Interim preservation orders including interlocutory injunctions
- [2-2800] Jurisdiction
- [2-2810] Generally
- [2-2820] Applications generally
- [2-2830] Undertaking as to damages
- [2-2840] Fair Trading Act 1987 and the Australian Consumer Law (NSW)
- [2-2850] Defamation
- [2-2860] Receivers
- [2-2870] Injunctions to restrain the commencement of winding-up proceedings
- [2-2880] Procedure
- [2-2890] Ex parte applications
Part 25 of the UCPR contains a number of procedures to preserve rights and property pending the resolution of proceedings so that a successful plaintiff is not deprived of the fruits of his/her victory as a result of the destruction or disposal of the subject matter of the proceedings or by other conduct by, or on behalf of, the defendant or third parties.
Division 1 (rr 25.1–25.9) applies to the Supreme and District Courts, whilst Divs 2 and 3 (rr 25.10–25.24), relating to Freezing (Mareva) and Search (Anton Piller) orders, apply to the Supreme and District Courts and also to the Dust Diseases Tribunal: r 25.1. None of the provisions of Pt 25 apply to the Local Court.
The Supreme Court’s power to grant injunctions, including interlocutory injunctions, is now expressed in SCA s 66.
There is express power for the District Court to grant injunctions (including interlocutory injunctions) in any “action” as defined in s 44 of the DCA: DCA s 46. It has the same powers as the Supreme Court, which would include the power to grant injunctions or to make interim preservation orders, in respect of the matters set out in Pt 3 Div 8 of the DCA (ss 133–142): s 141. It also has a limited power to grant “temporary injunctions” in limited cases (s 140), but in view of the more general jurisdiction conferred by DCA s 46 it would seem unlikely that this power will be exercised in the future. Having regard to the terms of r 25.1, it would appear that the District Court now has power to make other interim preservation orders, as well as injunctions in relation to any proceedings otherwise within its jurisdiction.
Although Pt 25 is expressed in general terms to be applicable to the District Court, the powers can only be exercised in relation to proceedings in respect of which the District Court otherwise has jurisdiction: Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435.
In that case, it was held that the power to grant injunctions in s 46 was ancillary to the exercise of jurisdiction to hear and dispose of the actions specified in s 44, but the majority further held that the injunction granted in that case after judgment was in the nature of an asset preservation order, and was neither an injunction nor an injunction “in an action” for the purposes of s 46, and was accordingly beyond the powers of the District Court. It may be that in view of the terms of Pt 25 rr 25.1, 25.2 and 25.11 the District Court’s power may now not be so limited, provided that the order relates to “an action” within s 44.
The various interim preservation orders, apart from injunctions, which may be made are:
orders for the preservation of property: r 25.3
orders for disposal of perishable or similar property: r 25.4
orders for interim distribution of property or income surplus to the subject matter of the proceedings: rr 25.5–25.6
orders for payment of shares in a fund before the ascertainment of all persons interested: r 25.7
freezing (Mareva) orders: r 25.11. See commentary at [2-4100], or
search (Anton Piller) orders: r 25.19. See commentary at [2-1000].
The Supreme Court also has power to make interim orders for writs of habeas corpus ad subjiciendum, for the custody of a minor, extending the operation of a caveat under the Real Property Act 1900, the Offshore Minerals Act 1999 or the Offshore Minerals Act 1994 (Cth), appointing a receiver (SCA s 67), and under the Fair Trading Act 1987 ss 66–67 (as to which see [2-2840]).
As to an order for payment into court pursuant to r 25.3(3), see Newcastle City Council v Caverstock Group Pty Ltd  NSWCA 249.
In order to obtain an interlocutory injunction (or an order for the preservation of property), the applicant must identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which final relief is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at –, , .
Next the applicant must make out a prima facie case: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622. Reference is often made to the test propounded by Lord Diplock in American Cynamid Co v Ethicon Ltd  AC 396 at 406, namely whether there is a “serious question to be tried”. In practice, there is generally no significant difference between the two formulations of the test, but, so far as there is any difference, the Beecham test is applicable in Australia: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at , –.
Accordingly, in applications for interim relief, the court will not normally attempt to resolve disputed questions of fact or difficult questions of law: American Cynamid Ltd, above, at 407, Beecham Group Ltd, above, at 622.
The applicant for interim relief must also show that the balance of convenience is in favour of granting the relief. Relevant matters on this issue will depend on the nature of the case or the property in dispute, but may include such considerations as whether irreparable harm will be suffered by the plaintiff if the relief is not granted; whether damages will be a sufficient remedy and whether the defendant will be in a position to pay such damages if ordered; whether delay in making the application has or may prejudice the defendant in some way, eg if it would prevent him carrying on a successful established business; whether the interlocutory relief sought would overturn or merely maintain the status quo; and the sufficiency of the plaintiff’s undertaking as to damages.
Finally an applicant for interim relief will usually be required to give the usual undertaking as to damages, the terms of which are set out in UCPR r 25.8; and if the applicant will not be in a position to honour such an undertaking, the application will generally be refused. The Crown is generally required to give the usual undertaking, at least when it seeks to protect a proprietary or private right (Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39), but not necessarily when it seeks an interim injunction in “law enforcement” actions: F Hoffman-La Roche & Co AG v Secretary for Trade & Industry  AC 295. See also ACCC v Giraffe World Australia Pty Ltd (1998) 84 FCR 512.
Often, rather than submit to any interlocutory injunction, a defendant will give an undertaking to the court without admissions not to engage in the conduct sought to be restrained. Such an undertaking has the same force as a injunction and can be enforced in the same way. In return for such an undertaking, an undertaking as to damages will still be required from the applicant.
As from 1 January 2011, following the amendment of the Fair Trading Act 1987 by the Fair Trading Amendment (Australian Consumer Law) Act 2010, the Australian Consumer Law (ACL), which is contained in Sch 2 of the Competition and Consumer Act 2010 (Cth), applies as a law of New South Wales: FTA s 28(1)(a). It is referred to as the Australian Consumer Law (NSW): FTA s 28(1)(b).
Under FTA s 78, the Supreme Court may upon the application of the Minister or Director-General make orders, among other things, for the preservation of money or property in the circumstances set out in the section.
Under FTA s 79, the Supreme Court may grant an injunction in such terms as it determines to be appropriate in the circumstances set out in the section. However, an injunction under this section may be granted only on the application of the Director-General with the consent of the Minister: s 79(2). The injunction may be granted as an interim injunction without an undertaking being required as to damages or costs or may be granted as a permanent injunction: s 79(3).
A broader injunctive power is available to the Supreme Court (see FTA s 30(3)) in the circumstances set out in s 232 of the ACL (NSW). Such an injunction may be granted on application by the regulator (the Director-General) or any other person: s 232(2). A consent injunction may be granted (s 233) and an interim injunction may be made (s 234). As to undertakings as to damages see s 234(2) and (3). The court may vary or discharge an injunction under s 235.
Interlocutory injunctions are rarely granted in defamation cases because of the interference they impose on the right of free speech. They will only be granted in a “very clear case” and usually will not be granted if the defendant intends to rely on the defence of justification (substantial truth relating to a matter of public interest, now substantial truth simpliciter: Defamation Act 2005 s 25): Chappell v TCN Channel Nine Pty Ltd  14 NSWLR 153, and see Australian Broadcasting Corporation v O’Neill, above, at –, –.
The Supreme Court may on terms appoint a receiver at any stage of the proceedings: SCA s 67. The procedure is regulated by UCPR Pt 26, and is only available in the Supreme Court: r 26.1.
Applications are often made at the commencement of or during the course of the proceedings, in which case they are made by notice of motion in the proceedings duly served on the party against whom the order is sought (as to leave to serve short notice, see [2-2890] below). Alternatively in cases commenced by summons, the claim for interim relief may be included as a separate prayer in the summons.
Often it is necessary or appropriate to obtain such interim preservation orders or injunctions as a matter or urgency before the other side is notified, or becomes aware of the proceedings, so as to prevent the subject property or right being lost or damaged before the order is obtained. In such cases the application is made ex parte (as to which see [2-2890]).
Where it is necessary or appropriate to obtain an injunction or other interim preservation order before the other party becomes aware of the application, or in other cases of extreme urgency, the application may be made ex parte. Such applications should be made to the duty judge of the Division or court and are normally dealt with at 10 am, 12.45 am, 2 pm and 3.45 pm if the relevant judge is sitting; otherwise they are dealt with in chambers by appointment after contacting the judge’s associate. At night and at weekends they may, if the judge is agreeable, be dealt with at the judge’s home or elsewhere, and if the relevant duty judge is unavailable, any judge may deal with the application; but normally will not do so unless extreme urgency is shown.
As a matter of practice, and as a protection against false accusations, applications by litigants in person should not be dealt with in chambers or elsewhere, but only in open court with a court reporter present recording everything said.
Rule 25.2 provides that in an urgent case, on the application of a person who intends to commence proceedings, the court may:
make any order which it might make in proceedings on an application for a writ of habeas corpus ad subjuiciendum
make any order for the custody of a minor
grant any injunctive relief including relief in the nature of a freezing (Mareva) order or a search (Anton Piller) order
extending the operation of a caveat under the Real Property Act 1900, the Offshore Minerals Act 1999 or the Offshore Minerals Act 1994 (Cth)
appoint a receiver, or
make an order for the detention, custody or preservation of property under r 25.3,
but in such cases the applicant must give an undertaking to the court that he/she will file originating process within such time as the court may order, or if the court makes no such order, within 48 hours after the application is granted.
Applicants for ex parte relief should provide the judge with a draft statement of claim and notice of motion or summons, and affidavit evidence of the facts relied on, which may be on information and belief, provided the deponent identifies his/her source: Evidence Act 1995 s 75. Although where time does not permit, the judge may act without draft originating process and may receive oral evidence, or even (rarely) act on instructions conveyed by counsel or solicitor.
An applicant must disclose all matters which may affect his or her right to the interlocutory order. In Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681–2, Isaacs J said:
“[I]t is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required …”
See also Garrard t/as Arthur Anderson & Co v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 676–677. The failure to make full disclosure will result in the injunction being dissolved, but does not prevent the making of a fresh application with full disclosure.
An ex parte order should only be made for a short interim period, for example two days or less, and the time for service of the originating process shortened, so that on the return day the defendant has notice of the proceedings and the right to be heard. On that day the plaintiff bears the onus of establishing a right to continuation of the injunction or other interim relief.
If the judge is not satisfied of the applicant’s right to ex parte relief, or the applicant does not seek ex parte relief but merely wishes to bring the other party before the court as a matter or urgency so that the application can be made on notice, the judge will normally grant the applicant leave to serve short notice of application.
When considering an application late in the day, the judge should make arrangements with his or her associate to advise the Registry to remain open to deal with any orders which may be made.
At times application is made to the Supreme Court for an injunction to restrain execution by the Sheriff of a writ of possession. Such an application is not strictly an application for an injunction but for a stay of execution and should be dealt with on such basis.
Supreme Court Act 1970 ss 66, 67
District Court Act 1973 ss 44, 46, 133–142
Defamation Act 2005 s 25
Real Property Act 1990 s 74K
Offshore Minerals Act 1999
Offshore Minerals Act 1994 (Cth)
Fair Trading Act 1987, Pt 6, s 79
Competition and Consumer Act 2010 (Cth) Sch 2; Australian Consumer Law (NSW) Ch 5, ss 232-235
UCPR rr 25.1–25.19, 26