The following are some practical tips for making an injunction application. This is not an analysis of the substantive or procedural law.
Before you prepare the application
Before advising a client to apply for an injunction it is worth asking yourself:
Is the application likely to succeed?
It sounds obvious, but in the heat of the moment it can be missed. You will need to consider issues such as:
- does the Court have the jurisdiction and power to make the order? In the Supreme and Federal Courts this will usually be clear. But check all the same;
- is there an identified cause of action;
- is there a prima facie case;
- would damages be an adequate remedy; and
- where will the balance of convenience lie (what impact will the order have both on the defendant and third parties)?
What are the risks or downsides?
What risks or downsides will the client face in the future as a result of bringing the application (even if it succeeds)? For instance you will likely need to put your key witness/es on oath very early in the proceedings, before the issues have been distilled in the pleading process. The account of those witnesses is in a practical sense locked in. A departure from that account can have devastating consequences in cross examination at trial.
Applying ex parte
If you have decided to advise a client to apply for an injunction, you should immediately consider whether to apply ex parte. An application made ex parte is always an extraordinary step. You will be called upon to justify it.
Both you and your client will be obliged to give full and frank disclosure to the Court. Legal practitioners must ensure that they fully advise their clients about what is required of them, and also the risks of non-disclosure. That explanation should be given in conference and confirmed in writing.
In contrast, if you apply on notice, even on very short notice, you and your client will be unshackled from that onerous disclosure obligation.
Undertaking as to damages
Regardless of whether your client is applying ex parte or on notice, an undertaking as to damages will be required. Again you need to carefully explain this to your client in conference and confirm it in writing. The client needs to understand that third parties may come forward with unanticipated claims and that damages on an undertaking are uncapped.
Preparing the application
If time permits it will be useful to draft the statement of claim. Even if only a rough outline is prepared, and it is not filed, it will be a useful exercise. It will focus minds on what the plaintiff must prove at trial. If time does not permit an attempt at drafting the statement of claim, consideration should still be given to the cause/s of action and the final relief to be sought in the action. Such considerations are crucial, lest the parties, their lawyers and the courts be left in the embarrassing situation of having an injunction granted where there is no underlying cause of action; as occurred in ABC v Lenah Game Meats Pty Ltd. (((2001) 208 CLR 199.))
I find it most efficient to frame the injunction I want before embarking on the exercise of drafting the affidavits. If you want a freezing order (Mareva injunction) you will need certain evidence that you would not need if you were applying to continue a caveat. Similarly if you are applying for a search order (Anton Piller order) the evidence you need will depend, at least in part, on the orders you are seeking. For instance if you want an order that the defendant allow his or her computers to be searched you will need evidence about who your independent IT expert will be, and their qualifications.
The next question will probably be who needs to give evidence in support of the application? All other things being equal, I tend to favour fewer affidavits. Hearsay statements of belief are admissible and it may make the judge’s task of assessing the evidence simpler if there is one substantive affidavit. It should also be quicker to draft. However there is a judgment to be exercised here. If critical evidence can only come from one witness who personally saw/heard/did something, the application will be stronger if that person goes directly on affidavit. Counsel’s written outline of submissions will tie the affidavits together.
Structure of Affidavits
Affidavits should be structured for ease of use by the Judge. The Judge may have a limited time in which to read the affidavits before the hearing. Headings will assist; particularly if they are framed so as to be easily referable to particular orders. So too will dealing with events in chronological order.
If substantial documents are to be attached to the affidavit, provide sign posts to the relevant pages and paragraphs or clauses. Although you would not do it on a routine application, it can be helpful to quote the key paragraph of an attachment in the body of the affidavit.
No matter how urgent the application, get the basics right. Make sure the affidavit is paginated and properly indexed. If the Judge forms the view that the plaintiff’s solicitors cannot compile an affidavit he or she is less likely to have confidence that the application is well considered and that the orders are justified by the evidence.
On an ex parte application, it has been my experience that the Court’s confidence can be garnered by including in the primary affidavit a section on disclosure. If there is no ‘adverse’ material that is being disclosed a sentence can be included at the end of the submissions along the lines of “The plaintiff is not aware of any material adverse to the present application and has made full and frank disclosure of all the surrounding circumstances and material.” Remember disclosure extends beyond the strength of the plaintiff’s case. A plaintiff should also disclose any fact that might make it difficult for a defendant to rely on the undertaking as to damages. For instance where the plaintiff is impecunious or based outside the jurisdiction. Anything that is to be disclosed should be put up in flashing lights, not buried in a lengthy attachment to an affidavit.
If you are seeking an urgent hearing, make telephone contact with listings as early as possible. You will in all likelihood be told to come down when all the papers are ready. But if all, or most, of the Judges are going to be on a conference in 2 days time it is worth finding out about it earlier rather than later.
I suggest a solicitor attend to personally file an urgent injunction application. It should not be left to a clerk. When filing the application I suggest providing the Court with a covering letter that summarises the urgency by reference to the relevant paragraphs of the affidavits. This letter is no substitute for a certificate of urgency, but adds weight to the certificate. The cover letter should also provide a list of all the material filed, for the aid of the associate to the presiding Judge. Ensure the letter includes the mobile telephone number for the solicitor responsible for the matter. And if you get a call on that mobile – particularly from a blocked number – make sure you answer it. Also, tell your receptionist and secretary that an important call from the Court may come through. Make it clear that they are to interrupt you no matter what you are doing, or who you are with, if such a call comes through.
Contact with the Court
Once a Judge has been allocated to hear the matter, telephone contact with the associate is well worthwhile. Your aim is to find out if there is anything you can do to make their job and, by extension, the Judge’s job easier. You will in all likelihood have been living the matter for the last few days. The same is not so for the Court and its staff.
There can often be a short wait between filing your application and getting on before the Judge. Think about what the application really turns on. Decide how you will present the application. Your aim being to make a powerful and honest submission in the shortest amount of time.
Preparing for implementation of the order
If after that you still have some more free time use it to think about what you will need to do to implement the order if it is made. For instance, if the injunction needs to be served on third parties have cover letters ready to go. If an order needs to be registered on title or with ASIC consider the relevant requirements.
Even if you are successful, as often as not the Judge will decide to make the orders in slightly different terms to those you sought. If the matter is urgent you should have a draft order ready for extraction before you go to Court for the hearing. This is in addition to any minute of orders. If you email the draft order to the associate in Word format you will greatly increase the prospect of the Judge signing and sealing the order in the Courtroom at the conclusion of the hearing (assuming you are successful)! If you have made their life easy, and ask nicely, most associates will oblige and make minor edits to the draft order at the conclusion of the hearing.
Service of the injunction
The last step in the process is service of the injunction. In my experience it is worth informing the defendant:
- That if the injunction is likely to cause them loss, they should advise you;
- That your client is open to considering variations of the injunction which might minimise any loss to them; and
- They have an obligation to mitigate any loss.
The above can all be handy if in the unfortunate event, usually many years later, your client is called upon to pay damages on its undertaking.
The real battle
If you applied ex parte, you will likely now need to prepare to justify the continuation of your injunction inter partes.
If you applied inter partes it is probably time to turn attention to pleadings, discovery and perhaps mediation.