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 applicant must satisfy the following on the balance of probabilities[2]:
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).
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 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).
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.
[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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