Wednesday, 19 November 2014

[Remedies] Interlocutory Injunctions- Template

Interlocutory Injunctions


The general principles governing injunctions also apply to interlocutory injunctions; that is, the remedy must enforce a legal or an equitable cause of action (Cardile v LED; ABC v Lenah Game Meats) and it can only be granted in the court’s direction. However, the court must also address two main inquiries laid down by the High Court in Beecham v Bristol and endorsed in ABC v O’Neill: the first is whether plaintiff has made out a prima facie case...and second is whether the balance of convenience favours an order of injunction.

1          Standing (legal or an equitable cause of action)

            1.1A   Injunction cannot be ordered without an underlying cause of action (ABC v Lenah Game Meats). 

            1.1B    Injunction cannot be ordered without an underlying cause of action. Here, there is a breach of public right and therefore, would require Attorney General’s fiat or alternatively they must have a special interest in the subject matter (Boyce v Paddington Borough Council).
2          Serious Question to be Tried; ‘Prima facie case’ test
            2.1      The plaintiff must show a ‘sufficient likelihood of success...’ (O’Neill per Gummow and Hayne JJ). 
3          Inadequate damages

            3.1A    Common law remedies are inadequate in this case because: [state relevant facts and reasons.]  

            3.1B     The facts indicate that the P will suffer a irreparable harm, detriment or damage if the interlocutory injunction is refused. If such harm will result, this shows that common law damages will be inadequate (*no need to consider 4 Balance of convenience).

4          Balance of convenience

            4.1      Here the plaintiff must show that the inconvenience which P will suffer would outweigh the inconvenience which D will suffer by not granting the injunction (American Cyanamid; Beecham). 

            4.2      Range of factors that can be considered include but not limited strength of plaintiff’s case, hardship to either party, effect on third party and risk of irreparable damage (Active Leisure).

5          Usual Undertaking

            5.1       A, as an applicant, must pay to respondent, B, any loss sustained by him caused by the imposition of injunction if after the full hearing, the injunction ought not to have been granted.      
            5.2      The respondent may claim a more substantial loss if it could have invested that money and made a large sum but such intention must be communicated at the time when undertaking as to damages is provided (Robb Evans and Associates v European Bank).

6          Discretionary factors
v  Contract for personal services

The Court is ‘reluctant’ (C H Giles v Morris per Meggary J) to order specific performance of contracts for personal services because it would involve the court’s constant supervision and might compel unwilling parties to maintain personal cooperative relations (J C Williamson).

7          Lord Cairns Act damages

7.1       It is likely that A will not be able to get an injunction on the basis of [discretionary factor]. However, it may apply to the court for Lord Cairns’ Act damages in lieu of injunction which is reflected in section 62 of Equity Act 1867 (Qld). In Holland v Goltrans, when the Court found that specific performance was impossible (discretionary factor), the plaintiff was awarded with the proceeds of the sale of property and a windfall, by tracing it. The court held that the plaintiff had the proprietary claim in relation to those sums. Therefore, the case did not actually involve the application of Lord Cairns Act damages. However, if there was no proprietary claim as the court found, then there could have been a Lord Cairns Act damages in substitution for specific performance.

7.2       [Measure of damages] Equitable damages are measured exactly the same as common law but it is important to note that the wording of s 62, specifically the phrase ‘assessed in such manner as the court shall direct’, provides the court with broad discretion (illustrated in Wroth v Tyler where the court took account into consideration the appreciation of land value when assessing damages).

7.3       [Defendant’s gains] The court may also look at defendant’s gains from breach, which is no doubt a highly unusual and unorthodox measure of damages (Wrothham Park).

7.4       [Waiver] In Jaggard v Sawyer, injunction was not granted since breach already took place (therefore making injunction futile). Therefore, the court sought to provide equitable damages and in doing so, the court held that equitable damages in substitution of an injunction are measured by how much it would have cost D to buy P’s waiver of restrictive covenant.  

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