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.
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
they will suffer irreparable injury unless an injunction is
that the balance of convenience favours the granting of an
In this context, the weaker the applicant's case, the more
the balance of convenience moves against the making of orders for
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.
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
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
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.
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 content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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