Injunctions – Order 38

Question 1

What types of injunctions exist?

Answer 1

Mandatory injunction * Order that a party DO a particular thing

Prohibitory injunction * Order that party STOP doing a particular thing

Interlocutory injunction
* Preserves things in status quo until further order. Does not finally determine the rights of the parties.
* Is an application to a court to make an order before the court makes a final order in the proceeding.

Interim injunction
. Granted for a short time to a fixed date pending the hearing of both sides, no more usually than a day or two after the date of the order.

Question 2

What are the requirements for an interlocutory injection?

Answer 2

• Three requirements as per ABC v O’Neill
  1. There is a serious question to be tried or at least a prima facie case;
  2. If the injunction is not granted the applicant will suffer irreparable injury for which damages would be no remedy; and
  3. The balance of convenience favours the granting of the injunction.

Question 3

What can happen in urgent interim injunction applications?

Answer 3

• In an urgent case, an interlocutory injunction can be obtained without notice to the defendant – interim injunction.

Question 4

when can an injunction be made?

Answer 4

• Court can grant an injunction at any time of a proceeding, or, in certain circumstances of urgent cases (r4.08) before the commencement of a proceeding. – r38.01

Question 5

Security for costs for injuctions

Answer 5

• If injunction granted prior to trial, the court may make it a condition that the application give security for costs and expenses of any person who might be affected by the injunction at the first instance or at the final hearing of the matter. R38.03

Question 6

What is the test for granting injuctions?

Answer 6

• The jurisdiction to grant injunctions is discretionary and wide – may be exercised ‘if it is just and convenient to do so.’

Question 7

Is court likely to grant injunctions?

Answer 7

in an interlocutory application, court is likely to grant a prohibitory injunction as opposed to a mandatory injuction.

Question 8

What is the process for interim interlocutory injuctions?

Answer 8

• In an urgent case (generally like freezing order) the applicant will often initially apply to the Court ex parte by way of an interim application. This may take place before any proceeding has issued (r4.08).
• If an interim injunction or freezing order is granted, the further hearing of the application will be adjourned for a week or so to enable proceeding to be filed and respondent will then be served with originating process etc.
• At the interlocutory hearing, where parties are present, Court will adjudicate upon whether or not interlocutory injunction should be granted, and if so upon what terms and conditions.
• On ex parte – applicant has special duty of full and fair disclosure of all material facts.

Question 9

How is an app for an interim interlocutory injunction made?

Answer 9

• Made by notice on summons in Form 46A (r46.04). which must be filed and served on those entitled to notice of the application (r46.05).
• If the respondent fails to appear, the application can proceed and be heard unopposed on proof of service of the respondent (r46.07)

Question 10

When is an ex parte application for an injunction appropriate?

Answer 10

• Where the delay caused by notifying the defendant may cause the plaintiff irreparable damage; and/or
• Where secrecy is essential.