Injunctions are a very important legal tool in equity used by parties where a dispute exists to prevent another party or person from doing something (or in rarer cases, to compel someone to do something). However, it is important to realise that injunctions in Victoria, as in all other Australian States and Territories, are generally only a temporary fix – they are orders made before the Court decides the matter as a whole.
Usually they are made after the commencement of court proceedings and before the matter is finally determined (or the court issues another type of injunction). The idea is usually that the status quo is maintained while the court decides finally what to do. These injunctions are referred to as interlocutory injunctions.
Injunctions can refer to many things. Some examples could include preventing property from being sold to another party, to stop construction developments (or the destruction of buildings), to stop someone’s name being published in a defamation case. It all depends on the circumstances of the case. Most injunctions are issued to stop someone from doing something; these are often called restrictive injunctions. Very rarely, injunctions may be issued to make someone actually do something. These are called mandatory injunctions.
Just about any court or tribunal can hear applications for injunctions, as long as it has the authority to do so under legislation.
The Victorian Supreme Court has the original authority to hear applications for injunctions – section 37 of the Supreme Court Act 1986 provides the specific authority to do so. It also allows the Supreme Court to issue injunctions preventing people from removing or dealing with assets located in Victoria, even if that person isn’t normally a resident of the state.
The Act also allows other State courts to issue injunctions. Section 31 and 33 of the Supreme Court Act gives the power to the County Court and to the Magistrates Court within the jurisdiction of the particular court.
The County and Magistrates Courts have the power to issue injunctions during proceedings (or where urgent under Regulation 4.08; before proceedings) under Order 38 of the County Court General Civil Procedure Rules 2008 and Order 38 of the Magistrates Court General Civil Procedure Rules 2010) respectively.
VCAT also has the specific power under section 123 of the Victorian Civil and Administrative Tribunal Act 1998 to issue injunctions which fall within the range of matters heard by VCAT if it is just and convenient to do so. It can do so on its own initiative or by application, and does not necessarily need to afford someone affected the right to be heard before it is issued. These injunctions last for 28 days if granted.
At a federal level, injunctions can be issued by the Family Court in relation to family law matters under section 114 of the Family Court Act 1975 (Cth). The Federal Court and the High Court can also issue injunctions.
The party seeking the injunction will need to satisfy the court of two things;
- That they have a prima facie case; that is, a case which has a realistic (or likely) chance of winning and;
- That the injury or inconvenience to the plaintiff outweighs the injury/inconvenience the defendant would endure.
This is because courts may be wary in cases where later it is determined that whatever was stopped should not have been stopped in the first place, particularly if the damage might be irreparable. Normally courts will also require that notice is given to the defendant, so that they may respond in turn. Courts can issue injunctions with or without conditions as they see fit and may require the plaintiff to provide an undertaking as to damages in case the matter is finally resolved in favour of the defendant.
Injunctions can be issued depending on the circumstances. Some injunctions may need to be issued urgently. If this is the case, it may not be possible to give the defendant proper notice and these injunctions are called interim injunctions. They are generally dealt without the defendant being present, and in these situations, where one party is missing, they are called ex parte applications.
It is not necessarily the case that proceedings have even been issued. In some cases the injunction is needed before proceedings are issued in cases where the defendant may try to destroy or dispose of the thing in question. They need to be issued no later than 2pm of the day prior to the hearing. Other injunctions last until the hearing, at which time the matter will be finally decided. These are the more common forms of injunctions that are issued.