INJUNCTIONS
General Principles
1.
(a)
(b)
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Definition and When is it granted?
WHAT: Ct order to restrain infringement of rights, in any field of law;
WHEN: granted - always a matter of the court's discretion, but typically must be "just and
convenient"
Classification of injunctions
Perpetual: given at Ct final hearing’s order
Interlocutory: given during Ct hearing to hold the status quo pending final trial
Prohibitory: prohibits D from certain acts (which would breach P’s rights).
Mandatory: orders D to perform certain acts
Types of Injunctions
(c)
Interlocutory
WHAT: order to maintain status quo pending final hearing.
o Sub-type: “interim” – operate for specified period or on urgent basis, before hearing for
interlock inj takes place.
(d)
Mareva Orders (aka Mareva injunctions and asset preservation orders)
 WHAT: interlock order to freeze D’s ability to deal with their assets (not removed from juris or
disposed of before hearing).
 WHEN: P prove serious danger that assets might be removed/dissipated/disposed: Cardile v LED
Builders
 Eg. Siskina v Distos Compania Naviera SA [1979] AC 210: look below.
 FACT: Ship owner (Greek) and cargo owner (Italian) – bills of lading gov by Italian law with excl
Italian juris. Ship sank. Insurance payable in London.
 PROCEEDINGS: Cargo owner get Mareva inj. Ship owners got it discharged. COA: restored
injunction. HOL: discharged.
(e)
Anton Pillar orders
 WHAT: order to let P enter D’s prem and materials, and sometimes take possession (prevent D
from destroying evidence pre-trial)
 WHEN: Anton Piller KG v Manufacturing Processes Ltd (1976)
 P has very strong prima facie case
 Real danger that P suffer serious damage
 Clear evidence that D possesses incriminating evidence
 Genuine possibility that D might destroy evidence pre-trial
Long v Specifier Publications Pty Ltd (1998)
 FACT: copyright re pirate copies of CDs/DVDs.
 ORDER: AP – sol to keep custody of material BUT gave to client  fine.
(f)
Anti-suit injunctions to restrain the pursuit of proceedings in an overseas court
 WHAT: order to stop litigant (in Aus) from suing re same/related matter in overseas jurisdiction,
simultaneously or at all.
 WHY:
o Came from “common injunctions” in Ct of Chancery (prevented suing in CL Ct)
o Became unnec after CL/E Ct fusion, but still stopped:
 State Ct proceedings by Ct with fed juris
 Crim proceedings - bcos of insurmountable unfairness
 Overseas proceedings – bcos of harassment and inconsistency of Ct orders
 SCOPE:
CSR & CSR America Inc v Cigna Insurance Australia & ors (1996-7) 189 CLR 345
o FACT: Cigna insurance for CSR. Both incorp in Aus. Asbestos claim by CSR ex/employee in US.
Cigna refuse to insure unless CSR withdraw claims (in letter). CSR withdraw (respond in letter).
Cigna argue letter proof that CSR’s claims dropped.
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o ISSUE: Cigna want anti-suit inj to stop CSR’s claims in US (in NSW Ct).
o HELD: anti suit inj dismissed.
o LAW: anti suit inj given on 2 grounds:
o 1st: Restrain D from foreign proceedings if they interfere with pending proceedings in local
Ct.
 NSW appropriate forum? No – can’t decide liability re US stat.
 NSW proceedings vexatious/oppressive? Yes – just to stop CSR’s claims in US.
o 2nd: Restrain unconscionable conduct
 P (CSR) commence proceedings both overseas/Aus? Yes – but they were diff
issues.
 Breach obligation not to sue? No – CSR’s letter not promise not to sue.
Other
(g)
Non-compliance
Breach of inj  contempt of court: Witham v Holloway
o If breach wilfully disobedient  criminal
o If serious  can be punished with imprisonment
o Even if within technical classification of “civil contempt”
o If less serious: fines: Long v Specifie Publications: sol to keep evidence obtained by AP
order, but instead gave to client  fine!
 Lawyers/3rd parties implicated in breach  may ALSO be punishable
o May be subject to professional sanctions
(h)
Clear/precise framing of injunctions
 Ct must take care that any injunction is framed with precision
o What is prohibited or obliged to do  clear in practice.
o If P cannot give def/practical/short statement of terms of order  application fail
Redlands Brick v Morris [1969]
 FACT: M strawberry farmer next door to clay mine (RB). Inj t stop digging – causing landslips.
 PROCEEDINGS: Mand inj (to make RB “take all necessary steps to restore the support).
 HELD: denied – didn’t indicate HOW Mand Inj was to be achieved (order too vague!!)
(i)
Standing
 OLD: only P with a proprietary interest: Cowell v Rosehill Racecourse (1937) 56 CLR 605 (HL
39.21C)
 NOW: any legal or equitable interest BUT nature/extent of interest affect Ct’s discretion to
grant/not
 NOTE: additional standing in s80 TPA and s1324 and 1323 Corp Act below.
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, (TNK para 10.30)
 Gaudron, McHugh, Gummow and Callinan JJ (re s66 SCA, s23 FCA) – Ct may grant injunctions
ONLY with reference to
LAW: "some legal or equitable right which the injunction protects against invasion or threatened
invasion, or other unconscientious conduct or exercise of legal or equitable rights".
 PREV req prop right:
" whilst once there may have been an absolute requirement that, negative covenants aside, before
an injunction might be granted in aid of a legal or statutory right, the right must be proprietary in
nature, in MODERN cases….there has been NO advertence to such a requirement..
Again, in this Court, the view once taken that an injunction should issue to restrain breach of a
negative stipulation, without weighing the usual discretionary considerations has been discounted
as an overstatement….The use of the anti-suit injunction, at least if granted in aid of contractual
rights and obligations, is another example of development of traditional doctrine."
 DISCRETIONARY JURIS:
Juris should be exercised: "according to the exigencies of the case and, the schemes which a
debtor may devise for divesting himself of assets being legion, novelty of form is no objection to
the validity of the order " (citing Jackson v Sterling Industries (1987) 162 CLR 612 at 621).
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Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Limited
(TNK p 748)
 FACT: 2 funeral funds. Inj against BB from going into funeral funds business.
 HELD: inj granted – ACB have standing, as would suffer harm if BB continue.
 ISSUE: Gaudron, Gummow and Kirby JJ:
“it may well be appropriate to dispose of any question of standing to seek injunctive or other relief
by asking whether the proceedings should be dismissed because the right or interest of the plaintiff
was insufficient to support a justiciable controversy, or should be stayed as otherwise oppressive,
vexatious or an abuse of process”
2.
Sources of power to grant injunctions
s 66 of the Supreme Court Act 1970:
66 Injunction
(1) The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any
threatened or apprehended breach of contract or other injury.
(2) Subsection (1) applies as well in a case where an injury is not actionable unless it causes
damage as in other cases.
(3) The Court may restrain any threatened or apprehended waste or trespass pursuant to this
section:
(a) whether the person against whom the injunction is sought is or is not in possession
under any claim of title or otherwise, or (if out of possession) does or does not claim a
right to do the act sought to be restrained under any colour of title, and
(b) whether the estate claimed by any party is legal or equitable.
(4) The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any
case in which it appears to the Court to be just or convenient so to do.
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3.
These are the traditional E injunctions (made under s66).
There are ALSO other important specific statutory injunction aka ( injunction-type powers)
o Eg. s80 TPA and s1324 of the Corporations Act
Judicature Act-based provisions relevant to
injunctions, and issues as to choice of court between
State and Federal Superior Courts
(a)
Federal Court and High Court
 FC and HC have powers in fed juris: matter arises under Fed law, re external relations, is against
Cth/officers/emanations
 Must be a: “properly constituted matter with real issues and general affected litigants before it”: (per
Callinan J in Woods v Multi-sport Holdings (2002) 208 CLR 460, and not, for instance, if it is in the
nature of a request for an advisory opinion, even from a regulator or the Government: In re Judiciary
and Navigation Acts (1921) 29 CLR 257).
HC: section 75 of the Constitution
Original jurisdiction of the High Court
75.
In all matters:
(i)
arising under any treaty;
(ii)
affecting consuls or other representatives of other countries;
(iii)
in which the Commonwealth, or a person suing or being sued on behalf of the
Commonwealth, is a party;
(iv)
between States, or between residents of different States, or between a State and a
resident of another State;
(v)
in which a writ of Mandamus or prohibition or an injunction is sought against an
officer of the Commonwealth.
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FC: Section 23 of the Federal Court Act (FC version of s66 SCA)
Making of orders and issue of writs
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such
kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the
Court thinks appropriate
(b)
Juris limits on the availability of injunctions
 ISSUE:
o Broad view: inj wherever Ct thinks “just and convenient”
o Highly criticized
o But persists - discretionary nature of inj, vague considerations of “balance of convenience”
(i) Siskina (Ship Owners) v Distos Compania Naviera SA (Cargo Owners) [1979] AC 210
 FACT: Ship owner (Greek) and cargo owner (Italian) – bills of lading gov by Italian law with excl
Italian juris. Ship sank. Insurance payable in London.
 PROCEEDINGS: Cargo owner get Mareva inj. Ship owners got it discharged. COA: restored
injunction. HOL: discharged.
 ISSUE: can injunction be the ONLY relief sought (not part of other proceedings?)
“whether the equivalent of section 66(4) of the Supreme Court Act…requires that the injunction
be in support of another legal or equitable right.”
 HELD: NO – does not allow inj out of juris, where only relief sought is injunction
 Lord Diplock (Lords Hailsham, Simon, Russell, Keith agree)
"That subsection, speaking as it does of interlocutory orders, presupposes the existence of an
action, actual or potential, claiming substantive relief which the High Court has jurisdiction to
grant and to which the interlocutory orders referred to are but ancillary. This factor has been
present in all previous cases in which Mareva injunctions have been granted."
o Mareva inj is INTERLOCUTORY (not final) and presupposes existing action.
"This pre-supposes the existence of a cause of action on which to found 'the action'. A right to
obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is
dependent upon there being a pre-existing cause of action against the defendant arising out of an
invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the
enforcement of which the defendant is amenable to the jurisdiction of the court. The right to
obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of
action.”
 ALSO: must be re L/E right, which it has juris with final judgment.
"the High Court has no power to grant an interlocutory injunction except in protection or assertion
of some legal or equitable right which it has jurisdiction to enforce by final judgment".
(ii)
Aus: also try to expand juris – through creating new E right (right to privacy)  fail
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
 FACT: Broke into possum abbatoir, ABC to broadcast. LG worried about business. Inj?
 SC: inj – got video by trespass, showing is unconscionable, defamation, breach of confidence.
 HC: no inj
o Gummow/Hayne: – what L/E right was LJ asserting as basis of inj?? None.
 No breach of confidence – abbatoir is open
 No copyright issue
 No right to privacy (only applies to individuals)
o Unconscionability is ITSELF not basis for relief (just factor) – cf, Kirby.
o Callinan (dissent): LG own abbatoir, person breach – should impose CT and account of profits
(fusion fallacy!)
4.
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Quia timet injunctions
WHAT: no wrongful conduct offered, but is THREATENED (anticipated wrong): (quia timet = because
they fear).
WHEN: used a lot in company law.
If re m/d conduct  refer to stat specific inj.
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(a)
Redland Bricks v Morris [1969] 2 All ER 576
 FACT: M strawberry farmer next door to clay mine (RB). Inj t stop digging – causing landslips.
 PROCEEDINGS: QT inj granted (to stop RB from taking away mine supports) AND Mand inj (to
make RB “take all necessary steps to restore the support).
 HELD: Lord Upjohn (other agreeing):
o P fully comp for prev slips.
o Inj against future slips  QT inj.
o BUT denied – didn’t indicate HOW Mand Inj was to be achieved (order too vague!!)
o RB did not behave “wantonly” and cost (of support) was disproportionate to potential damage
 Note: look at cost if Mand Inj, but not if Pro Inj or wanton
(b)
Southern Resources v Residues Treatment (1990) 3 ACSR 207,
 FACT: directors (breach of fid/stat duty) support trans for reverse takeover of SR.
 HELD: QT inj – against threatened trans (share allotments)
o STANDING: under s574 Companies Code (now s1324 Corp Act), E (breach of fid duty) and stat
duty of good faith (predecessor of s181 Corp Act).
 Note, now: shareholders have stat standing under s236, 237 Corp Act.
 This case held: if re improper share allotments  shareholder has standing: Residues
Treatment & Trading Co v Southern Resources (1988) 51 SASR 177; 14 ACLR 569
o INADEQUACY OF DAMAGE:
 P (rival takeover offeror): damages were blocking of its takeover offers and devalue of it’s
SR shares.
4.
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General principles for injunctions - the overriding
rules in injunction jurisdiction, equitable and statutory
Regard to PRINCIPLE
FLEXIBILITY for individual situation and practicality:
- Order must be workable/clear and join relevant parties to situation
- Exercise of Ct DISCRETION but must regard principle/practicality
(a)
Discretionary nature of juris
 Prev, rules rigid. NOW: applied with flexibility
 Minor factual distinctions  crucially change Ct’s approach
Warman v Dwyer (1994-5) 182 CLR 544,
 HC (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ):
“[i]t is necessary to keep steadily in mind the cardinal principle of equity that the remedy must be
fashioned to fit the nature of the case and the particular facts”
(b)
Appeals and precedents of inj
 APPEAL: Appellate Ct reluctant to interfere with Trial J’s decisions on discretionary matters: House
v R (1936) 55 CLR 499
o Decisions re interlock inj (not final)  discretion of Trial J. Appellate Ct rarely overrule:
Parry v Crooks (1981) 27 SASR 1; 6 Fam LR 824; TNK 9.
 PRECEDENT: interloc inj precedents are NOT strictly binding
o Usually done urgently – doesn’t have weight as full argument/evidence.
(c)
Need to demonstrate a threat
 All inj need element of THREAT: equity does not act with futility, and its remedies are discretionary.
(d)
Specific discretionary factors
(i)
Inadequacy of common law relief
o Inj – details, onerous, irrevocable interventions (may determine outcome of case)
o Thus, Ct must be sure of justification for intervening
Commonwealth v John Fairfax (1980) 147 CLR 39
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o FACT: publication of confidential article re East Timor. Interloc inj?
Inadequacy of monetary damages
o Prev: a “juris issue” that must be satisfied before looking at other factors (except inj re wholly
E rights).
o Now: just a discretionary factor AND q is now: “Is it just, in all the circumstances, that a
plaintiff should be confined to their remedy in damages ? “
CMG Equity Investments v ANZ Banking Group [2008] FCA 455, per Finkelstein J:
o FACT: interlock inj to stop ANZ from selling disputed shares – DENIED.
o REASON: market price of shares readily available – so P would not suffer irreparable
damages.
o Applied test: “P must show that he is sufficiently threatened with irreparable damage” if the
interlocutory relief is not granted: see:
Evans Marshall & Co v Bertola SA [1973] 1 WLR 349 at 379, cited T para 6025 p 285
o FACT: distributorship agt for sherry terminate? Inj to stop termination.
Inadequacy of non-monetary civil remedies
o CL civil remedies eg. restitution order (in action of detinue)
o Specific remedies
(ii) If essentially SP  factors re SP will also be relevant.
(iii) Need for continuing court supervision is excessive
(iv) Equitable defences  SP etc.
(v) Non-monetary CL or stat remedies
o Made so P has other remedies other than inj.
o Eg. detinue or restitution
(vi) Specific statutory injunction issues and their potential relevance to equitable injunctions
o If subject matter of leg has clear bearing on subject matter of inj application  need to
consider/utilize the specific stat inj powers bcos of E/stat OVERLAP
o Refer to Appendix 1: list of eg of stat inj powers
s80 of the TPA, and s 1323 and 1324 of the Corporations Act – Appendix 2
o Re: misleading/deceptive conduct of corp and officers. Relate to E dishonesty and fid duty of
corp to officers.
Other provisions
o If re financial markets, parallel provision: s12GD of the Australian Securities and Investments
Commission Act read with section 12DA
o If corporation is not involved: s42 and 65 of the Fair Trading Act.
s80 TPA
o Scope:
o Statement/conduct may be m/d by OMISSION – failure to disclose, inaccuracy
o Proposed conduct
o Extend to ppl who aid, abet, counsel, procure, attempt
o Any person has standing – no req of any form of interest (though still rel to Ct’s
discretion)
o Relevant to E injunctions:
o Restraint/limit on E juris can be overcome with stat inj powers: eg. E’s reluctance to
interfere with free speech (Bonnard v Perryman; Australian Broadcasting
Commission v O’Neill) DON’T apply to stat inj powers! Stat object to promote honest
conduct OVERRIDES E case law policy.
o s80 (4) and (5) affect relevance of discretionary factors for E inj application and make
them NON-conclusive (also in subsec 1324(6) and (7)) Corp Act).
o Negate E principle re element of threat (for final/interlock inj) and also in many areas
of QT inj
o Overcomes issues of E standing.
o Note: stat juris affected by E principles too (Ct’s overriding discretion): Trade Practices
Commission v ICI Australia
s1323 and 1324 of the Corporations Act
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o Modeled on s80 TPA, but does not completely abolish req of STANDING.
o STANDING:
o Broad test: “a person whose interests have been, are or would be affected by the [past,
continuing, or proposed] conduct”
o Relevant to E injunctions:
o Same as above.
o s1324 (6) and (7) affect relevance of discretionary factors for E inj application and
make them NON-conclusive
o Mareva/Anton Pillar orders:
o s1323 Corp Act: direct order to asset/evidence preservation (Mareva) OR appoint
receiver (Anton Pillar).
o Standing: regulators and any person who may be P, BUT only where there is already a
civil proceeding, prosecution, Aus Securities Commission Investigation
ICI Australia Operations v Trade Practices Commission (1992) 38 FCR 248;110 ALR 47
o FACT: ICI persuade most of its distributors of agri chem products in Vic to sell at standard
price. 2 refuse. ICI try to persuade them not to sell 2 specific products at less than ICI’s price
 breach of resale price maintenance prohibition (TPA Act). TPC sue.
o Olney J: penalties + inj (s80) against ICI doing it again
o Appeal against inj:
o ICI: penalty was enough
 E principle: inj won’t operate where damages/CL remedy adequate
 E principle: inj won’t operate where there is no practical point: E will not act
with futility
o FC: “may” in s80(1) - Ct need to be persuaded to exercise discretion to grant inj.
o s80 not limited to practical/utilitarian purposes of E inj.
o WAS persuaded in this case:
 ICI’s size/resources/standing in community
 Breaches weren’t isolated, inadvertent acts of employees but concerted conduct
by managerial persons
 High demand of products
 Prev, another comp in ICI group had also contravened this.
o Lockhart J noted at 110 ALR 55 to 57:
o s80: public interest provision and substantially departs from traditional basis of E injs.
o Can grant inj notwithstanding D “has not previously engaged in the prohibited conduct
or does not intend to engage in it again or to continue to engage in it or there is no
imminent danger of substantial damage”
 BUT doesn’t mean trad E doctrines irrelevant – must still “consider questions
of repetition of conduct or whether it has ever occurred before or whether
imminent substantial damage is likely" even though "the absence of any one or
more of these elements is not fatal” to granting inj.
o HELD: inj entirely appropriate – senior officers of ICI deliberately "engaged in a
coordinated scheme on a large scale" rather than "isolated acts out of the norm of the
trading activities" of ICI.
6.
Interloc inj, including interim inj and ex parte inj
(a)
AUS THRESHOLD TEST: P must show definite likelihood of final success at hearing.
Beecham Group v Bristol Laboratories (1968) 118 CLR 118
o FACT: interlock inj to stop D from infringing pharmaceutical patent.
o HC: To get interloc inj
o LAW: d to demonstrate some definite likelihood of success at the final hearing
o Old test “having a prima facie” case  no longer applies.
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 80 ALJR 1672; 229 ALR 457
o FACT: interloc inj to prevent defamation. O guilty of child murder. Doc allege O kill other children.
o HC: DENIED interloc inj
o LAW: P doesn’t have to show “more probable than not” that they win (50%).
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o JUST need to show sufficient likelihood of success (reasonable chance, serious question to be
tried)  this is the minimum.
o Not to determine if vexatious etc.
(b)
UK THRESHOLD TEST: Serious question to be tried
American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504
o LAW: “serious question to be tried” (or “a good arguable case”)
o Lord Diplock:
o Obj of interlock inj: protect P against injury that can’t be compensated by damages
o BUT need to weight against D’s injury from being unable to exercise his legal right, which
cannot be adequately compensated (from P’s undertaking).
(d)
Balance of convenience issue
o Effect of interloc inj – temporary, freezes status quo/trans/project
o Usually easy to prove that a “balance of convenience” favours the grant of interlock relief
o But MAY cause hardship in the end: turned out to be unnecessary at the end, or it was necessary but
not granted etc
(e)
Threat “test”  key element
CMG Equity Investments case:
o Finkelstein J test: “the plaintiff must show that he is sufficiently threatened with irreparable damage”
if the interloc inj not granted.
o Sometimes obvious – est without saying by either side (esp in time restraints)
(f)
Ex parte applications
o Because inj are INTERIM – Ct doesn’t get to hear BOTH sides of argument.
o THUS: advocate duty to give FULL/HONEST disclosure to Ct
(g)
Undertaking as to damages
o P must give undertaking as to damages to get interloc inj
o Except: if P is public body or Crown
o Set out: Regulation 25.8 Uniform Civil Procedure Rules 2005
7.
Inj for EXCLUSIVELY equitable rights -
o the exclusive, as distinct from the auxiliary, jurisdiction of equity
(a)
Significance of distinction between exclusive and auxiliary jurisdictions to grant injunctions
(b)
Injunctions to restrain breach of confidence
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
 FACT: JF publish confidential article re East Timor. Interloc inj?
 Mason:
o Breach of copyright (reports in ET): yes  inj
o Breach of confidence (E right): no (public anyway)
Commonwealth v Walsh (1980) 147 CLR 61:
 FACT: Gov secrets in docs in D’s book.
 HELD: no inj.
o Some docs already in foreign books, also 71 copies of bk already sold
o Usually get inj – but here, no inj against further publication.
(c)
Injunctions to restrain a breach of a trust over property
Opes Prime Stockbroking cases
CMG Equity Investments v ANZ Banking Group [2008] FCA 455
 FACT: CMG borrow money from O, return – give absolute share to O. CMG want to repay debt and
get shares back. But shares held by ANZ (part of arrangement held by O to lend monies to CMG).
ANZ wants to dispose of shares.
 ISSUE: interlock inj to stop disposal of shares pending trial.
 HELD: no inj
o Damages adequate, inconvenient.
o ANZ is analogous to Mgee exercising power of sale.
(d)
Breach of charitable trusts (religious controversies)
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 Controversial!!
Wylde v Attorney General (at the relation of Ashelford) (1948) 78 CLR 224
 FACT: Community church have holy communion in accord with Red Book. But services only accord
with Book of Common Prayer. Argue Bishop (W) breach Church of Eng Prop Trust.
 HELD: inj – breach of Trust.
 NOTE: HC divided – so Roper CJ (trial) judgment prevailed.
(e)
Breach of intellectual property rights
 Common re infringe copyright, patent, trademarks.
Commonwealth v John Fairfax
Beecham Group v Bristol Laboratories and American Cyanamid v Ethicon
(f)
Breach of the right to work
 If D threatens to enforce restraint of trade of P  P get inj to stop D from enforcing.
 Right to work freely  E right!
Buckley v Tutty (1971) 125 CLR 353 (HL 39.3C)
 FACT: T part of Balmain Rugby club – contract on reserve list. Want o play for another club. But
arrange that can’t got to other club unless fine + special circ. T inj to stop BRC from stopping his
transfer.
 HELD: inj – E right to work freely.
o No need to rely on contract with BRC – suff interest is “right to work”.
(g)
Breach of the rules of a voluntary association (political/religious)
 Rules of voluntary associations NOT enforceable as contract.
 Except: member show prop right adversely affected/taken
o Eg. rules of Anglican Church in Wylde v Attorney General (at the relation of Ashelford)
(1948) 78 CLR 224
o Look below!
 If ben interest in assoc show  exclusive juris of E
 If breach of contract  auxiliary juris of E.
Cameron v Hogan (1934) 51 CLR 358
o FACT: H part of ALP and Prem of Vic. H party to Cth/State Plan which provided inter alia for
reduction of wages. ALP not support this – expel H. H elected to P, but ineligible to be leader of State
Parliamentary Labor Party.
o ISSUE: H want inj against Vic ALP re comply with party rules + expulsion
o Gavan Duffy J: no inj.
o Yes – breach of party rules – contract.
o BUT no inj – insuff prop interest in ALP to support inj.
o Allowed nominal damages
o HC (agreed): no inj – H have no proprietary interest in ALP’s prop.
o Rules of political org  NOT contract duties  domestic.
The litigious propensities of some members of the Anglican Church in NSW were again illustrated (more
than four decades after Wylde) in
Scandrett v Dowling (1992) 27 NSWLR 483
o FACT: ordination of women priests – strongly opposed.
o HELD: no inj.
o No claim of breach of T cf Wylde v Attorney General (at the relation of Ashelford) (1948)
78 CLR 224
(h)
Breach of fiduciary duty (eg. comp director)
Examples of Ct intervention in internal admin of comps:
o Misleading notice/info re coming comp general meetings
o Residues v Southern Resources:
o Breach of directors’ duty (eg. allotment of shares, commercial transaction in take over situation)
o Duty not to use power to pre-empt shareholder’s decisions to re an offer for their shares.
o Esp where director trying to strengthen own interest (conflict of interest): Howard Smith v
Ampol Petroleum [1974] AC 821 (Redmond, p 445) a case in the Privy Council on appeal
from Street J of the NSW Supreme Court; Harlowes Nominees v Woodside Lakes
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Entrance (1968) 121 CLR 483 (Redmond, p 426) and Residues v Southern
Resources(1990) 3 ACSR 207
o Note: breaches of takeover provisions in Corp Act – now covered by Takeovers Panel, with
orders enf by Ct: s659B and C Corp Act.
8.
Injunctions in the auxiliary jurisdiction in aid of
common law and statutory rights
(a)
Injunctions to restrain a breach of contract
o Breach of neg cov  usually SP.
Lord Cairns LC in Doherty v Allman (1878) 3 App Case 709 at 719-720:
“if there had been a negative covenant, I apprehend, according to well settled practice, a
court of equity would have had no discretion to exercise, if parties, for valuable consideration,
with their eyes open, contract that a particular thing shall not be done, all that a court of
equity has to do is to say, by way of injunction, that which the parties have already said by
way of covenant, that the thing shall not be done; and in such a case the injunction does
nothing more than give the sanction of the process of the court to that which already is the
contract between the parties. It is not then a question of the balance of convenience or
inconvenience, or of the amount of damage or of injury – it is the specific performance by the
court, of that negative bargain which the parties have made with their eyes open, between
themselves.”
o Implies that Ct has no discretion?
Cowell v Rosehill Racecourse (1937) 56 CLR 605 (HL 39.21C), Latham CJ noted that :
“It is clear that equity would never have decreed the specific performance of a contract to provide
an entertainment. Equity would never have granted an unconditional injunction restraining the
proprietor of a place of entertainment from excluding from that place a person who had bought a
ticket of admission. Any injunction granted would necessarily have been subject at least to the
condition that the plaintiff coming into equity should behave himself with due propriety during the
entertainment.”
o Gives more flexibility and considerations – fairness, convenience, damages etc.
“Equitable remedies of injunction and specific performance were never applied merely or
generally on grounds of unconscientiousness. They would be used to protect proprietary rights,
enforce negative agreements, and, in special cases only, to enforce affirmative
agreements….These arrangements never included contracts to provide an entertainment in a
particular place in return for payment.”
o NOTE: need for prop interest  no longer correct law.
(b)
Enforce the positive performance of particular contract obligation
o Mand inj (even though framed as enf neg covs)  form of SP
(c)
Restrain the invasion of statutory rights, including regulatory offences
Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Limited
o Gaudron, Gummow and Kirby JJ:
o Erroneous to insist (in public law re enforcement of stat rights, by crim penalty) on P having a
prop right
o Disapprove Eng law that AG do public law except where P show special damage peculiar to
themselves: Boyce v Paddington Borough Council [1903] 1 Ch 109
o Only need to show P have special interest: Australian Conservation Foundation v
Commonwealth (1980) 146 CLR 493 and Onus v Alcoa (1981) 149 CLR 27
 “the dangers involved in the adoption of any precise formula as to what suffices for a
special interest in the subject matter of the action, whether the consequences of doing
so may be unduly to constrict the availability of equitable remedies to support the
public interest in due administration which enlivens equitable intervention in public
law.” “Moreover, the use of equitable remedies to ensure compliance by the executive
with the requirements of the Constitution should not be overlooked” and in
constitutional cases all that is needed is “prejudice to a sufficient material interest”.
Onus v Alcoa
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o FACT: Abo want inj against A from disturbing relics on A’s land.
o HELD: suff standing – could THEMSELVES enforce law.
o Need for tangible/financial interest (in Boyce) no longer critical
(d)
Restrain torts - trespass to property or nuisance
Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287
o FACT: Work next door all hours – ill health to neighbours.
o HELD: inj – nuisance LELC.
o Damages not adequate.
(e)
Injunctions to restrain defamation
o Ct wary of imposing – freedom of speech issue.
Bonnard v Perryman [1891] 2 Ch 269:
“the subject matter of an action for defamation is so special as to require exceptional caution in
exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an
anticipated wrong. The right of free speech is one which it is for the public interest that
individuals should possess, and , indeed, that they should exercise without impediment, so long as
no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong
committed…Until it is clear that an alleged libel is untrue, it is not clear that any right at all has
been infringed”
“and the importance of leaving free speech unfettered is a strong reason in cases of libel for
dealing most cautiously and warily with the granting of interim injunctions.”
Chappell v TCN Channel Nine (1988) 14 NSWLR 153
o FACT: C9 broadcast program re allegation of adultery/sexual activity of C. Allegation prev published
in Melb newspaper.
o Hunt J: inj
o Balance enormous damage to C v no real detriment to C9
o Fact that jury would not find it defamatory – does not mean no inj.
o Exercise
o Bonnard v Perryman NOT binding on Aus law – but still relevant. It is important to
emphasise that the power to grant interlocutory injunctions in defamation caases
will…continue to be exercised with great caution and only in very clear cases.
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 80 ALJR 1672
o Policy: favour freedom of press (public benefit), over damage of reputation.
o Maj: argue importance of free speech under Bonnard v Perryman
o Min: argue evil/injustice of “trial by media”
(g)
Restraint of torts/crimes re domestic violence and crim law
o Gen: can’t get inj against trespass to persons – no exclusive juris (no prop right to self!)
o BUT: recog as auxiliary juris: Parry v Crooks (1981) 27 SASR 1; 6 Fam LR 824; TNK 9.240
11. Concluding comments
(i)
Equity’s role in supplementing many, if not all, crucial other areas of law
o E juris supplements law:
o Contracts
o Torts
o Criminal law
o Constitutional law
o Administrative law
o Private International Law
o Environmental Law.
(ii)
Significance of specific statutory injunction powers
o NOTE: specific stat inj powers  CRUCIAL/DECISIVE in practice
o RE m/d conduct, financial market conduct, corp fid duties  issues of standing, threat, reluctance to
grant QT inj and reluctance to interfere with free speech are GREATLY affected.
o BUT equitable principles will STILL affect Ct’s descretion
Appendix 1 - Example of specific statutory injunction powers
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o s114 of the Family Law Act: unusually broad enforcement powers – police can arrest for breach in
s114AA
o Part 15A of the Crimes Act (NSW) – gives Local Courts juris to make AVOs (normal remedy for
domestic violence, and cheaper/faster than s114 FLA).
o Note: displaces E juris to protect against tort of assault
o s16 of the Commonwealth Administrative Decisions (Judicial Review) Act: unnecessary (sometimes)
to rely on E inj juris to get admin law relief in Fed matter.
o s123 and 124 of the NSW Environmental Planning and Assessment Act: Land and Enviro Ct have
broad powers to restrain breaches of Act and local council planning req.
o THUS: specific stat powers in many practiced areas  important. Overcome E injunction principles
BUT should note that they indicate Ct’s reluctance to make these certain type of orders anyway.
Appendix 2 - s80 and 52 of the Trade Practices Act
Section 80 provides (other specific statutory inj powers are usually based on this):
Injunctions
(1) Subject to subsections (1A), (1AAA) and (1B), where, on the application of the
Commission or any other person, the Court is satisfied that a person has engaged, or is proposing
to engage, in conduct that constitutes or would constitute:
(a) a contravention of any of the following provisions:
(i) a provision of Part IV, IVA, IVB, V or VC;
(ii) section 75AU or 75AYA;
(b) attempting to contravene such a provision;
(c) aiding, abetting, counselling or procuring a person to contravene such a
provision;
(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a
person to contravene such a provision;
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the
contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision;
the Court may grant an injunction in such terms as the Court determines to be appropriate.
Note:
Section 87AA provides that, if boycott conduct is involved in proceedings, the Court
must have regard to certain matters in exercising its powers under this Part. ( Boycott conduct is
defined in subsection 87AA(2).)
(1AA) Where an application for an injunction under subsection (1) has been made, whether
before or after the commencement of this subsection, the Court may, if the Court determines it to
be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not
the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind
mentioned in subsection (1).
(1A) A person other than the Commission is not entitled to make an application under
subsection (1) for an injunction by reason that a person has contravened or attempted to
contravene or is proposing to contravene, or has been or is proposing to be involved in a
contravention of, section 50, 75AU or 75AYA.
(1AAA) Subject to subsection (1B), a person other than the Minister or the Commission may
not apply for an injunction on the ground of:
(a) a person's actual, attempted or proposed contravention of section 50A; or
(b) a person's actual or proposed involvement in a contravention of section 50A.
(1B) Where the Tribunal has, on the application of a person (in this subsection referred to
as the applicant ) other than the Minister or the Commission, made a declaration under subsection
50A(1) in relation to the acquisition by a person of a controlling interest in a corporation, the
applicant is entitled to make an application under subsection (1) for an injunction by reason that
the corporation has contravened or attempted to contravene or is proposing to contravene
subsection 50A(6) in relation to that declaration.
(2) Where in the opinion of the Court it is desirable to do so, the Court may grant an
interim injunction pending determination of an application under subsection (1).
(3) The Court may rescind or vary an injunction granted under subsection (1) or (2).
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(4) The power of the Court to grant an injunction restraining a person from engaging in
conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to engage again, or
to continue to engage, in conduct of that kind;
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person
if the first‑ mentioned person engages in conduct of that kind.
(5) The power of the Court to grant an injunction requiring a person to do an act or thing
may be exercised:
(a) whether or not it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that act or thing;
(b) whether or not the person has previously refused or failed to do that act or thing;
and
(c) whether or not there is an imminent danger of substantial damage to any person
if the first‑ mentioned person refuses or fails to do that act or thing.
(6) Where the Minister or the Commission makes an application to the Court for the grant
of an injunction under this section, the Court shall not require the applicant or any other person, as
a condition of granting an interim injunction, to give any undertakings as to damages.
(6A) Subsection (6) does not apply to an application by the Minister for an injunction
relating to Part IV.
(7) Where:
(a) in a case to which subsection (6) does not apply the Court would, but for this
subsection, require a person to give an undertaking as to damages or costs; and
(b) the Minister gives the undertaking;
the Court shall accept the undertaking by the Minister and shall not require a further undertaking
from any other person.
(8) Subsection (7) does not apply in relation to an application for an injunction relating to
Part IV.
Section 52 provides (re misleading/deceptive conduct)
Misleading or deceptive conduct
(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or
deceptive or is likely to mislead or deceive.
(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by
implication the generality of subsection (1).
o NOTE: s80 broadens E inj juris:
o Extend inj to sit where parties aiding, abetting, attempting, conspiring to breach Act (not just
doing act themselves)
o Lists factors that normally tend to make Ct NOT grant inj: subsect 4,5,6,7
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