AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
A party that is granted immunity will be protected from proceedings commenced by the ACCC (or CDPP), but is not protected from third-party claims. 9.2 Contribution The CCA and Federal Court Act do not contain a legal basis/procedure for claiming contributions from third parties. Instead, in some cases, a party will seek to join another party to litigation where a question arises concerning their role or culpability and which then facilitates an order directly against that party. Any person, including the ACCC, may apply to the court for injunctive relief. The court may grant an inter - im or interlocutory injunction pending determination of an application for a final injunction “where in the opinion of the Court it is desirable to do so” (Sec - tion 80 (2), CCA). That is, an interlocutory injunction is only available where the party is seeking a permanent injunction as part of any remedies at trial. There are both interim and interlocutory injunctions. An interim injunction is a very short-term measure aimed at protecting the status quo, usually until a hearing can be arranged. These can often be obtained without notice (known as an ex parte injunction). This is typically done in situations where notifying the other party would undermine the purpose of the injunction (eg, where it aims to prevent the destruction of assets) or where further damage would result from a delay in making the application with notice. The applicant has an ongoing duty of full and frank disclosure. 10. Other Remedies 10.1 Injunctions The Court grants an interlocutory injunction as an order that typically remains in place until the final hear - ing. Broadly, two issues need to be considered by the Court in considering whether to grant an interlocutory injunction: • whether the applicant can satisfy the court that it has a prima facie case; and • whether the “balance of convenience” favours the grant of an interim injunction.
With respect to the first issue, it is necessary for the applicant to show a sufficient likelihood of success (in relation to the primary action) to warrant preserv - ing the status quo until the final hearing, but does not have to show a “high degree of assurance”. The strength of the probability required depends, in part, on the consequences likely to follow. As to the second issue, the balance of convenience looks at what the inconvenience or harm to the appli - cant would be if the injunction were refused versus the inconvenience or harm to the respondent if the injunc - tion were granted. Only if the balance lies in favour of the applicant would an injunction be granted. Relevant considerations include whether the applicant would suffer irreparable harm if the injunction was not granted, whether the respondent would be prejudiced by the injunction in some way (eg, unable to oper - ate business), whether the injunction would change or rightly maintain the status quo, whether damages would be a sufficient remedy for the applicant after the final hearing and whether the respondent would be able to pay such damages. If the adverse effect of the injunction on the respondent can be measured financially, then the court will be more likely to grant the injunction. The balance of convenience is considered in the context of the strength of the prima facie case. The stronger the prima facie case, the less the balance has to weigh in favour of the applicant. Where the applicant is the ACCC, the court is also required to consider the harm to the public interest, market actors and consumers flowing from the poten - tially detrimental effects on competition if the injunc - tion is not granted. Where the applicant is a private party, the court will typically require an undertaking as to damages to be given to protect the respondent if an injunction turns out to have been wrongly granted. If such an under - taking cannot be given, the application will likely be refused. The requirement for an undertaking as to damages does not apply where the applicant is the ACCC (s 80
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