Courts in Australia may be mostly closed, but they are still available to provide emergency injunctive relief, says Chris Brodrick, a partner at Holding Redlich in Melbourne. 

Writing in a client alert, Brodrick notes that injunctions may be critical in a number of different circumstances.

“Times of wide-spread financial stress can increase the chance that decision-making by your commercial counterparties may be more inwardly focused, lacking consideration for your commercial interests and legal rights,” Brodrick writes. “This may lead to a requirement to bring or defend legal action urgently to protect your own interests by seeking orders for immediate injunctive relief.”

Brodrick says that emergency injunctions might be obtained in any of the following situations: 

• To prevent your supplier suddenly diverting supply elsewhere in breach of a supply agreement;

• To prevent a party illegally attempting to terminate a contract;

• To prevent a counterparty taking precipitous action against your assets; or

• To stop a third party making illegal use of your intellectual property.

In considering whether to grant an injunction, Brodrick says the court will consider:

• Is there a legitimate and serious legal question to determine?

• Will an order for damages be sufficient to cure any wrongdoing?

• Who is the most inconvenienced party if an injunction isn’t granted?

• Does the party seeking the injunction have the capacity to give an undertaking to pay the other party’s damages if they’re ultimately found to be in the wrong?

“Limits on the size of indoor gatherings and the trend towards social distancing present a unique challenge for courts,” Brodrick says. “But they are quickly adapting. Contested applications, including injunctions, may proceed by phone and video. Traditional, in person hearings may still be able to be accommodated provided they proceed with limited numbers of persons present in court and that those who are present are seated at the requisite distance from one another. In any event, courts will remain the key to protecting legitimate commercial enterprise in uncertain times.”

Gregory Glass