What is this document?
An injunction is a court order requiring the party to whom it is addressed either to do something or, more commonly, to refrain from doing something.
There are two types of injunctions:
- The most common type of injunction order prevents a person from doing something, such as selling land, breaching a contract, or disclosing confidential information;
- The less common type of injunction order, known as a mandatory injunction, compels a person to do something, like demolishing a building, giving business consent, publishing a correction, or making a payment.
Anyone wanting the benefit of an injunction must prepare an affidavit detailing evidence supporting their claim. It must attach all relevant documents, and outline the facts and circumstances leading up to the application for injunction. A court will not grant an injunction without a thorough affidavit.
Injunctions will either be granted on an interlocutory or final basis by a court.
Interlocutory means provisional or interim. Interlocutory injunctions are issued to maintain the status quo while proceedings are in progress until a matter can be properly decided.
Final injunctions are granted after the final hearing of a case and are only made after a contested hearing. They seek to remedy a civil wrong and form part of a final legal judgment.
Even if an interlocutory injunction has been granted during proceedings, a final injunction always needs to be issued to finalise the matter. The Court will require both parties to attend court at a later date to present their arguments in relation to the plaintiff’s claim. The Court will then determine whether to enforce the rights claimed by the plaintiff and grant a final injunction, or make some alternative order.
If the plaintiff loses, the defendant will have the opportunity to claim damages for losses suffered as a result of the enforcement of the injunction.
What are the options for a response?
If you do not want to oppose the injunction order, you can:
- Consent to the order without admission, in the case that the injunction does not significantly disrupt you or your business and the order does not have the effect of finalising the proceedings. Consenting with the orders will save you costs and, if you are successful in the case, you could be entitled to costs incurred by complying with the interlocutory injunction.
- Propose an alternative set of orders to the court rather than the applicant’s set.
If you want to have the injunction removed, you must address each factor below:
- Strength of the plaintiff’s case: demonstrate that the plaintiff’s allegations and evidence are weak and that there is not a reasonable prospect of success to justify an injunctive relief;
- Balance of inconvenience: demonstrate that the detriment that the defendant is likely to suffer with the injunction granted outweighs the right to justice for the plaintiff;
- Inadequacy of damages: demonstrate that monetary damages are adequate to solve the issue and therefore it is a sufficient alternative remedy to the injunction; or
- Effect of delay: demonstrate that there was an unjustifiable delay in commencing the application for injunction, which resulted in prejudice to the defendant.
What is the legal effect of ignoring it?
Breaching an injunction order is considered a contempt of court. Contempt of court is an act of disobedience that opposes or defies the authority, justice, and dignity of the court. This may lead to strict penalties, including charges, seizure of assets and/or a warrant for your arrest.
What documents and information do you need to give your lawyer?
If you have been served with an injunction order, you should seek legal advice as soon as possible and provide your lawyer with:
- the injunction order;
- copy of other documents in the proceeding;
- information regarding facts and circumstances of the dispute;
- information regarding whether you can consent with the order;
- any other information requested by your lawyer.