AUSTRALIA Law and Practice Contributed by: Amanda Banton, Elliott Smith, Melissa Morgan and Paul Smith, Banton Group
6. Injunctive Relief 6.1 Circumstances of Injunctive Relief There is various injunctive relief available depending on the circumstances. Permanent Injunction A permanent injunction is a lasting resolution of the parties’ rights and remains in effect indefi- nitely, unless limited by the terms of the order or dissolved by a subsequent court order. A court will grant a permanent injunction only after mak- ing a final determination at trial. The applicant must prove the elements of the cause of action and the likelihood of ongoing or repeated harm. Interlocutory Injunction An interlocutory injunction usually sought at the outset of proceedings to preserve the position until the parties’ rights are determined at trial. It typically governs a person’s conduct until the trial or a further court order. Interim Injunction An interim injunction is applicable to conduct until a specific date or the return date of an appli- cation for an interlocutory injunction. The order typically lasts for several days and is issued in urgent situations when the court determines that the applicant would experience irreparable harm without the injunction. The application for this order is made without notifying the affected person. The applicant must provide all relevant information and certain undertakings to the court. Other injunctions There are also injunctions that seek to preserve property and documents relevant to the dispute. A freezing injunction prevents a person from dis- sipating their assets until the trial of a proceed- ing. A search order requires a person to allow
the applicant to search for, copy and collect for safekeeping specific documents. The applicant must demonstrate that there is a real possibility that the defendant may destroy such material. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Urgent injunctions can be quickly obtained if requirements are met, especially for ex parte applications. Urgency should be highlighted to the judge. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Ex parte injunctive relief is available in urgent situations. Applicants must disclose all material facts, including potential respondent evidence. Material non-disclosure can result in the injunc- tion being set aside. 6.4 Liability for Damages for the Applicant Applicants must undertake to compensate for any losses caused by interlocutory injunctions. This applies to ex parte injunctions, covering only damages from the injunction proceedings. 6.5 Respondent’s Worldwide Assets and Injunctive Relief Freezing orders can preserve Australian assets for foreign proceedings under the Foreign Judg- ments Act 1991. Applicants must meet Supreme Court Rules requirements. 6.6 Third Parties and Injunctive Relief Injunctions can bind third parties, who must comply or risk contempt of court. Courts distin- guish between innocent third parties and those collaborating with respondents.
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