Protecting a Party’s Position by Injunction to Prevent Irreparable Harm


Protection of a party’s position by injunction until a final hearing in court proceedings can sometimes be necessary to prevent irreparable harm which may occur prior to determination of the dispute at trial.

The Supreme Court of Western Australia has power to grant an injunction for the purpose of keeping matters in status quo until the parties’ rights are determined at trial. Injunctions can take different forms, but at an early stage of the proceedings they are orders usually obtained to prevent the other party doing something until the matter is finally determined or until further order of the Court.  They can also be in a mandatory form, providing an obligation to the other party to do something, such as ordering a landlord to permit the re-entry of a tenant into premises where they have been locked out.

Given the nature of an injunction application, and the need to quickly protect the position of a party to a dispute, usually they are of a very urgent nature and an application could even be heard within a day or 2 of the application being filed. Sometimes the other party will not even have had a chance to file detailed documents or any documents in response to it.

Case Law

The case law about injunctions obliging the party applying for an injunction to identify the rights to be determined at trial in respect of which final orders are sought and show that:

  • there is a serious question to be determined at trial or that the applicant has made out a prima facie case such that at trial there is a probability that they will be entitled to final orders;
  • they will suffer irreparable injury unless an injunction is granted; and
  • that the balance of convenience favours the granting of an injunction.

In this context, the weaker the applicant’s case, the more the balance of convenience moves against the making of orders for injunction.

For the Court to consider the granting of an injunction, it must know the nature of the claim and have sufficient evidence on affidavit in support of the claim and need for injunction. Once the facts are considered, the court may determine whether there is a serious question to be tried and weigh up the balance of convenience in the circumstances.  This is a process of comparing circumstances for and against the grant of injunction orders.

For example:
  • if a tenant were permitted back into occupation of premises they had been locked out from, and continued to pay rent, any dispute to be determined about breach of the lease could occur later without serious consequence to the landlord.  On the other hand, if the tenant did not obtain an injunction requiring the landlord to permit their continued occupation, their reputation or entire business may be jeopardised or irreparably damaged.  In such case the balance of convenience would favour the tenant obtaining a mandatory injunction to permit their occupation;
  • injuncting the publication or further publication of photographs illegally obtained or a story containing defamatory material will prevent irreparable harm to the person the material is about;
  • if a member of an organisation were to seek to stop the holding of an annual general meeting due to circumstances which they claimed prevented them from attending to vote or be elected at the meeting arising from the association’s actions, the balance of convenience may well be against the granting of an injunction to restrain the holding of that meeting for the benefit of that 1 member when hundreds may be inconvenienced or affected by that injunction.

While such a remedy is available, and in the right circumstances can be a very important form of application and protection available to a party to a dispute, the cost of such applications are considerable with an enormous amount of legal work becoming necessary in a very short space of time.

Recommendation

Attempting to resolve that dispute before the consequences become so dire is always a better option where possible. In that sense, prevention is far better and far more cost effective than the cure, particularly as that cure may only be temporary and could result in significant costs incurred and costs orders for or against a party to such applications.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.