Injunctions are orders made by the courts either restraining or requiring performance of a specific act in order to give effect to the legal rights of the applicant. An injunction that prevents a course of action is said to be prohibitive in nature, and this is the traditional essence of injunctive relief - it commands cessation of a wrongful act. Somewhat rarer, yet not too distant from this core principle, are mandatory injunctions that compel some behavior of the person to whom they are directed. In cases where mandatory injunctions are granted it is clear that the defendant, while not positively engaged in wrongful conduct, has nevertheless, by a failure or omission to act, infringed upon the rights of the applicant. In commanding the doing of an act by such a defendant, the court is in effect commanding the harmful dormancy to cease.
Jurisdiction
The origins of injunctive relief are found in equity’s exclusive jurisdiction where it was used solely in support of equitable rights. But equity soon developed an auxiliary jurisdiction through which it offered more flexible forms of relief when those of the common law proved to be inadequate. Thus, in particular circumstances, injunctive relief is available to restrain breaches of contract, tortious wrongs and an array of other conduct that infringe upon rights recognised by the common law. In addition to the exclusive and auxiliary jurisdictions of equity to order injunctions, the common law courts were granted the ability to do the same through statutory reform enacted in the Common Law Procedure Act 1854 (UK) which provided a distinct jurisdiction from both the exclusive and auxiliary operations of equity. It was narrower than the exclusive jurisdiction in that it did not enable the common law courts to issue injunctions in respect of equitable rights, nor did it enable the making of quia timet injunctions. At the same time, it was seen as wider than equity’s auxiliary jurisdiction as there was no requirement of either a proprietary interest or inadequacy of damages
Exclusive
Injunctions granted in aid of equitable rights (such as the equitable obligation of confidence or a beneficiary’s rights under a trust) are said to be awarded in equity’s exclusive jurisdiction.
Auxiliary
Injunctions granted in aid of common law rights (such as the restraint of breaches of contract or tortious wrongs) or statutory rights are said to be awarded in equity’s auxiliary jurisdiction. The distinction is important because with injunctions in the auxiliary jurisdiction, a plaintiff must first establish that damages at common law are an inadequate remedy, and secondly, it may be the case in some situations that he or she must also show that the right being protected is a proprietary right.
Why does it matter?
The distinction is important because with injunctions in the auxiliary jurisdiction, a plaintiff must first establish that damages at common law are an inadequate remedy, and secondly, it may be the case in some situations that he or she must also show that the right being protected is a proprietary right.
However, in the exclusive jurisdiction, neither the inadequacy of damages nor the proprietary in nature of the plaintiff’s right are relevant in assessing whether the injunction should be granted.
Injunctions Protect Rights
Injunctive relief will not be ordered if there has been no violation of the plaintiff’s rights: North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30
Inadequacy of damages
Graham v K D Morris & Sons Pty Ltd [1974] Qd R 1, Morris was building a significant construction on adjoining land owned by Graham. A crane on the building site was left to rotate freely and, when the wind blew in a certain direction, its jib encroached over Graham’s property and was suspended over the roof of her house. Campbell J held that the invasion of Graham’s airspace constituted a trespass and that damages at common law were inadequate because the danger of the jib suspended over Graham’s house were very real and would last for 18 months until the construction work was completed. The trespass would also negatively impact on the sale price Graham could get if she wished to sell her home during that time. Morris argued that the grant of the injunction would constitute hardship because it would have to dismantle the crane at considerable expense. His Honour rejected this defence on the basis that the positioning of the crane stemmed from Morris’s negligence and its cavalier attitude towards the building project.
The requirement of a proprietary right
In Attorney-General v Sheffield Gas Consumers Co (1853) 43 ER 119, at 125, Turner LJ, in refusing to grant an injunction, said that ‘[i]t is on the ground of injury to property that the injunction of this court must rest’.
However, in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, at 395; 162 ALR 294, at 304, the High Court held that there is no general requirement that the right must be proprietary before injunctive relief can be granted.
Most commentators now agree that the availability of injunctive relief in equity’s auxiliary jurisdiction is not limited to the protection of legal rights that are proprietary in nature. A more accurate statement as to the relevance of the proprietary nature of the right in question is given by Spry when he writes as follows.
Although it is incorrect to assert that an injunction can be obtained only in aid of property or in aid of a proprietary right, there are cases where in the particular circumstances the only possible reason for equitable intervention happens to lie in the support of what may be described as a proprietary right.
Types of Injunctions
- Prohibitive or mandatory?
- Interlocutory or perpetual injunctions?
Mandatory injunctions
Two kinds
Mandatory restorative injunction
Mandatory restorative injunction which compels the defendant to repair the consequences of some wrongful act that he or she has committed. In order to obtain such an injunction, the plaintiff must show that, where the wrongful act had not occurred but was merely threatened, he or she would have obtained a prohibitory injunction in relation to the apprehended wrong. For example, in a situation where a house has been built in contravention of statutory planning approval requirements, a mandatory restorative injunction will be granted requiring the defendant to demolish it, provided that, before the house was built, the plaintiff can establish that he or she would have obtained a prohibitory injunction preventing the defendant from building it.
Mandatory enforcing injunctions
Mandatory injunction is the mandatory enforcing injunction which compels the defendant to do some positive act that he or she has promised to do for valuable consideration. In such cases the court will need to be satisfied that the agreement is specifically enforceable and that, in all the circumstances, it is just and equitable to grant the injunction
Perpetual injunctions
Injunctions can also be classified according to the period of time for which the order is to remain in force. A perpetual injunction is the injunction granted after a full hearing of the claim on its merits. Because the merits of the case have been argued, the perpetual injunction is intended to finally settle relations between the parties.
Interlocutory injunctions
An interlocutory injunction is a provisional order made at an earlier stage in the proceedings before the court has had the opportunity to assess the merits of the application.
Generally, interlocutory injunctions are expressed to be in force until the trial of the action or further order of the court. The term ‘interim injunction’ is often used interchangeably with interlocutory injunction. However, there is a technical difference between the two, in that an interim injunction is more temporary than an interlocutory injunction, and is usually expressed to remain in force until a specified date prior to the final hearing.
In general, interlocutory injunctions will only be granted after notice of the application has been given to the defendant, so that the defendant has the opportunity to resist the claim.
Undertaking as to damages
A usual condition of granting an interlocutory injunction is that the plaintiff must give an undertaking as to damages. The undertaking operates as a protection to the defendant should the court later rule that the interlocutory injunction should not have been granted. The undertaking binds the plaintiff to compensate the defendant for any damage suffered by the defendant on account of the granting of the interlocutory injunction. If the plaintiff refuses to give the undertaking, the interlocutory injunction will be refused.
QUIA TIMET INJUNCTIONS
Generally, injunctive relief relates to some infringement or alleged infringement of the plaintiff’s rights. However, inunctions can be granted in relation to circumstances where there has not yet been an infringement of rights. Injunctions granted on the basis that there is a threat that the plaintiff’s rights will be infringed are known as quia timet injunctions. The expression ‘qui timet’ means ‘since he fears’. The essential purpose of a quia timet injunction is to prevent a wrong being committed.
Lord Upjohn observed that a quia timet injunction arises in the following two types of case:
- where, as yet, no harm to the defendant has occurred but it is threatened or intended, and
- where harm has been done by the earlier actions of the defendant, and the plaintiff has been compensated, but the plaintiff fears that future wrongs may be committed by the defendant
Injunctions to Enforce Negative Stipulations
Generally, the equitable enforcement of contractual rights is by means of an order for specific performance which requires the defendant to carry out his or her contractual obligation. This is the order that is usually sought in relation to positive contractual obligations. However, where there is a negative contractual obligation, the injunction is the usual equitable relief that is sought. A negative contractual obligation is one where inactivity on the part of the promisor is the essence of the obligation. Negative contractual obligations can be express or implied. The classical illustration of an enforceable negative contractual obligation is a reasonable restraint of trade.
An important illustration of injunctive relief being sought to enforce negative contractual obligations is with restraints of trade in the context of personal service contracts.
Injunctions to enforce statutory rights
Where there has been a breach of statute, there are a number of possibilities in so far as obtaining an injunction is concerned. First, the legislation may expressly or impliedly exclude any remedy other than those which it expressly provides for, thereby excluding the remedy of an injunction.
A second possibility is that the statute directly confers upon a person or category of persons the right of enforcement. This often occurs in the context of local government legislation.
In exercising its discretion to grant relief, a court will grant an injunction only if the breach of statute also amounts to an infringement of public rights.
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