Injunctions
Prof Cameron Stewart
Injunctions
• Injunctions are orders made by the courts either restraining
or requiring performance of a specific act in order to give
effect to the legal rights of the applicant.
• An injunction that prevents a course of action is said to be
prohibitive in nature, and this is the traditional essence of
injunctive relief - it commands cessation of a wrongful act.
• Mandatory injunctions compel some behaviour of the
person to whom they are directed.
• In cases where mandatory injunctions are granted it is clear
that the defendant, while not positively engaged in
wrongful conduct, has nevertheless, by a failure or
omission to act, infringed upon the rights of the applicant.
In commanding the doing of an act by such a defendant,
the court is in effect commanding the harmful dormancy to
cease.
Precision
• A fundamental principle of the law relating to
injunctions is that they should be expressed with
precision: ICI Australia Operations Pty Ltd v Trade
Practices Commission (1992) 38 FCR 248 at 259.
• In order to ascertain the meaning of any order
granting an injunction, ‘it is open to have regard
to extrinsic evidence, at least if the language of
the order is ambiguous or susceptible of more
than one meaning’: Ross v Lane Cove Council
[2014] NSWCA 50 at [30].
Wilson v Ferguson [2015] WASC 15
• Mitchell J said at [62],
• It is important that an injunction be cast in terms that
clearly identify the conduct which is prohibited by the
court’s order. This requirement serves both the
interests of the restrained party and the party seeking
the restraint. From the perspective of the restrained
party, it is important that the person be able to
understand what conduct is prohibited so as to know
what action he or she can, and cannot, take without
exposing himself or herself to punishment [for
contempt of court]. From the perspective of the party
seeking the restraint, his or her capacity to enforce the
court’s order by motion for contempt may turn on
whether the undertaking is sufficiently clear.
Formalism
• ‘Excessively narrow formalism in framing the injunction
may wreak its own injustice’: Maggbury Pty Ltd v
Hafele Australia Pty Ltd (2001) 210 CLR 181 at 220; 185
ALR 152 at 181.
• In Orleans Investments v Mindshare Communications
at 110, Giles JA said:
• There are limits to the precision and clarity which can
be attained … [A plaintiff] should not suffer an injustice
through undue insistence on precise statement of what
the [defendant] must do or not do
Jurisdiction?
• Exclusive jurisdiction - used solely in support of equitable rights.
• Auxiliary jurisdiction - relief when those of the common law proved to be
inadequate.
• Statutory reform - Common Law Procedure Act 1854 (UK) which provided
a distinct jurisdiction from both the exclusive and auxiliary operations of
equity and then s 25(8) of the Supreme Court of Judicature Act 1873 (UK) –
just and convienent
Narrower than the exclusive jurisdiction in that it did not enable the common
law courts to issue injunctions in respect of equitable rights, nor did it enable
the making of quia timet injunctions. At the same time, it was seen as wider
than equity’s auxiliary jurisdiction as there was no requirement of either a
proprietary interest or inadequacy of damages
Fusion? No - North London Railway Co v Great Northern Railway Co (1883) 11
QBD 30; Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428 at 454;
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208
CLR 199 at 240
Judicature Act
Judicature Act 1873 (UK) - Section 25(8) stipulated
as follows:
[A]n injunction may be granted or a receiver
appointed by an interlocutory order of the court
in all cases in which it shall appear to the court to
be just or convenient that such order should be
made; and any such order may be made either
unconditionally or upon such terms and
conditions as the court thinks just.
Supreme Court Act 1970 (NSW) s 66;
Why does it matter?
• The distinction is important because with injunctions in
the auxiliary jurisdiction, a plaintiff must first establish
that damages at common law are an inadequate
remedy, and secondly, it may be the case in some
situations that he or she must also show that the right
being protected is a proprietary right.
• However, in the exclusive jurisdiction, neither the
inadequacy of damages nor the proprietary in nature
of the plaintiff’s right are relevant in assessing whether
the injunction should be granted.
Injunctions Protect Rights
Injunctive relief will not be ordered if there has been no
violation of the plaintiff’s rights: North London Railway
Co v Great Northern Railway Co (1883) 11 QBD 30
Australian Broadcasting Corporation v O’Neill (2006) 227
CLR 57 at 78; 229 ALR 457 at 475, Gummow and Hayne
JJ said that ‘where an interlocutory injunction is
sought, it is necessary to identify the legal (including
statutory) or equitable rights which are to be
determined at the trial and in respect of which final
relief is sought’
Victoria Park Racing and Recreation Grounds
Company Ltd v Taylor (1937) 58 CLR 479
• Calling of races by neighbour on the radio
• Injunction sought
• The High Court denied the remedy on the
basis that the defendant’s actions, while they
may have had the effect of reducing
attendance figures, were not in any way illegal
as they did not constitute a trespass
Australian Broadcasting Corporation v Lenah
Game Meats Pty Ltd (2001) 208 CLR 199
• Lenah Game Meats was unable to obtain an injunction
restraining the ABC from broadcasting images which it
had obtained through a third party’s trespass of the
‘brush tail possum processing facility’.
• Despite the illegal origins of the film footage, Lenah
Game Meats was unable to point to any legal or
equitable right which would be infringed by the
broadcaster’s transmission.
• Consequently, there was no jurisdiction for the court to
make an order preventing the broadcast from taking
place
Talbot & Norman [2012] FamCA 96
• Application to injunct an abortion
• No jurisdiction over foetuses
• No basis to make the foetus a child under
jurisdiction
• ‘Father’ had no legal right
• Other cases Paton v Trustees of British
Pregnancy Advisory Service [1979] QB 276; In
the Marriage of F and F [1989] FamCA 41
Exclusive
• Injunctions granted in aid of equitable rights
(such as the equitable obligation of
confidence or a beneficiary’s rights under a
trust) are said to be awarded in equity’s
exclusive jurisdiction.
Auxiliary
• Injunctions granted in aid of common law rights (such
as the restraint of breaches of contract or tortious
wrongs) or statutory rights are said to be awarded in
equity’s auxiliary jurisdiction.
• The distinction is important because with injunctions in
the auxiliary jurisdiction, a plaintiff must first establish
that damages at common law are an inadequate
remedy, and secondly, it may be the case in some
situations that he or she must also show that the right
being protected is a proprietary right (although this
requirement now appears to have fallen away).
Inadequacy of damages
• Injunctions in aid of common law rights are only available
when damages are inadequate: Lucas Stuart Pty Ltd v
Hemmes Hermitage Pty Ltd [2010] NSWCA 283 at [10]
• In Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR
506 at 536, Young JA observed that the modern formulation
of the inadequacy of damages test was found in the
judgment of Sachs LJ in Evans Marshall & Co Ltd v Bertola
SA [1973] 1 All ER 992 at 1005, where his Lordship said that
the question to be asked in this context is: ‘[I]s it just, in all
the circumstances, that a plaintiff should be confined to his
remedy in damages?’
• Damages may be inadequate if they are difficult to assess,
or if they involve a speculative ascertainment of the value
of a loss of a chance’: Covanta Energy Ltd v Merseyside
Waste Disposal Authority [2013] EWHC 2922 (TCC)
Aristoc Industries Pty Ltd v R A Wenham
(Builders) Pty Ltd [1965] NSWR 581
• Aristoc, pursuant to a subcontract with a builder, delivered certain chairs
that it had manufactured for installation at a new hall being built at the
Royal Prince Alfred Hospital in Sydney. Before they were installed, it
became clear that Aristoc would not be paid due to the builder’s financial
difficulties.
• Aristoc sought an injunction against Wenham, the assignee of the builder’s
contract, to restrain Wenham from in any way dealing with the chairs or
obstructing Aristoc’s attempt to recover possession of the chairs.
• Jacobs J held that damages at common law were inadequate in this case.
• Aristoc was more likely to be better off by recovering possession of and
then disposing of the chairs than it was by pursuing any tortious remedy it
might have had in relation to them.
• This was so because there would have been no remedy in detinue if the
chairs had been fixed to the hall’s floor, and, if the remedy of conversion
had been pursued, damages would have been relatively low given that the
chairs were custom made for the hospital hall.
Graham v K D Morris & Sons Pty Ltd
[1974] Qd R 1
• Morris was building a significant construction on adjoining land
owned by Graham. A crane on the building site was left to rotate
freely and, when the wind blew in a certain direction, its jib
encroached over Graham’s property and was suspended over the
roof of her house.
• Campbell J held that the invasion of Graham’s airspace constituted
a trespass and that damages at common law were inadequate
because the danger of the jib suspended over Graham’s house were
very real and would last for 18 months until the construction work
was completed.
• The trespass would also negatively impact on the sale price Graham
could get if she wished to sell her home during that time.
• Morris argued that the grant of the injunction would constitute
hardship because it would have to dismantle the crane at
considerable expense.
• Campbell J rejected this defence on the basis that the positioning of
the crane stemmed from Morris’s negligence and its cavalier
attitude towards the building project.
AB v CD [2014] 3 All ER 667
• What if the contract limits damages?
• CD granted AB a licence to market certain intellectual property
rights. The contract also contained a limitation of liability clause.
• AB sought an interim injunction ‘requiring [CD] to continue in all
respects to perform its obligations under the Licensing Agreement
… and restraining [CD] from terminating or suspending the …
Agreement pending the Award in the arbitration’.
• In ruling that, in the circumstances of the case, the injunction
should be granted, Laws LJ, at 681, was of the view that ‘[w]here a
party to a contract stipulates that if he breaches his obligations his
liability will be limited or the damages he must pay will be capped,
that is a circumstance which in justice tends to favour the grant of
an injunction to prohibit the breach in the first place’.
AB v CD [2014] 3 All ER 667
• Underhill LJ, at 679, explained the rationale behind this approach as
follows:
•
• The primary obligation of a party is to perform the contract. The
requirement to pay damages in the event of a breach is a secondary
obligation, and an agreement to restrict the recoverability of
damages in the event of a breach cannot be treated as an
agreement to excuse performance of that primary obligation. I
[reject the proposition that where] … the only losses suffered which
would sound in damages were of a kind which were excluded by
the contract, no injunction would lie and the contract-breaker
would be able to walk away from his obligations with impunity. That
does not seem to me to be just. The rule – if ‘rule’ is the right word
– that an injunction should not be granted where damages would
be an adequate remedy should be applied in a way which reflects
the substantial justice of the situation.
The requirement of a proprietary
right
In Attorney-General v Sheffield Gas Consumers Co
(1853) 43 ER 119, at 125, Turner LJ, in refusing to
grant an injunction, said that ‘[i]t is on the ground
of injury to property that the injunction of this
court must rest’.
However, in Cardile v LED Builders Pty Ltd (1999)
198 CLR 380, at 395; 162 ALR 294, at 304, the
High Court held that there is no general
requirement that the right must be proprietary
before injunctive relief can be granted.
The requirement of a proprietary
right
Most commentators now agree that the availability of injunctive relief
in equity’s auxiliary jurisdiction is not limited to the protection of
legal rights that are proprietary in nature. A more accurate
statement as to the relevance of the proprietary nature of the right
in question is given by Spry when he writes as follows:
[A]lthough it is incorrect to assert that an injunction can be obtained
only in aid of property or in aid of a proprietary right, there are
cases where in the particular circumstances the only possible
reason for equitable intervention happens to lie in the support of
what may be described as a proprietary right.
I C F Spry, The Principles of Equitable Remedies, 7th ed, Lawbook Co,
Sydney, 2007, p 340.
Types of Injunctions
• Prohibitive or mandatory?
• Interlocutory or perpetual injunctions?
• Before or after infringement?
Mandatory injunctions
• Two kinds - Mandatory restorative injunction and mandatory
enforcing injunction
• Mandatory restorative injunction which compels the defendant to
repair the consequences of some wrongful act that he or she has
committed.
• In order to obtain such an injunction, the plaintiff must show that,
where the wrongful act had not occurred but was merely
threatened, he or she would have obtained a prohibitory injunction
in relation to the apprehended wrong.
• For example, in a situation where a house has been built in
contravention of statutory planning approval requirements, a
mandatory restorative injunction will be granted requiring the
defendant to demolish it, provided that, before the house was built,
the plaintiff can establish that he or she would have obtained a
prohibitory injunction preventing the defendant from building it.
Redland Bricks Ltd v Morris [1970] AC
652
• Morris carried on a business as a market
gardener.
• Next door Redland Bricks conducted a quarrying
business which caused subsidence to Morris’s
land.
• As part of his claim against Redland Bricks, Morris
sought a mandatory injunction to have the land
restored to its original state.
• The cost of doing so was £30,000, whereas the
future damage to Morris, if no injunction was
granted, amounted to £1500
Redland Bricks Ltd v Morris [1970] AC
652
• The House of Lords declined to grant the injunction. Lord Upjohn, at AC
665–6; All ER 579–80, observed that in granting mandatory injunctions,
each case depended very much on its own circumstances.
• First, it must be shown that there is a ‘very strong probability on the facts
that grave damage will accrue to [the plaintiff] in the future’.
• Second, damages at common law have to be inadequate.
• Third, the cost to the defendant of preventing future occurrences needs to
be taken into account, so that if he or she has acted ‘wantonly’ or
‘unreasonably’ the injunction can be granted even if the cost of remedial
work is out of proportion to the actual gain flowing to the plaintiff from
such expenditure being incurred.
• However, if the defendant has acted ‘reasonably’, the cost of complying
with the injunction and the hardship it creates for the defendant must be
weighed up against the loss suffered by the plaintiff.
• Fourth, the injunction, if granted, must be clearly worded so that ‘the
defendant knows exactly in fact what he has to do’.
Grave damage?
• Heydon, Leeming and Turner observe, such a
requirement is not necessary where a
mandatory injunction is granted ordering the
defendant to remove trespassory hoardings. J
D Heydon, M J Leeming & P G Turner:
• Meagher, Gummow and Lehane’s Equity:
Doctrines and Remedies, 5th ed, LexisNexis
Butterworths, Sydney, 2015, p 783.
Jessica Estates Pty Ltd v Lennard
[2007] NSWSC 1434
• The defendant had almost completed the construction of a
house in violation of a restrictive covenant. Brereton J said:
• Factors relevant to the exercise of the Court’s discretion in this
respect include the defendant’s knowledge of the wrongful
nature of his or her acts; whether the defendant has hastened
the completion of the wrongful acts so as to steal a march on
the Court (or the plaintiff); the hardship which would be
caused to the plaintiff by the refusal of an injunction; the
hardship which would be caused to the defendant by the
grant of an injunction; and the extent to which the injuries
suffered by the plaintiff are compensable by an award for
damages.
• Appeal successful in Lennard v Jessica Estates Pty Ltd [2008]
NSWCA 121, but test a relevant statement of the law
Redland Bricks Ltd v Morris [1970] AC
652
• Morris carried on a business as a market gardener.
• On adjoining land Redland Bricks conducted a
quarrying business which caused subsidence to
Morris’s land.
• As part of his claim against Redland Bricks, Morris
sought a mandatory injunction to have the land
restored to its original state.
• The cost of doing so was £30,000, whereas the future
damage to Morris, if no injunction was granted,
amounted to £1500.
• The House of Lords declined to grant the injunction.
Redland Bricks Ltd v Morris [1970] AC
652
• Lord Upjohn, at AC 665–6; All ER 579–80, observed that in granting
mandatory injunctions, each case depended very much on its own
circumstances.
• First, it must be shown that there is a ‘very strong probability on the facts
that grave damage will accrue to [the plaintiff] in the future’.
• Second, damages at common law have to be inadequate.
• Third, the cost to the defendant of preventing future occurrences needs to
be taken into account, so that if he or she has acted ‘wantonly’ or
‘unreasonably’ the injunction can be granted even if the cost of remedial
work is out of proportion to the actual gain flowing to the plaintiff from
such expenditure being incurred.
• However, if the defendant has acted ‘reasonably’, the cost of complying
with the injunction and the hardship it creates for the defendant must be
weighed up against the loss suffered by the plaintiff.
• Fourth, the injunction, if granted, must be clearly worded so that ‘the
defendant knows exactly in fact what he has to do’
Mandatory enforcing injunctions
• The second type of mandatory injunction is the mandatory
enforcing injunction which compels the defendant to do
some positive act that he or she has promised to do for
valuable consideration. In such cases the court will need to
be satisfied that the agreement is specifically enforceable
and that, in all the circumstances, it is just and equitable to
grant the injunction: Burns Philp Trust Co Pty Ltd v
Kwikasair Freightlines Ltd (1963) 63 SR (NSW) 492, at 496.
• In Businessworld Computers Pty Ltd v Australasian
Telecommunications Commission (1988) 82 ALR 499, at 501,
it was observed that courts will be extremely reluctant to
grant a mandatory enforcing injunction if the agreement
would not also have attracted the remedy of specific
performance.
Perpetual injunctions
• Injunctions can also be classified according to
the period of time for which the order is to
remain in force. A perpetual injunction is the
injunction granted after a full hearing of the
claim on its merits. Because the merits of the
case have been argued, the perpetual
injunction is intended to finally settle relations
between the parties.
Interlocutory injunctions
• An interlocutory injunction is a provisional order made at an earlier
stage in the proceedings before the court has had the opportunity
to assess the merits of the application.: Papas v Grave [2013]
NSWCA 308
• Generally, interlocutory injunctions are expressed to be in force
until the trial of the action or further order of the court. The term
‘interim injunction’ is often used interchangeably with interlocutory
injunction. However, there is a technical difference between the
two, in that an interim injunction is more temporary than an
interlocutory injunction, and is usually expressed to remain in force
until a specified date prior to the final hearing.
• Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR
485, the plaintiff obtained an ex parte interim injunction on 9
November 1980 that remained in force until 11 November 1980. On
that date the defendant entered an appearance and the court
granted an interlocutory injunction pending a final hearing of the
matter.
Films Rover International Ltd v Cannon
Film Sales Ltd [1986] 3 All ER 772
• Hoffmann J at 780:
• The principal dilemma about the grant of interlocutory
injunctions, whether prohibitory or mandatory, is that
there is by definition a risk that the court may make the
‘wrong’ decision, in the sense of granting an injunction to a
party who fails to establish his right at the trial (or would
fail if there was a trial) or alternatively, in failing to grant an
injunction to a party who succeeds (or would succeed) at
trial. A fundamental principle is therefore that the court
should take whichever course appears to carry the lower
risk of injustice if it should turn out to have been ‘wrong’ in
the sense I have described.
Inter partes or Ex parte
• In general, interlocutory injunctions will only be
granted after notice of the application has been
given to the defendant, so that the defendant has
the opportunity to resist the claim.
• Thus, the hearing of such application is usually
‘inter partes’.
• However, in urgent cases, interlocutory or interim
injunctions can be granted in the absence of the
defendant, or ‘ex parte’, as occurred initially in
Commonwealth of Australia v John Fairfax & Sons
Ltd.
Papas v Grave [2013] NSWCA 308
• Emmett JA said:
• A party asking, ex parte, for an injunction is under a duty to bring to
the notice of the court all facts material to the determination of the
entitlement of that party to the injunction, including facts adverse
to that party. It is no excuse for that party to say that it was not
aware of the importance of the facts. Utmost good faith is required
of a party seeking to induce the court to act in the absence of
another party. Thus, a party seeking ex parte relief will fail in its
obligation to the court unless it bring forward all the material facts
that the absent party would presumably have brought forward in
opposing the application. The moving party must state its case fully
and fairly and disclose the entirety of the facts relevant to the case.
The party moving the court must give the court a faithful statement
of its case.
International Finance Trust Company Limited v New
South Wales Crime Commission (2009) 240 CLR 319
• Heydon J made the following observations in relation
to the granting of an ex parte injunction:
• (i) as a general rule an ex parte injunction will only be
granted for a very short period of time, during which
time the defendant should be notified and thereby
given an opportunity to oppose any extension of it;
• (ii) it may be that it is granted until further order, but
with the defendant at liberty to apply to have it set
aside;
• (iii) an ex parte injunction will only be granted if giving
notice of the application for the injunction would
enable the defendant to take steps to defeat the
purposes of the application, or there has been literally
no time to give notice.
Orpen v Tarantello [2009] VSC 143
(a)
(b)
(c)
(d)
(e)
(f)
(g)
First, the duty owed by a plaintiff seeking an ex parte order is to
place before the Court all material facts and matters.
Secondly, the duty is an absolute one, owed to the Court.
Thirdly, the disclosure of all material facts must be both full and fair.
Fourthly, it is no excuse for a plaintiff to say he was not aware of the
importance of a particular material fact.
Fifthly, a party fails in this obligation ‘unless he supplies the place of
the absent party to the extent of bringing forward all the material
facts which that party would presumably have brought forward in his
defence to that application’: Thomas A. Edison Limited v Bullock
(1912) 12 CLR 679 at 681–2.
Sixthly, materiality is to be decided by the Court, and not by the
assessment of the plaintiff or his legal advisers.
Seventhly, a plaintiff must disclose any defence he has reason to
anticipate may be advanced. A high standard of candour and
responsibility is required of those who seek ex parte orders.
Significance of interlocutory
injunctions
• An interlocutory injunction often decides the
case
Beecham Group Ltd v Bristol Laboratories Pty Ltd
(1968) 118 CLR 618
• Interlocutory application to prevent breach of patent
• The patents were for the penicillin nucleus in isolation,
called for short 6-a.p.a., for a semi-synthetic penicillin
known as ampicillin which is a broad-spectrum antibiotic
derived from 6-a.p.a., and for certain processes for their
production.
• The infringement were alleged to consist in the advertising,
offering for sale, selling and supplying in Australia of a
semi-synthetic penicillin preparation called hetacillin (or
Versapen) which is manufactured out of Australia.
• Hetacillin is of a chemically different structure from that of
ampicillin, but it is produced by a process which starts with
6-a.p.a
• It was alleged that this constituted an infringemnt
Beecham Group Ltd v Bristol Laboratories Pty Ltd
(1968) 118 CLR 618
• The High Court noted at 622 that the following two
requirements had to be satisfied:
• The first is whether the plaintiff has made out a prima
facie case, in the sense that if the evidence remains as
it is there is a probability that at the trial of the action
the plaintiff will be held entitled to relief ... The second
inquiry is ... whether the inconvenience or injury which
the plaintiff would be likely to suffer if an injunction
were refused outweighs or is outweighed by the injury
which the defendant would suffer if an injunction were
granted.
Beecham Group Ltd v Bristol Laboratories Pty Ltd
(1968) 118 CLR 618
• Injunction granted
• The facts which appear to us to be decisive on this question may be stated
quite briefly. In April 1967, after the plaintiff had been building up in
Australia a substantial business in ampicillin over a period of several years,
the defendant announced its intention of marketing hetacillin in Australia.
The plaintiff on 10th May 1967 warned the defendant that if it began to
do so proceedings for infringement of the patents would be taken. It was
in the face of this warning that the defendant commenced the acts now
complained of, and the action was thereafter instituted without delay. Any
goodwill the defendant may since have built up for hetacillin would of
course be destroyed or damaged by granting an injunction, but that was a
risk the defendant took with its eyes open. If it be not restrained, it will
presumably take advantage of the time before the hearing to subject the
goodwill of the plaintiff's established trade in ampicillin to the prejudice of
competition from a product which the defendant maintains has some
points of superiority. In no meaningful sense could matters be said to be
kept in statu quo if in these circumstances the defendant were left free to
pursue its course, merely keeping an account of the profits it makes.
Prima facie case
The High Court in Beecham Group v Bristol
Laboratories, at 622, said:
• How strong the probability needs to be
depends, no doubt, upon the nature of the
rights [the plaintiff] asserts and the practical
consequences likely to flow from the order he
seeks
Prima facie case
• The prima facie case requirement was discussed in Shercliff
v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR
729, at 735-7, where Mahoney JA noted the following
points: (i) it did not mean a finding that at trial the plaintiff
would win; (ii) the term prima facie is used in the sense of
‘likelihood’, and does not refer to a prediction, but rather to
the nature of the plaintiff’s case; (iii) the term ‘prima facie’
may mean something less than ‘more likely than not’, and
there is no requirement that the plaintiff must show a
‘better than even’ chance of ultimate success; and (iv) a
prima facie case must always be established, irrespective of
whether the second test of balance of convenience favours
the grant of interlocutory relief.
Serious question to be tried
• In various cases judges use the expression
‘serious question to be tried’ rather than
‘prima facie case’. Thus, in Australian
Broadcasting Corporation v O’Neill (2006) 227
CLR 57, at 68; 229 ALR 457, at 466, Gleeson CJ
and Crennan J, observed that a plaintiff had to
establish ‘that there is a serious question to be
tried as to the plaintiff’s entitlement to relief’.
American Cyanamid Co Appellants v.
Ethicon Ltd
• American Cynamid sought an in junction to
prevent a breach of patent over absorbable
sutures
• Trial judge gave injunction; Court of Appeal
overturned on the basis that there was no
prima facie case
• House of Lords – upheld appeal and granted
the injunction
American Cyanamid Co Appellants v.
Ethicon Ltd
• Lord Diplock - In those cases where the legal rights of the
parties depend upon facts that are in dispute between
them, the evidence available to the court at the hearing of
the application for an interlocutory injunction is
incomplete. It is given on affidavit and has not been tested
by oral cross-examination. The purpose sought to be
achieved by giving to the court discretion to grant such
injunctions would be stultified if the discretion were
clogged by a technical rule forbidding its exercise if upon
that incomplete untested evidence the court evaluated the
chances of the plaintiff's ultimate success in the action at
50 per cent. or less, but permitting its exercise if the court
evaluated his chances at more than 50 per cent.
American Cyanamid Co Appellants v.
Ethicon Ltd
• The use of such expressions as 'a probability,' 'a prima facie
case,' or 'a strong prima facie case' in the context of the
exercise of a discretionary power to grant an interlocutory
injunction leads to confusion as to the object sought to be
achieved by this form of temporary relief. The court no
doubt must be satisfied that the claim is not frivolous or
vexatious, in other words, that there is a serious question
to be tried. It is no part of the court's function at this stage
of the litigation to try to resolve conflicts of evidence on
affidavit as to facts on which the claims of either party may
ultimately depend nor to decide difficult questions of law
which call for detailed argument and mature
considerations. These are matters to be dealt with at the
trial.
American Cyanamid Co Appellants v.
Ethicon Ltd
• This passage suggests that the first requirement to be
met for the grant of an interlocutory injunction will be
satisfied if the plaintiff’s claim is not frivolous or
vexatious.
• This suggestion was emphatically rejected by Gummow
and Hayne JJ in Australian Broadcasting Corporation v
O’Neill at CLR 84; ALR 479. Earlier, their Honours, at
CLR 83; ALR 479, said that there is no objection to the
use of the ‘serious question to be tried’ formulation
provided that it is understood as conveying the notion
that the seriousness of the question, like the strength
of the probability referred to in Beecham v Bristol
Laboratories
Balance of convenience
• In relation to the ‘balance of convenience’ requirement, the
court must weigh up the comparative injury that will arise
from granting or withholding an injunction pending trial of
the action, seeking out the major risk of damage and, in
particular, of any irreparable damage.
• In Cayne v Global Natural Resources plc [1984] 1 All ER 225,
at 237, this aspect was referred to as ‘the balance of the
risk of doing an injustice’. In assessing the risk of damage, it
does not matter that, at the stage of the interlocutory
application, the plaintiff has suffered no damage, provided
that actual damage will reasonably result if the
interlocutory injunction is not granted: Swimsure
(Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796.
Balance of convenience
• In weighing up the balance of convenience,
the court may, in the appropriate case, take
into account the effect of its decision on the
interests of third parties: Patrick Stevedores
Operations No 2 Pty Ltd v Maritime Union of
Australia (1998) 195 CLR 1 at 41-2; 153 ALR
643 at 666-7; Bridge Property Investments Pty
Ltd v Garland Lot 3 Pty Ltd [2014] NSWCA 82
at [51]-[52].
Warner-Lambert Company LLC v
Apotex Pty Ltd (2014) 311 ALR 632
• Whether an applicant for an interlocutory injunction
has made out a prima facie case and whether the
balance of convenience favours the grant of such relief
are related questions. It will often be necessary to give
close attention to the strength of a party’s case when
assessing the risk of doing an injustice to either party
by the granting or withholding of interlocutory relief
especially if the outcome of the interlocutory
application is likely to have the practical effect of
determining the substance of the matter in issue or if
other remedies, including an award of damages, or an
award of compensation pursuant to the usual
undertaking, are likely to be inadequate
Hermescec v Carcagni [2008] NSWSC
183
• Hermescec purchased an Italian restaurant in Newcastle –
the Benevenuti - from Carcagni. Soon thereafter, Carcagni
opened up a competing Italian restaurant – the Grifone - a
short distance away from the Benevenuti.
• Hermescec claimed that this constituted a breach of a
covenant in restraint of trade that was agreed to when
Carcagni sold his restaurant. He initiated proceedings for an
injunction to enforce the restraint.
• Even though Hermescec established that he had a strong
case against Carcagni, the application for an interlocutory
injunction failed on the grounds of the balance of
convenience. On this issue, Barrett J, at [21]-[23], said
• If an interlocutory injunction is granted, Grifone would have to close down
pending the court’s final decision on the entitlement of [Hermescec] to
relief by way of permanent injunction or damages or both. That would be
a drastic result. If Grifone were able to stay open with an injunction in
place, it could only be on the basis that the company of which [Carcagni] is
sole shareholder and director was no longer the operator and [Carcagni]
himself was no longer the manager. On [Carcagni’s] evidence, such a
situation would be impossible to achieve in any real sense, given that
Grifone is in substance a one-man business operated by [Carcagni], albeit
with the assistance of employees. The practical result of an interlocutory
injunction would be suspension of [Carcagni’s] Grifone business … [T]his is
a case in which any injunction pending trial would produce the very result
to be put in issue at a final hearing. Such an interlocutory injunction would
affect rights in a permanent fashion on evidence which may be
supplemented and may be found to bear some different complexion at the
trial. At this stage, therefore, ‘the balance of the risk of doing injustice’
favours [Carcagni], even though the prospects that he will in due course be
subjected to a permanent injunction and also be ordered to pay damages
and costs appear, at least at this stage, to be strong.
Castlemaine Tooheys Ltd v South
Australia (1986) 161 CLR 148
• Bond made beer in nonrecyclable containers
• Beverage Container Act 1975 (SA) meant that
they couldn’t sell its beer in SA
• They alleged a breach of s 92 Australian
Constitution (which they later succeeded in
proving)
• They sought an interim injunction to allow
them to sell the beer in SA
Castlemaine Tooheys Ltd v South
Australia (1986) 161 CLR 148
• Mason ACJ - I consider that there is a serious
question to be tried. And, although the
evidence does not give a comprehensive
picture of the plaintiffs' trade and the manner
in which it is likely to be affected by the new
deposit regime, I am inclined to think that the
new regime will affect the plaintiffs' interstate
trade adversely and cause them loss for which
they cannot be compensated adequately
Castlemaine Tooheys Ltd v South
Australia (1986) 161 CLR 148
• In the present case the balance of convenience does not favour the
grant of an injunction restraining the commencement of
prosecutions. Although the plaintiffs' share of the bottled beer
market is small it is possible that non-compliance with the statutory
requirements during the period which will elapse between now and
the determination of validity will present a significant hazard to the
environment in South Australia. If an injunction were granted the
statutory sanction for the provision of the incentive for consumers,
members of the public and commercial organizations to return the
plaintiffs' bottles would be significantly reduced. Moreover, the
grant of an injunction may also be seen, incorrectly, as constituting
some sort of immunity or protection to retailers of the plaintiffs'
beer against subsequent prosecution. The injunction sought is not
confined to a restraint on enforcement of the Act against the
plaintiffs. A further and significant factor is that the defendant,
though maintaining the validity of its legislation, has not threatened
to launch prosecutions.
Interlocutory mandatory injunctions
• Gummow J in Businessworld Computers Pty Ltd v Australian
Telecommunications Commission (1988) 82 ALR 499, at 502-503:
•
• [M]andatory injunctions generally carry a higher risk of injustice if granted
at the interlocutory stage [because]: they usually go further than the
preservation of the status quo by requiring a party to take some new
positive step or undo what he has done in the past; an order requiring a
party to take positive steps usually causes more waste of time and money
if it turns out to have been wrongly granted than an order which merely
causes delay by restraining him from doing something which it appears at
the trial he was entitled to do; a mandatory order usually gives a party the
whole of the relief which he claims in the writ and makes it unlikely that
there will be a trial … An order requiring someone to do something is
usually perceived as a more intrusive exercise of the coercive power of the
state than an order requiring him temporarily to refrain from action. The
court is therefore more reluctant to make such an order against a party
who has not had the protection of a full hearing at trial.
Interlocutory mandatory injunctions
• For some time it was said that a plaintiff
seeking an interlocutory mandatory injunction
would need to show that there was a ‘high
degree of assurance’ that he or she would
succeed at trial: Shepherd Homes Ltd v
Sandham [1971] Ch 340, at 351; [1970] 3 All
ER 402, at 412.
Parmalat Australia Pty Ltd v VIP Plastic
Packaging Pty Ltd (2013) 210 FCR 1
• Collier J said at 12,
• While there is merit in the proposition that the Court
should not approach consideration of interlocutory
injunctive relief differently depending on whether the relief
sought is restraining or mandatory, on balance I am
persuaded that the obligations imposed on a respondent
following an order of the Court granting mandatory
interlocutory relief do necessitate some higher degree of
assurance to the Court that final relief will be granted. This
is particularly so in circumstances where the mandatory
orders lend themselves to a greater likelihood of ongoing
Court supervision, and the practical effect of the orders is,
in effect, to finally determine the rights of the parties.
Lower risk of injustice
• However, this test has now been rejected in some
courts
• Tymbook Pty Ltd v State of Victoria [2006] VSCA 89
• Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988, at [4],
Brereton J said that ‘the same considerations apply to
an interlocutory mandatory injunction as to any other
interlocutory injunction, although the mandatory
nature of the relief sought, and the potential
consequences if it later be undone, is often telling on
[the issue of] the balance of convenience’.
Bradto Pty Ltd v State of Victoria
(2006) 15 VR 65
• The Victorian Court of Appeal said at 73:
• In our view, it is desirable that a single test be applied in all cases
where an interlocutory injunction is sought. There is nothing in the
body of authority to which we have referred, nor any consideration
of principle, which requires a special test to be applied to one subcategory of such injunction applications, namely, those where
mandatory relief is sought … On the contrary … a mandatory
interlocutory injunction may be justified in a particular case
notwithstanding that the court does not feel the requisite ‘high
degree of assurance’ … In our view … whether the relief sought is
prohibitory or mandatory, the court should take whichever course
appears to carry the lower risk of injustice if it should turn out to
have been ‘wrong’, in the sense of granting an injunction to a party
who fails to establish his right at the trial, or in failing to grant an
injunction to a party who succeeds at trial.
JTA Le Roux Pty Ltd as trustee for the FLR Family
Trust v Lawson (No 2) [2013] WASC 373
• Edelman J at [17] said:
• Although the test for a mandatory interlocutory injunction is no different
from a prohibitory interlocutory injunction, an important question in
assessing the balance of convenience is the risk of injustice to the party to
whom the injunction issues. This risk is usually, but not always, high in
cases involving mandatory interlocutory injunctions
• His Honour, at [23], concluded:
• In some, perhaps many, cases where an interlocutory mandatory order is
sought, considerations involving the balance of convenience will include
the extent to which the order intrudes upon the liberty of the respondent.
Another relevant consideration may be whether a defendant who has
raised a triable issue will be deprived, by a mandatory order, of a full
hearing of the issue if the effect of that mandatory order is final
determination of the proceedings. But these matters can, and should, be
assessed as part of the balance of convenience.
Interlocutory injunctions in the context
of defamation
In defamation cases the principles applicable to
interlocutory injunctions are exercised with
exceptional caution: Bonnard v Perryman
[1891] 2 Ch 269 at 284–5; Hatfield v TCN
Channel Nine Pty Ltd at 522–3
Jakudo Pty Ltd v South Australian
Telecasters Ltd (1997) 69 SASR 440
• The reason why interlocutory injunctions are rarely granted in respect of
defamatory material is … that the courts have recognised the substantial
public interest in the free discussion of matters of public or general
interest. That means that when the balance of convenience comes to be
weighed, the public interest in free discussion of matters of public or
general interest weighs heavily against the grant of an injunction.
Particularly will this be so if the defendant puts forward material which
shows that there are reasonable grounds to think that a defence of
justification may succeed … When the real issue is not whether the words
are defamatory, but that of justification, the plaintiff will have shown that
there is a serious question to be tried as to the plaintiff’s entitlement to
relief. But, if there are reasonable grounds to suppose that a defence of
justification may succeed that, coupled with the substantial public interest
in the free discussion of matters of public and general interest, will usually
mean that the balance of convenience is in favour of the refusal of a grant
of an injunction.
Australian Broadcasting Corporation v
O’Neill (2006) 227 CLR 57
• O’Neill was a twice convicted child killer
• ABC proposed to broadcast a television program
which suggested that O’Neill was involved in the
disappearance or possible murder of missing
children (the Beaumont children) and that he was
a multiple murderer.
• His application for an interlocutory injunction to
restrain the broadcasting of the program was
rejected by a majority of the High Court (Kirby
and Heydon dissenting)
Australian Broadcasting Corporation v
O’Neill (2006) 227 CLR 57
Gleeson CJ and Crennan J said:
In the context of a defamation case, the application of
those organising principles will require particular attention
to the considerations which courts have identified as
dictating caution. Foremost among those considerations is
the public interest in free speech. A further consideration is
that, in the defamation context, the outcome of a trial is
especially likely to turn upon issues that are, by hypothesis,
unresolved. Where one such issue is justification, it is
commonly an issue for jury decision. In addition, the
plaintiff’s general character may be found to be such that,
even if the publication is defamatory, only nominal
damages will be awarded.
Undertaking as to damages
• A usual condition of granting an interlocutory
injunction is that the plaintiff must give an undertaking
as to damages. The undertaking operates as a
protection to the defendant should the court later rule
that the interlocutory injunction should not have been
granted. The undertaking binds the plaintiff to
compensate the defendant for any damage suffered by
the defendant on account of the granting of the
interlocutory injunction. If the plaintiff refuses to give
the undertaking, the interlocutory injunction will be
refused: First Netcom Pty Ltd v Telstra Corporation Ltd
(2000) 101 FCR 77
Undertaking as to damages
• Thus, in Cambridge Credit Corporation Ltd v Surfers’
Paradise Forests Ltd [1977] Qd R 261, an undertaking
given by an insolvent company that was in receivership
was taken to be worthless and interlocutory relief was
denied. However, the interlocutory injunction will be
granted if a satisfactory third person provides the
undertaking. It may be the case that the defendant or
third party may also have to provide adequate security
so as to ensure that the undertaking is not rendered
worthless or less valuable by subsequent events
leading up to the final hearing of the matter.
QUIA TIMET INJUNCTIONS
• Generally, injunctive relief relates to some infringement or alleged
infringement of the plaintiff’s rights. However, inunctions can be
granted in relation to circumstances where there has not yet been
an infringement of rights. Injunctions granted on the basis that
there is a threat that the plaintiff’s rights will be infringed are
known as quia timet injunctions. The expression ‘qui timet’ means
‘since he fears’.
• The essential purpose of a quia timet injunction is to prevent a
wrong being committed: Proctor v Bayley (1889) 42 Ch D 390, at
398.
• Traditionally the quia timet injunction was only available in relation
to equitable rights, but is now seemingly available in respect of all
matters by virtue of the injunction provisions of legislation
implementing the judicature system
QUIA TIMET INJUNCTIONS
• In Redland Bricks v Morris, at AC 665; All ER
579, Lord Upjohn observed that a quia timet
injunction arises in the following two types of
case: (i) where, as yet, no harm to the
defendant has occurred but it is threatened or
intended, and (ii) where harm has been done
by the earlier actions of the defendant, and
the plaintiff has been compensated, but the
plaintiff fears that future wrongs may be
committed by the defendant
QUIA TIMET INJUNCTIONS
• In assessing whether to grant a quia timet injunction
the courts have framed the test for the likelihood of an
infringement of the plaintiff’s rights with expressions
such as ‘reasonably certain’ in FCA Finance Pty Ltd v
Moreton Central Sugar Mill Co Ltd [1975] Qd R 250, at
253, and ‘very strong probability’ in Redland Bricks v
Morris, at AC 665; All ER 579.
• As to the necessary loss or damage that is threatened,
it has been said by the courts that it must be ‘grave
damage’ in Thynne v Petrie [1975] Qd R 260, at 262,
‘substantial’ in FCA Finance v Moreton Central Sugar
Mill, at 253, and ‘very substantial’ in Hooper v Rogers
[1975] Ch 43, at 50; [1974] 3 All ER 417, at 421
QUIA TIMET INJUNCTIONS
• The question of hardship to the defendant in quia
timet injunction cases is a particularly important
factor for the court to take into account,
especially if the conduct of the defendant is not
wanton.
• This is so because the plaintiff has not, as yet,
suffered loss or damage and, in any event, the
plaintiff will be able to be compensated by an
award of common law damages or equitable
compensation, as the case may be, if and when
loss or damage does occur
QUIA TIMET INJUNCTIONS
• The question of hardship to the defendant in quia
timet injunction cases is a particularly important
factor for the court to take into account,
especially if the conduct of the defendant is not
wanton.
• This is so because the plaintiff has not, as yet,
suffered loss or damage and, in any event, the
plaintiff will be able to be compensated by an
award of common law damages or equitable
compensation, as the case may be, if and when
loss or damage does occur
INJUNCTIONS AND CONTRACTS
• Generally, the equitable enforcement of contractual rights
is by means of an order for specific performance which
requires the defendant to carry out his or her contractual
obligation. This is the order that is usually sought in relation
to positive contractual obligations.
• However, where there is a negative contractual obligation,
the injunction is the usual equitable relief that is sought. A
negative contractual obligation is one where inactivity on
the part of the promisor is the essence of the obligation.
• Negative contractual obligations can be express or implied.
• The classical illustration of an enforceable negative
contractual obligation is a reasonable restraint of trade.
Injunctions to Enforce Negative
Stipulations
• An important illustration of injunctive relief being sought to enforce
negative contractual obligations is with restraints of trade in the context of
personal service contracts. The typical example of such cases occurs when
X, a person with particular skills and talents, promises to provide those
skills and talents for the benefit of Y (the positive contractual obligation),
but also promises not to provide those skills and talents for the benefit of
anybody else (the negative contractual obligation). If X attempts to breach
the negative contractual obligation, Y will seek to enforce it by obtaining
injunctive relief to prevent X performing those services for some other
person. The usual reason that X wants to breach the negative contractual
obligation is that he or she no longer wants to perform the positive
contractual obligation and wants to offer his or her skills and talents to Z.
Y’s motivation for seeking the injunction is that, if X is prevented from
offering his or her skills and talents to Z, X will decide to perform his or her
positive contractual obligation. Y will rarely seek to obtain an order against
X for specific performance of the positive contractual obligation because it
will, in most cases, be refused on the basis that contracts for personal
services are rarely specifically enforced
Lumley v Wagner (1852) 42 ER 687
• This was a cut-throat battle between the managers of
two London opera houses for the services of Johanna
Wagner, a famous opera singer.
• Lumley, the manager of the established Her Majesty’s
theatre, was first to contract Wagner for a threemonths’ season in 1852.
• Significantly, Wagner was held to have also promised
that during that period she was ‘not to use her talents
at any other theatre, nor in any concert or reunion,
public or private, without the consent of Mr Lumley’.
Lumley v Wagner (1852) 42 ER 687
• Before her contract with Lumley started, Gye, the manager of the recently
established Covent Garden opera theatre, negotiated a contract with
Wagner for the opera singer to perform at Covent Garden.
• Performance by Wagner of her contract with Gye would have meant
breaching the negative contractual obligation in her contract with Lumley.
Lumley sought, and obtained, an injunction to prevent her from doing so.
• Lord St Leonards, at 693, observed that the effect of the injunction was
only to prevent Wagner from appearing at Covent Garden and that it did
not require her to fulfil her obligation to Lumley at Her Majesty’s theatre,
something which his Lordship said he could not directly enforce, although
he conceded that the injunction could well tempt Wagner to perform her
contract at Her Majesty’s theatre.
• She didn’t sing at all which was a disaster for both theatres
Warner Bros Pictures Inc v Nelson
[1937] 1 KB 209
• Warner Bros movie studio obtained an injunction against
Bette Davis, precluding the legendary movie star from
starring in movies produced by other movie studios for a
period of three years.
• Branson J, at 219-20, conceded that Davis could well be
tempted to continue to make movies with Warner Bros, but
ruled that this was no grounds for refusing the injunction.
• A crucial factor in his Honour’s decision was the fact that
Davis was an intelligent and capable woman who could
readily obtain alternative employment if she resolved not
to work for Warner Bros.
• The fact that this alternative employment would be less
financially rewarding than acting was not relevant
Page One Records Ltd v Britton [1967]
3 All ER 822
• The pop group ‘The Troggs’ entered into a management and agency
agreement with Page One Records for a term of five years and
promised not to engage anyone else to be their manager and agent.
• The Troggs sought to engage another manager and agent. Page One
Records sought an injunction to prevent them from doing so.
• In refusing the application, Stamp J, at 827, after referring to
Warner Bros v Nelson, said:
[W]here a contract for personal service contains negative
covenants, the enforcement of which will amount either to a
decree of specific performance of the positive covenants of the
contract or to the giving of a decree under which the defendant
must either remain idle or perform those positive covenants, the
court will not enforce those negative covenants.
Injunctions to Enforce Negative
Stipulations
• Stamp J doubted that The Troggs could continue to function
without the services of a manager and agent or seek other
employment, and that they would need a manager and agent to
function successfully as a pop group. According to Stamp J, at 827,
this was so because:
• The Troggs are simple persons, of no business experience, and
could not survive without the services of a manager … I entertain
no doubt that they would be compelled, if the injunction were
granted, … to continue to employ [Page One Records] as their
manager and agent … [I]t would be a bad thing to put pressure on
the Troggs to continue to employ as a manager and agent one, who,
unlike the plaintiff in those cases [such as Lumley v Wagner and
Warner Bros v Nelson] who had merely to pay the defendant
money, has duties of a personal and fiduciary nature to perform
and in whom the Troggs, for reasons good, bad or indifferent, have
lost confidence and who may, for all I know, fail in its duty to them.
Cowell v Rosehill Racecourse Co Ltd
(1937) 56 CLR 605
•
•
•
•
•
•
Cowell had a ticket to the races (a bare licence)
He got removed
Can a licence be revoked without permission?
Can you get an injunction to prevent the revocation?
A bare licence will not ordinarily be specifically performed
The court acknowledged the possibility of a negative
stipulation being specifically enforced, but it denied the
enforcement of a negative stipulation where the grant of
the licence was only a secondary consideration.
• The licence was subsidiary to the primary right which was
admission to view a public amusement. That primary right
could not be proprietary
Cowell v Rosehill Racecourse Co Ltd
(1937) 56 CLR 605
• HC says there is no grant – deed makes no difference to a bare licence – so
this is not a basis for an injunction
• Latham CJ - In my opinion, the first ground upon which Hurst's Case was
decided (that there was in that case a licence coupled with an interest)
cannot be supported. No interest
• Starke J - Again the fallacy is, I think, in the assumption that the ticket
issued to the plaintiff conferred on him a right to some ascertainable
property in equity: it did not do so in equity any more than at law. The
relationship created by the issue of the ticket was merely contractual. It
was immaterial whether the ticket was under seal or not, for the licence to
hear and see the performance was not coupled with any grant or interest
in any ascertainable property, either in equity or at law. Consequently, it
should follow that the licence to hear and see the performance was
revocable.
• Dixon J - It could not constitute a licence coupled with a grant. For it does
not purport to confer any interest in any corporeal thing.
Cowell v Rosehill Racecourse Co Ltd
(1937) 56 CLR 605
•
•
Second ground – there is an implied contractual term not to revoke which can be protected using
spec perf and injunctions
Latham CJ – In this case the plaintiff relies upon an equitable replication containing an allegation
that the defendant for consideration agreed not to revoke the licence to enter and remain upon the
racecourse. Whether this replication is good or not depends upon whether such an agreement, if
proved, prevents in equity the revocation of the licence in such a sense as to make entirely
ineffectual anything purporting to be a revocation of the licence. Except in Hurst's Case[22] there is
no authority for the proposition that such a licence cannot be revoked at law in cases where no
proprietary interest has been granted. The question is whether there is any principle of equity
which prevents the effectual revocation of such a licence even though the revocation be a breach
of contract. No authority apart from Hurst's Case has been cited to show that this is a principle of
equity. Whether the replication is good or bad depends, not upon rules of pleading, but upon
whether the facts alleged constitute a good answer in equity to the plea raised by the defendant
that the plaintiff was a trespasser. If his licence was effectually revoked, though wrongfully, he was
a trespasser, and the removal of him from the racecourse without the use of undue force did not
constitute an assault. The plaintiff can escape from the position of being a trespasser only by
showing that the licence was not effectually revoked. The only argument to support this
proposition is to be found in the contention that the defendant cannot be heard to rely upon his
own wrongful act in revoking the licence which he had agreed not to revoke. If the principle to be
applied is a principle that the defendant cannot rely upon his own breach of contract, then that
principle would surely have been mentioned in the reports of decided cases. No reference,
however, has been made to any cases decided upon the basis of this principle.
Cowell v Rosehill Racecourse Co Ltd
(1937) 56 CLR 605
• McTiernan J - The substance of the agreement pleaded is
that the respondent for valuable consideration permitted
the appellant to go upon its racecourse to see all the races
to be run at the meeting and to remain there for that
purpose until the conclusion of the meeting. That
agreement is not of the class which equity will enforce. The
stipulation which is in the negative form expressed
substantially the same obligation and does not give the
appellant any equity to the performance of the promise in
specie. In my opinion the contract pleaded created no
equity in the appellant which enabled him to say that, in
the contemplation of a court of equity, he would not be a
trespasser although the respondent assumed to revoke his
licence to go on the land and see all the races
Cowell v Rosehill Racecourse Co Ltd
(1937) 56 CLR 605
•
Starke J – maybe - The plaintiff had a licence given for value, coupled with an
agreement not to revoke it. That was an enforceable right, and it was a breach of
contract to revoke the licence. The replication in the present case expressly alleges
that for a certain consideration the defendant "promised the plaintiff that it would
not during the period of the race meeting and before the conclusion thereof
revoke the said licence." On demurrer, that allegation must be accepted as a fact,
however improbable it may be as a matter of proof. It is, of course, true that a
court of equity had jurisdiction to restrain the violation of stipulations in contracts.
Normally, it so restrained the breach of purely negative stipulations, but exercised
a wide discretion in the case of affirmative stipulations (Doherty v. Allman[68]).
But rights in property and contractual stipulations must not be confused. In Hurst's
Case the plaintiff did not establish any right at law or in equity in any ascertainable
property, but at best the breach of a contractual obligation. Assuming that a court
of equity had jurisdiction to restrain and would by injunction have restrained such
a breach—and cases may be put even of rights "to hear and see performances,"
for instance, a contract for a box or a seat during a season of opera, in which
equity might so act—still, the contract would not create a licence coupled with a
grant or interest in any ascertainable property, which is the relevant consideration.
The question is not whether a court of equity would grant an injunction for a
breach of the contract, but whether an action of trespass is maintainable.
Cowell v Rosehill Racecourse Co Ltd
(1937) 56 CLR 605
• Dixon J – maybe - Is there a liability in equity? Does any equity arise
out of the plaintiff's situation entitling him to relief against the
consequences of the defendant's reliance upon its legal rights?
Would the Court of Chancery have granted an unconditional
injunction restraining the defendant from justifying the assault
complained of in the plaintiff's action on the ground that he was a
trespasser? If so, in New South Wales the justification pleaded by
the defendant is well answered by a replication on equitable
grounds setting forth the facts which would entitle the plaintiff to
such an injunction. Under the Judicature system the justification
would be well answered by a reply setting out facts which formerly
would have entitled the plaintiff to an injunction restraining the
defendant from relying at law on such a justification, even if the
injunction would have been conditional and not absolute.
Cowell v Rosehill Racecourse Co Ltd
(1937) 56 CLR 605
• But I am unable to believe that any equity exists as a result of which
the plaintiff could meet the defendant's justification. This opinion I
base upon the substantial ground that a patron of a public
amusement who pays for admission obtains by the contract so
formed and by acting on the licence it imports no equity against the
subsequent revocation of the licence and the exercise by the
proprietor of his common law right of expelling the patron. The
rights conferred upon the plaintiff by the contract possess none of
the characteristics which bring legal rights within the protection of
equitable remedies, and the position of the plaintiff at law gives
him no title under any recognizable equitable principle to relief
against the exercise by the defendant of his legal rights. No right of
a proprietary nature is given. The contract is not of a kind which
courts of equity have ever enforced specifically. It is not an attempt
to confer a right by parol agreement which at law might have been
effectually granted by a deed. There is no clear negative stipulation
the breach of which would be restrained by injunction.
Curro v Beyond Productions Pty Ltd
(1993) 30 NSWLR 337
• Tracey Curro was prevented from taking up a position
with the 60 Minutes program on the Nine Network,
while she was still contracted to work for the Beyond
2000 program on the Seven Network.
• The Court of Appeal, at 348, viewed Curro’s conduct in
signing a contract to work on the 60 Minutes program
as a ‘flagrant and opportunistic’ breach of her contract
with Beyond Productions, and held that the injunction
would not force her to choose between performing her
contract with Beyond Productions or remaining idle.
Bulldogs Rugby League Club Ltd v
Williams [2008] NSWSC 822
• Sonny Bill left the Bulldogs and went to play for
Toulon in Union
• Interlocutory Injunction sought
• Serious Question> yes contract was still on foot
and it was a negative stipulation
• Irreparable harm> no replacement could match
his star power
• Balance of convenience> overseas? House in
Sydney
• Williams settled the case
Injunctions to enforce statutory rights
• Where there has been a breach of statute,
there are a number of possibilities in so far as
obtaining an injunction is concerned.
• First, the legislation may expressly or impliedly
exclude any remedy other than those which it
expressly provides for, thereby excluding the
remedy of an injunction: Ramsay v Aberfoyle
Manufacturing Company (Australia) Pty Ltd
(1935) 54 CLR 230, at 239-40, 255-6.
Injunctions to enforce statutory rights
• A second possibility is that the statute directly
confers upon a person or category of persons the
right of enforcement. This often occurs in the
context of local government legislation. Thus, in
Cooney v Ku-ring-gai Municipal Council (1963)
114 CLR 582, the local council was authorised by
s 587 of the then Local Government Act in New
South Wales to seek injunctive relief to restrain
the defendant from using premises for the
purposes of a trade or business contrary to the
provisions of a residential proclamation
Injunctions to enforce statutory rights
• The third possibility is that, if no private right is
infringed by a breach of statute, a person will be able
to seek injunctive relief if he or she can bring
themselves within the principles of Boyce v Paddington
Borough Council [1903] 1 Ch 109 at 114:
– A plaintiff can sue without joining the Attorney-General in
two cases: first, where the interference with the public
right is such as that some private right of his is at the same
time interfered with … and, secondly, where no private
right is interfered with, but the plaintiff, in respect of his
public right, suffers special damage peculiar to himself
from the interference with the public right
• In exercising its discretion to grant relief, a court will grant an
injunction only if the breach of statute also amounts to an
infringement of public rights: Ramsay v Aberfoyle Manufacturing
Company (Australia), at 239. Repeated infringements of the statute
may constitute an infringement of public rights.
• In Gouriet v Union of Post Office Workers , at AC 481; All ER at 83,
Lord Wilberforce stated that the granting of relief in such cases was
‘an exceptional power confined … to cases where an offence is
frequently repeated in disregard of a, usually, inadequate penalty or
to cases of emergency’.
• In Newport Borough Council v Khan [1990] 1 WLR 1185, at 1193,
Beldam LJ observed that the discretion to grant the injunction is not
based upon the defendant’s deliberate and flagrant flouting of the
law. Rather, the court needs to draw the inference that the
defendant’s unlawful acts will continue unless and until effectively
restrained by the law and that nothing short of an injunction will
suffice to so restrain the defendant
Mareva or ‘Freezing’ orders
• In Fourie v Le Roux [2007] 1 All ER 1087, at 1090, Lord
Bingham of Cornhill described the purpose of Mareva
orders as follows:
• Mareva (or freezing) injunctions were from the beginning,
and continue to be, granted for an important but limited
purpose: to prevent a defendant dissipating his assets with
the intention or effect of frustrating enforcement of a
prospective judgment. They are not a proprietary remedy.
They are not granted to give a claimant advance security
for his claim, although they may have that effect. They are
not an end in themselves. They are a supplementary
remedy, granted to protect the efficacy of court
proceedings, domestic or foreign.
Mareva orders
• The Mareva order was initially known as a Mareva injunction.
However, in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, at
395-6, 401; 162 ALR 294, at 304, 308, Gaudron, McHugh, Gummow
and Callinan JJ pointed out that the word ‘injunction’ was
inappropriate and should be replaced with the word ‘order’ on the
basis that the doctrinal basis of an injunction differs from that of
the Mareva order. The difference stems from the fact that an
injunction protects a claimant’s legal or equitable rights whereas
the purpose of a Mareva order is to prevent the frustration of the
court process: RFD Ltd v Harris [2008] WASCA 87, at [37].
• In Cardile v LED Builders, at CLR 412; ALR 318, Kirby J preferred the
term ‘asset preservation order’. In England a Mareva order is
generally now referred to as a ‘freezing order’
Jurisdiction
• The most controversial issue surrounding the Mareva order
when it first appeared was the question of the jurisdiction
of the court to make such an order. The Mareva order’s
effect was to prevent an alleged debtor from freely dealing
with his or her assets. However, established authority had
long ago declared that a person ‘cannot get an injunction to
restrain a man who is alleged to be a debtor from parting
with his property’: Lister v Stubbs (1890) 45 Ch D 1, at 14.
Initially the English courts asserted that the then successor
provision to s 25(8) of the Judicature Act 1873 granted
them jurisdiction to make Mareva orders.
• Section 25(8) and its equivalent provisions in Australian
jurisdictions enable the court to grant interlocutory
injunctions in any cases where it is just and convenient to
do so
• Supreme Court Act 1970 (NSW) s 66
Jurisdiction
• In Australia, in Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 at 269,
the Court of Appeal rejected an argument that s 66(4) of the Supreme
Court Act 1970 (NSW) — the New South Wales equivalent of s 25(8) of the
Supreme Court of Judicature Act 1873 (UK) — gave the court jurisdiction
to grant freezing orders. Rather, the court based jurisdiction on either the
court’s inherent jurisdiction or s 23 of the Supreme Court Act 1970 (NSW),
which stipulated that “[t]he Court shall have all jurisdiction which may be
necessary for the administration of justice in New South Wales”. The court
doubted if there was any distinction between s 23 and the court’s inherent
jurisdiction.
• In Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 617 the High
Court followed the reasoning in Riley McKay Pty Ltd v McKay and
confirmed that the jurisdiction to grant a freezing order stemmed from
either the court’s inherent jurisdiction or the equivalents of s 23 of the
Supreme Court Act 1970 (NSW) in other Australian jurisdictions. In all
Australian jurisdictions, the court rules now explicitly confer power upon
the court to grant freezing orders.
• Federal Court Rules 2011 (Cth) div 7.4; Uniform Civil Procedure Rules 2005
(NSW) pt 25 div 2.
Requirements for obtaining a Mareva
Order
• In Glenwood Management Group Pty Ltd v Mayo (1991) 2 VR 49, at
49-54, Young CJ indicated that there are three basic requirements
to be satisfied before a court will grant a Mareva order. They are:
• (i) that the plaintiff a good arguable case;
• (ii) that there is a risk of dissipation or secretion of assets so as to
render any judgment which the plaintiff may obtain nugatory; and
• (iii) that the balance of convenience favours the grant of a Mareva
order. His Honour, at 54-5, also observed that ‘the three elements
overlap and that the granting of a Mareva [order] is always a matter
of discretion’.
• For example, ‘as the strength of the arguable case diminishes so the
balance of convenience moves in favour of the defendants and vice
versa’.
Ex parte application
•
•
•
•
•
In most cases the initial grant of a freezing order is on an ex parte basis — without
the defendant’s presence.
In such circumstances the plaintiff must disclose all material facts known to him or
her and is required to draw the court’s attention to all important factual, legal and
procedural aspects of the application: Siporex Trade v Comdel [1986] 2 Lloyd’s Rep
428 at 437; Memory Corporation plc v Sidhu (No 2) [2000] 1 WLR 1443 at 1459–60;
Kazakhstan Kagazy Plc v Arip [2014] EWCA Civ 381 at [36].
The duty of disclosure here is higher than almost any other circumstances where
disclosures of this kind are required by a court: Payabi v Armstel Shipping
Corporations [1992] QB 907 at 918.
The disclosure requirement extends to facts which the plaintiff would have known
if he or she had made proper inquiries: Brink’s-Mat Ltd v Elcombe [1988] 3 All ER
188 at 192.
The extent of the inquiries that the plaintiff is required make will depend upon the
circumstances of the case including ‘(a) the nature of the case which the applicant
is making when he makes the application; and (b) the order for which application
is made and the probable effect of the order on the defendant …; and (c) the
degree of legitimate urgency and the time available for the making of inquiries’:
Brink’s-Mat Ltd v Elcombe [1988] 3 All ER 188 at 192.
Undertakings as to damages
• A plaintiff seeking a freezing order will usually be required to give an
undertaking as to damages: Cardile v LED Builders at CLR 401; ALR 309.
• The undertaking will require the plaintiff to compensate the defendant or
any third party that is adversely affected by the grant of the freezing order
in the event that the plaintiff does not succeed in his or her cause of
action against the defendant.
• However, a unanimous New South Wales Court of Appeal in Frigo v
Culhaci [1998] NSWSC 393, as well as Kirby J in Cardile v LED Builders at
CLR 428; ALR 330, were all of the view that a freezing order should never
be granted without there being an undertaking as to damages.
• In the rare cases in which courts have dispensed with the necessity of an
undertaking as to damages, such as Allen v Jambo Holdings Ltd [1980] 2 All
ER 1259 and United States Securities and Exchange Commission v
Manterfield [2009] 1 Lloyd’s Law Rep 399, it has generally been in
circumstances where the plaintiff had an unusually strong cause of action
against the defendant.
• The difficulty associated with the assessment of damages pursuant to an
undertaking is one of the reasons for the care with which the courts
approach granting freezing orders: Cardile v LED Builders at CLR 404; ALR
311.
Undertakings as to damages
• The court rules relating to freezing orders
stipulate that the undertaking as to damages
should be accompanied by an appropriate
bank guarantee from the plaintiff to support
the undertaking. Although the court may
dispense with the need for a guarantee, there
is a duty upon a plaintiff or his or her lawyer
to raise the matter explicitly with the court at
the time of making the application
Heartwood Architectural Timber & Joinery Pty
Ltd v Redchip Lawyers [2009] QSC 195
• A counsel for the plaintiff deleted the references to providing a
guarantee from the standard form documents prescribed by the
court rules in the application papers lodged with the court. The
reason for doing so was that the plaintiff at the time was in some
financial difficulties and giving a guarantee would have made things
more difficult for them.
• At the time of the ex parte application for the freezing order this
was not noticed by the court, nor was it raised by the plaintiff’s
counsel.
• Some months later the freezing order was discharged and the
defendant sought to enforce the undertaking as to damages.
• However, the plaintiff had by then gone into liquidation, rendering
the undertaking worthless because of the absence of any bank
guarantee.
• The court found that counsel’s conduct constituted a serious
dereliction of his duty to the court in relation to the obligation to
make full disclosure to the court at the time of seeking the order
A risk of dissipation of assets
• The risk that the defendant will dissipate
assets before judgment refers to the
underlying basis of the Mareva order and has
been described as ‘the heart and core’ of the
Mareva order: Barclay-Johnson v Yuill [1980] 3
All ER 190, at 194.
• There must be a real danger that the
defendant will default if judgment is obtained
against him or her
The plaintiff’s cause of action
• A Mareva order can only be obtained if the plaintiff has a cause of
action that is justiciable within the jurisdiction. If the Mareva order
is not ancillary to some such pre-existing cause of action it will not
be granted. In Siskina v Distos Compania Naviera SA [1979] AC 210,
at 256; [1977] 3 All ER 803, at 824, Lord Diplock said:
•
• A right to obtain [a Mareva order] 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 [a Mareva order] is
merely ancillary and incidental to the pre-existing cause of action. It
is granted to preserve the status quo pending the ascertainment by
the court of the rights of the parties.
Balance of convenience
•
•
•
In exercising its discretion whether or not to grant a Mareva order the court
weighs up the strength of the plaintiff’s cause of action and the risk that the
defendant will dissipate his or her assets against various discretionary factors such
as delay and whether there has been a full and frank disclosure by the plaintiff. In
Cardile v LED Builders, at CLR 380; ALR 311, the High Court said:
Discretionary considerations generally also should carefully be weighed before an
order is made. Has the applicant proceeded diligently and expeditiously? Has a
money judgment been recovered in the proceedings? Are proceedings (for
example civil conspiracy proceedings) available against the third party? Why, if
some proceedings are available, have they not been taken? Why, if proceedings
are available against the third party and have not been taken and the court is still
minded to make a Mareva order, should not the grant of the relief be conditioned
upon an undertaking by the applicant to commence, and ensure so far as is
possible the expedition of, such proceedings? It is difficult to conceive of cases
where such an undertaking would not be required. Questions of this kind may be
just as relevant to the decision to grant Mareva relief as they are to a decision to
dissolve it. These are matters to which courts should be alive.
Cardile v LED Builders Pty Ltd (1999)
198 CLR 380
•
•
•
•
•
•
•
•
•
•
Mr and Mrs Cardile were the only shareholders of Eagle Homes a housing construction business
In July 1993 Eagle Homes declared a dividend of $400,000 in favour of Mr and Mrs Cardile
In October 1993 and December 1994, LED commenced two lots of proceedings in the Federal
Court against Eagle Homes for infringement of LED's copyright in certain building plans.
On 22 May 1995, Ultra Modern Developments Pty Ltd ("Ultra Modern") was incorporated by Mr
and Mrs Cardile also controlled that company.
On 6 June 1995, Eagle Homes registered the name "Eagle Homes" under the Business Names Act
1962 (NSW) ("the Business Names Act"). On the same day, Ultra Modern became the registered
proprietor of that name.
In October 1995, Ultra Modern obtained a builder's licence. Ultra Modern has since that time
carried on a business of building houses in accordance with new plans. Eagle Homes continues to
construct houses but in accordance with earlier plans which are likely to become commercially
obsolete.
Both companies used the business name "Eagle Homes".
In 30 June 1996, a dividend of $800,000 was declared by Eagle Homes and some $658,977.12 of
that dividend was actually paid to the Cardiles
Judgment was delivered against Eagle Homes at the end of July 1996. LED elected for an account of
profits and judgment upon the taking of the account is presently reserved in the Federal Court. The
liability of Eagle Homes in money terms remained to be quantified
Could a freezing order be issued against the Cardiles?
GAUDRON, McHUGH, GUMMOW AND
CALLINAN JJ
•
•
In Australia, for many years, Mareva orders have been made in aid of the exercise
of the specific remedies provided for execution against judgment debtors. Such
orders are not interlocutory as they may operate after the recovery of final
judgment, yet they are impermanent in the sense that they preserve assets and
assist and protect the use of methods of execution and do not substitute for
them[72]. In respect of their operation after, as well as before, the making of
orders for final relief, the Mareva order should, in general, be supported by an
undertaking as to damages.
Here, Ultra Modern and Mr and Mrs Cardile are third parties in respect of LED's
action against Eagle Homes. The effective exercise of the jurisdiction in such
litigation may call for asset preservation orders against third parties who may hold
or otherwise be interested in (in the sense we explain further in these reasons)
assets of the judgment debtor or potential judgment debtor or who may be
obliged to contribute to the property of such a judgment debtor to help satisfy the
judgment.
GAUDRON, McHUGH, GUMMOW AND
CALLINAN JJ
•
•
•
Alienation is the transfer of value from one person to another[99]. It is usually understood as
applying only to a transfer of property effected by the action of the transferor, as distinct
from a transfer by involuntary operation of law[100].
Money, as property, is clearly susceptible of transfer or alienation as is any other property.
The declarations of the dividends (which appear to have been final not interim dividends)
gave rise to debts payable by the company to the shareholders[101]. The alienation of
property was made by the company in discharging its indebtedness to the shareholders.
Here, LED has to show a reasonably arguable case on legal as well as factual matters. This we
think it does with respect to the application of s 37A to the dividends. This is subject to some
qualifications as to amount, which we will consider shortly.
But, in any event, the principle which we think appropriate has application here on another
basis. The balance sheet of Eagle Homes discloses that, at the time of declaration of
dividends, and as a result of the payment or crediting of the dividends (the occurrence of
which counsel for the appellants did not and could not seriously dispute), the company
appeared to have insufficient funds to meet the likely judgment debt. A liquidator, probably
appointed on the initiative of LED but acting on behalf of all creditors, would be entitled to
pursue and recover those funds[102].
‘Anton Pillar’ or search orders
• The Anton Piller order derives its name from the case of Anton Piller
KG v Manufacturing Processes Lt
• An Anton Piller order is similar to a Mareva order in that it seeks to
preserve property and prevent the defendant frustrating the
administration of justice. But, rather than ensuring that the
judgment debt will ultimately be met by the defendant, it aims to
gather and protect crucial evidence to the plaintiff’s case, which
may be yet to commence. The Anton Piller order enables this by
ordering the defendant to allow the plaintiff access to the
defendant’s premises so that the plaintiff may inspect, copy and
collect material which is necessary for it to successfully bring its
case but which it fears will be destroyed: Long v Specifier
Publications Pty Ltd (1998) 44 NSWLR 545, at 547 d [1976] 1 Ch 55
Jurisdiction
• In Simsek v Macphee (1982) 148 CLR 636, at 640-1; 40 ALR
61, at 65, Stephen J, in a single instance decision in the High
Court, stated that the power of the court to grant an Anton
Piller order stemmed form the court’s inherent jurisdiction.
• In other cases it has been said that the jurisdiction rests
either on the inherent jurisdiction of the court or the
statutory conferral of powers to aid the operation of the
courts, such as s 23 of the Federal Court Act 1976 (Cth):
Microsoft Corp v Goodview Electronics Pty Ltd (1999) 46 IPR
159.
• In all Australian jurisdictions the court rules now explicitly
confer power upon the court to grant Anton Piller orders:
Federal Court Rules 2011 (Cth) Div 7.5; Uniform Civil
Procedure Rules 2005 (NSW) Pt 25 Div 3
Anton Piller KG v Manufacturing
Processes Ltd [1976] 1 Ch 55
•
•
•
•
•
•
The defendants, an English company and their two directors, were the United
Kingdom agents of the plaintiffs who were German manufacturers of frequency
converters for computers.
The plaintiffs claimed that the defendants were in secret communication with
other German manufacturers and were giving them confidential information about
the plaintiffs' power units and details of a new converter, the disclosure of which
could be most damaging to the plaintiffs.
The plaintiffs sought an order to prevent the defendants from disposing of
documents in their possession relating to the plaintiffs' machines or designs
The plaintiffs applied ex parte for an interim injunction to restrain the defendants
from infringing their copyrights and disclosing confidential information and for an
order for permission to enter the defendants' premises to inspect all such
documents and to remove them into the plaintiffs' solicitors' custody.
Brightman J granted the interim injunction but refused to order inspection or
removal of documents
The Court of Appeal, hearing ex parte, allowed for the inspection and removal of
documents
Anton Piller KG v Manufacturing
Processes Ltd [1976] 1 Ch 55
• Ormrod LJ set out the essential elements of
obtaining this ex parte relief at 62:
• First, there must be an extremely strong prima
facie case. Secondly, the damage, potential or
actual, must be very serious for the applicant.
Thirdly, there must be clear evidence that the
defendants have in their possession incriminating
documents or things, and that there is a real
possibility that they may destroy such material
before any application inter partes can be made
Requirements for an Anton Piller
Order
• The ‘clear evidence’ of both possession and risk
of destruction required under the third element
is certainly the greatest challenge to the plaintiff.
Despite an early generosity in granting Anton
Piller orders by the courts, it is apparent that
more is needed these days than a mere suspicion
that the defendant will shred the evidence. An
Anton Piller order is not an investigatory order:
Microsoft Corp v Goodview Electronics Pty Ltd
(1999) 46 IPR 159, at 164; Hytrac Conveyors v
Conveyors International Ltd [1982] 3 All ER 415,
at 418
The rights of the defendant
• A defendant who is confronted on his or her doorstep by a
party of persons wishing to execute an Anton Piller order
faces a fairly onerous task in resisting them. Refusal to
comply with the court’s order is, of course, contempt and
this will be found even when the defendant has refused to
comply in order to launch an ultimately ill-fated application
to have the order dissolved. The order may be challenged
on the ground that any of the requirements the plaintiff
was supposed to meet - including the manner of the
order’s execution - have not been properly addressed.
Given the high importance which the court places upon a
plaintiff in respect of meeting these requirements prior to
an order being granted, it is extremely unlikely that such an
order will be set aside upon application by the defendant
Brags Electrics Pty Ltd v Gregory
[2010] NSWSC 1205
• Brereton J at [17],
• First, where [a search] order is made ex parte (as it ordinarily will be), an
applicant to set the order aside bears an onus of showing some reason
why it should be set aside. However, it may be a sufficient reason to set
aside the order that the grounds for such an order were not satisfied.
Secondly, where such an application is made on the ground that there has
been bad faith or material non-disclosure, then the court may set aside
the order ab initio, but otherwise a discharge will operate in futuro only.
Thus, where an application is made to set aside or discharge the order on
the basis that the grounds for making such an order were not established,
that will be of little utility if made after the order has been executed. At
least in the absence of bad faith or non-disclosure, the remedy for a
defendant where it is shown ultimately that [a search] order ought not
have been made, is not to have the order set aside, but pursuant to the
undertaking as to damages. Thirdly, on an application to set aside [a
search] order, the court may take into account on the hearing of the
application the ‘fruits of the order’ – that is to say, any evidence or
admission procured as a result of the order – and any further evidence
adduced in the meantime