What is an Injunction? (Vic)

An injunction is a court order that a person or an entity either do something or refrain from doing something. They can be sought on an interlocutory, interim or permanent basis. This article deals with injunctions in Victoria.

Interim, interlocutory or final?

If an injunction is sought on an interlocutory basis, this means that it is granted while legal proceedings are afoot but have not been completed. The order will only last until the determination has been made after the final hearing.

An interim injunction lasts for a specific amount of time. It does not have to be an interlocutory injunction. This is because a court can order an interim injunction after the finalisation of a legal proceeding. However, the terms interim and interlocutory injunction are sometimes used interchangeably.

A permanent or final injunction is an order that lasts forever and is ordered at the end of a legal proceeding. Different requirements need to be satisfied for each of these orders.

When can an injunction be ordered in Victoria?

The following has to be made out for an interlocutory injunction to be ordered:

1. A serious question exists that needs to be tried;
2. Attempts have been made to rectify the issue, but they have been unsuccessful;
3. Monetary compensation could not properly remedy the situation;
4. The application is urgent;
5. The court should make the order on the balance of convenience.

Often interlocutory injunctions are heard on an ex parte basis. This means that only the party arguing for the order is present at the hearing. There is an extra obligation on that party to disclose all relevant factual and legal matters, even those which do not support their case, as the other party is not present to do so.

In determining whether to grant a final or an interim injunction that is not interlocutory, the court will consider all of the evidence and decide if, on the balance of probabilities, such an order should be made.

What courts have jurisdiction to order injunctions?

In Victoria, the Supreme Court has jurisdiction to make orders for injunctions under section 37 of the Supreme Court Act 1986. The Supreme Court also has the power to order that assets not be moved from Victoria. This can also apply where the people who control the assets do not usually reside in Victoria.

The Magistrates Court and County Court in Victoria also have jurisdiction to hear applications for injunctions if the subject matter comes within their jurisdictional limits. This power is conferred on them by sections 31 and 33 of the Supreme Court Act 1986. The County Court General Civil Procedure Rules 2018 and the Magistrates Court General Civil Procedure Rules 2020 also confer power on these Courts to hear injunction applications in certain circumstances.

The Victorian Civil and Administrative Tribunal (VCAT) also has the power to hear applications for injunctions for matters that fall within its jurisdiction. This power comes from section 123 of the Victorian Civil and Administrative Tribunal Act 1998. VCAT also has the power in some circumstances to order an injunction without a party bringing an application.

Injunctions about family court matters must be heard by the Family Court. This court has the power to hear applications under section 114 of the Family Court Act 1975.

The High Court of Australia and the Federal Court also can hear applications for and issue injunctions.

What are some different types of injunctions?

In addition to interlocutory, interim and permanent injunctions, other types of orders include the following:

• Prohibitory injunction. These prevent one party from doing something. An example might be that an order is made to prevent a local council from cutting down a much-loved tree;
• Mandatory injunction. These force one party to do something. An example might be forcing someone to comply with their contractual obligations;
• Mareva injunction. This restrains a party from moving their assets. The name of this type of injunction is taken from the name of the case in which this type of injunction was first granted – Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyds Rep 509;
• Anton Piller order. This is an order made ex parte ordering property in possession of the party on whom it is made can be taken from their control so that discovery can take place. These types of injunctions can be made where there is a risk that evidence may be destroyed. The name of this type of injunction was taken from the case in which such an order was first made – Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55.

What can be restrained or ordered?

The things that may be ordered include the following:

• That a restraint of trade clause in an employment contract not be breached by the employee by going to work for a competitor: Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337;
• That repeated breaches of copyright cease: Motorcycle Aftermarket Spares Pty Ltd v Tamworth Cycle Tune Pty Ltd [2014] FCA 1433;
• That a database be prevented from being uploaded to a flash drive by an employee: SAI Global Property Division Pty Ltd v Johnstone [2016] FCA 1333; and
• That confidential information not be disclosed: State of Victoria & Anor v Nine Network [2007] VSC 431.

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