice. Having a Statement of Claim pleading out the causes of action fully is one way to show that your client has a prima facie case.
Should the application be made ex parte?
An ex parte application is heard in absence of the respondent. It is only applicable when the purpose of the injunction would be defeated if orders for short service are made and the defendant is brought back in a few days to be heard (Re Elm [2006] NSWSC 1137, i.e. freezing orders/search orders (see UCPR Part 25 Division 2 and 3, see also Practice Note SC Gen 13 and 14).
The duty of disclosure is higher on an ex parte application than on a standard application for an interlocutory injunction, i.e. the applicant must disclose all facts and circumstances (for and against the client) that are known to the applicant. Non-disclosure of such facts may be a ground for dissolving the injunction and allowing the respondent to call on the undertaking as to damages. For an example of the consequences of failing to make full and fair disclosure, see: Orpen v Tarantello [2009] VSC 143, where a failure to make full and fair disclosure of material facts on an ex parte application resulted in an award of costs against legal practitioners (on a party/party basis here, but note the possibility to seek an order on an indemnity basis).
Is an application for short service required?
If the date for hearing the interlocutory injunction falls outside the minimum period required between service of the originating process (summons – 5 days, r 6.15 UCPR) or notice of motion (3 days, r 18.4 UCPR) and the return date, then an application for short service will need to be made. This is made before the Duty Judge in the Equity Division of the Supreme Court. If required, orders can be made for service by way of email in the first instance, with formal service following (see r 10.17 UCPR).
Documents to be included in brief to counsel
- Short minutes of order;
- Summons or Statement of Claim with Notice of Motion;
- Supporting affidavit(s) addressing the test above.
Evidence
Evidence can be given by an instructing solicitor – see s 75 of the Evidence Act 1995 (NSW) which provides an exception to the hearsay rule: “in an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source”. This is useful if there is not enough time to obtain an affidavit directly from the client.
Costs
Costs for interlocutory matters are not made until the end of the matter, unless the court orders otherwise, see: s 98 of the Civil Procedure Act 2005 (NSW).
Variation
The interim relief can be varied or discharged if it can be demonstrated that new facts have come into existence which render the enforcement of the interlocutory regime unjust. A court must remain in control of its interlocutory orders, see: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 178.
Key takeaways and tips for an instructing solicitor
- Before considering an injunction, speak to the other side about seeking relevant undertakings – this avoids the need for the client to give the undertaking as to damages on an application for an interlocutory injunction.
- Consider whether an injunction is required or would expedition suffice?
- Utilise the exception to the hearsay rule where time is an issue.
- Contact the Duty Judge’s associate to let the court know that an urgent application will be made (i.e. ex parte application or an application for short service).
- Always have instructions to give the usual undertaking as to damages obtained from the client (r 25.9 UCPR). This must be explained to the client. Preferably written confirmation of the explanation ought be sought from the client. Damages are damages flowing directly from the injunction and which could have been foreseen when the injunction was granted: see European Bank Limited and Robb Evans of Robb Evans & Associates (2010) 240 CLR 432, 439.
- Attend with counsel on an ex parte application or an application for short service as an instructing solicitor must attend the registry to file documents. Counsel cannot attend to filing documents in the registry.
- Where the application is made out of hours, see Practice Note SC Eq 8 – ring the out of hours number.
- Don’t forget service and evidence proving service.
[1] For jurisdiction of the Federal Court, see Federal Court of Australia Act 1976 (Cth) s 19, 20, 22 and 23.
[2] ABC v O’Neil (2006) 227 CLR 57, 68; Castlemaine Tooheys Ltd v South Australia (1986) CLR 148.
[3] Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238.
Vikram Misra was admitted as a solicitor in 2012 and called to the NSW Bar in 2015. He maintains a broad commercial practice and is regularly briefed in matters relating to taxation law, property law, construction law and equity. Vikram has completed a Graduate Diploma in Taxation Law at the University of Sydney in 2015 and a Master of Laws majoring in construction law and contract law at the University of Melbourne in 2016. You may connect with Vikram via email counsel@vikrammisra.com or LinkedIn 
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