Commercial law

What is an injunction?

---

An injunction is a court order granted to make a person or entity either do something or refrain from doing something.

 You can have an interim injunction, interlocutory or final injunction. An interim injunction is for a set period of time; an interlocutory injunction is granted while legal proceedings are in process but have not yet been completed; a final injunction is one that is granted and lasts forever.

How do you get an injunction?

You can apply for an injunction through any court (including VCAT) when you first apply or any time before the court makes its final decision.

It can take a week or two for an injunction to be granted. However, if you feel you are at immediate risk of harm, one can be granted on the same day.

If an injunction is granted rapidly without notice, you will need to go back to court at a later date for a hearing, once the intended party has been notified.

Types of Injunctions

There are different types of injunctions that serve different purposes.

Perpetual Injunction

A perpetual injunction is another name for an interlocutory injunction. It is a temporary order enforced while a trial is in motion, or until ‘further notice’. These are often sought for immediate protection until a court has time to hear the case.

A perpetual injunction is often granted if there are contractual disputes or property disputes.

Mandatory Injunction

This is the positive version of a perpetual injunction. This type of injunction compels a party or entity to do some act or service.

An example of a mandatory injunction could be when one party refuses to comply with their contractual agreement, or when they have deliberately disregarded the claimant’s rights in a matter. For example, your neighbour has started constructing over your boundary and you want them to pull down the section of their building that encroaches on your land.

Prohibitory Injunction

Prohibitory Injunctions are orders given by the courts, telling a person, or party, to refrain from doing a thing or an act. Often sought as per a perpetual injunction- don’t do this thing while the court case is still running.

This kind of injunction is often used to prevent the sale of a product or property, to stop a person from gaining employment with a competitor, or the use of a publication or confidential information by someone.

Quia timet injunction

This type of injunction is enforced when a wrong act is anticipated. Quia timet is Latin for ‘because he fears’, so if someone is afraid for their safety, or there is an immediate threat to property, this injunction will be granted.

If the claimant has received threats, but no action has been taken yet, this injunction would be granted.

Ex parte Injunction.

For urgent and critical situations, an injunction can be granted without hearing from the respondent. These kinds of injunctions usually only last a few days, so a hearing can be arranged for all parties to have a say.

It must be stressed that this kind of injunction only occurs in cases of real urgency. If parties have been unable to serve papers or have tried their hardest to make contact with the respondent, then an ex parte injunction may be considered. Additionally, an ex parte injunction is appropriate where there is fear that assets will be dissipated. Such an injunction is normally part of an application to obtain freezing orders to stop a party from dissipating their assets.

Permanent Injunction.

A permanent injunction is generally granted as the final act in a court case. Whatever the order is, requiring a person or party to cease a specific action, it is a decision that is to be followed forever.

This injunction can make people fulfil a contractual obligation where before they had simply refused, or return items that have been refunded.

Frequently Asked Questions About Injunctions

How much does an injunction cost

Rosendorff’s team of litigation Lawyers provide our clients with an accurate quote for our services, know how much our services will cost upfront.

What courts have jurisdiction to order injunctions?

In Victoria, the Supreme Court has the original authority to hear applications for and grant injunctions.

Sections 31 and 32 of the Supreme Court Act also allow the County Courts and Magistrate Courts to grant injunctions within their jurisdiction.

VCAT also has powers to grant injunctions, under section 123 of the Victorian Civil and Administrative Tribunal Act 1998.

What’s the difference between an injunction and a restraining order?

There are similarities between the two. They both are intended to restrict an offender’s actions and intent to protect a victim.

An injunction can be issued to restrict a person’s movements or actions before a hearing and during the hearing. A permanent injunction can be put in place at the end of a hearing.

A restraining order can be imposed after a hearing, regardless of whether guilt was found or not. A restraining order is not a permanent thing, unlike a permanent injunction.

What happens if there is a breach of injunction?

If the person, or entity, that is the subject of an injunction breaches the conditions of that injunction, they can be held in contempt of Court. Punishment can include fines and/or actual imprisonment.

Generally, a response from the respondent will be sought regarding the breach of the injunction. This may resolve the issue without further need for punitive actions.

Looking for Assistance?

The team at Rosendorff Lawyers are upfront and straight talking and won’t waste your time. If you need an injunction, we’ll help. If you need help defending an injunction, we can help with that too.

Call us on 1300 127 330, and talk to our eminently qualified business lawyers about injunctions, or any other legal matter you may have.