Can a Defendant Contest an Injunction in Australia?

Injunctions are powerful legal remedies designed to prevent harm, preserve rights, or compel actions. However, they are not immune to challenges. In Australia, a defendant has the right to contest an injunction, both at the time it is sought and after it has been granted. Whether at the initial hearing or during post-grant proceedings, defendants can argue against an injunction by relying on legal principles, procedural grounds, and evidentiary challenges.

Challenging an Injunction During Initial Proceedings

When an applicant first seeks an injunction, particularly an interlocutory injunction, the defendant has an opportunity to present their case to the court. The defendant can submit evidence and legal arguments to demonstrate that the injunction should not be granted.

Courts will typically consider factors such as:

• past conduct of the defendant (including any prior breaches);
• likelihood of future misconduct or recurrence of harmful actions; and/or
• imminence and seriousness of potential harm or damage to the applicant.

The court aims to weigh these elements against the standard legal test for injunctions: whether there is a serious question to be tried, whether damages would be an adequate remedy, and whether the balance of convenience supports granting the order.

Post-Grant Challenges: Varying, Discharging, or Appealing an Injunction

Even after an injunction has been granted, it remains subject to further judicial review. In this regard, a defendant may:

• Appeal the injunction to a higher court.
• Apply to vary or dissolve the injunction based on new developments, evidence or a change of circumstances.

Further, a defendant can seek to overturn the injunction on procedural fairness grounds.

Evidence Requirements

To successfully challenge an injunction, either at the outset or later, a defendant must address both evidentiary and legal criteria.

A defendant’s evidence should focus on:

• Lack of intent to engage in the prohibited conduct
• Absence of prior wrongdoing or any breaches
• Arguments showing that any potential damage is speculative or not substantial.

Documentary evidence, affidavits, and correspondence may be used to demonstrate compliance or to rebut the applicant’s claims.

Legal Arguments

Defendants may raise several essential legal arguments, such as:

• Procedural unfairness, such as a lack of notice or opportunity to respond
• Insufficient evidence supporting the injunction
• The disproportionate impact the injunction may have on the defendant, such as interfering with business operations or personal freedoms

Damages as an Alternative

One avenue available to the court is to award damages instead of, or in addition to, an injunction. This option is often considered when:

• The harm can be quantified in monetary terms
• The injunctive relief would be overly burdensome or disproportionate
• A financial remedy would suffice

This approach allows courts to strike a balance between protecting the applicant’s rights and preventing undue hardship to the defendant.

Key Considerations for Defendants

1. Undertakings and Security

Applicants for injunctions are often required to give an undertaking as to damages. The strength of the undertaking, and whether it is backed by financial security, can influence the court’s decision to maintain or lift an injunction.

2. Jurisdictional Complexity

When injunctions touch on matters outside the court’s primary jurisdiction, or involve foreign parties or parallel litigation, courts exercise restraint to avoid overreach.

3. Timing and Urgency

Time is of the essence. Courts will evaluate the urgency of the matter, potential for irreparable harm, and whether the defendant acted promptly in opposing or challenging the injunction.

If you have any questions, feel free to contact Damin Murdock at Leo Lawyers via our website, on (02) 8201 0051 or at office@leolawyers.com.au. Further, if you liked this article, please subscribe to our newsletter via our Website, and subscribe to our YouTube, LinkedIn, Facebook and Instagram. If you liked this article or video, please also give us a favourable Google Review.

DISCLAIMER: This is not legal advice and is general information only. You should not rely upon the information contained in this article, and if you require specific legal advice, please contact us.