An injunction is an order requiring a person to do something, or to stop doing something. In the National Court it is most often sought urgently, to hold a position until the dispute can be tried.
The sources
Constitution section 166(1) — the National Court is a court of unlimited jurisdiction.
Constitution section 155(4) — the Court has power to make orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
National Court Rules 1983, Order 14 Rule 9 — the power to grant an injunction before proceedings are commenced.
The Rules do not create the power to grant injunctions; they assume it and provide the machinery. That is why applications are commonly framed by reference to both the relevant rule and section 155(4).
Remember Rule 8 of the Motions (Amendment) Rules 2005: a notice of motion must contain a concise reference to the Court’s jurisdiction to grant the order sought. On an injunction application, say what that jurisdiction is.
Order 14 Rule 9
In an urgent case, the Court may, on the application of a person who intends to commence proceedings —
(a) grant an injunction; or
(b) make any order it might make in proceedings in the nature of an application for habeas corpus ad subjiciendum; or
(c) make orders for the custody of minors; or
(d) appoint a receiver,
to the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings.
The case must be urgent. Rule 9 is not a convenience for a plaintiff who has not got round to filing.
The applicant must intend to commence proceedings. In practice the Court will require an undertaking to file the originating process promptly — commonly within a day or two — and will make the injunction conditional on it.
Note that paragraph (b) is a distinct route from Order 17, and paragraph (c) sits alongside the Family Court's jurisdiction over children under the Lukautim Pikinini Act 2015.
What to file
- The originating process — a writ or originating summons claiming the injunction as final relief. Under Order 4 Rule 2(3)(b), the requirement to use a writ does not apply to a person who desires to apply for an immediate injunction. Under Rule 9 this may follow rather than precede the application.
- A notice of motion setting out precisely the orders sought, with the jurisdiction stated.
- An affidavit proving the facts — the right, the threatened conduct, the urgency, and the harm.
- A draft order, in the exact terms sought.
- An undertaking as to damages, ordinarily required as the price of interim relief.
An injunction is enforceable by committal for contempt. It must therefore be clear enough that the person restrained knows exactly what they may and may not do.
Avoid formulations such as “the defendant be restrained from interfering with the plaintiff’s business”. Identify the acts, the property, the land by its description on title, and the period. Say when the order expires or when it returns to Court.
Order 6 Rule 17 — a relaxed rule
Where the Court grants an interlocutory injunction, the party may serve notice of the injunction, if desired, by telegram or letter signed by or on behalf of the Registrar.
An injunction is useless if the person restrained does not know of it. Rule 17 dispenses with the ordinary requirements of service so that notice can be given at once.
But for enforcement by committal, prove that the person had notice or knowledge of the order. Serve the sealed order personally as well, as soon as practicable, and keep evidence of both.
The range of interim relief
| Order | Provision |
|---|---|
| Interlocutory injunction — prohibitory or mandatory | O 14 r 9; Constitution s 155(4) |
| Detention, custody or preservation of property | O 14 r 10 |
| Order that a fund be paid into Court or otherwise secured | O 14 r 10(3) |
| Sale of perishable or deteriorating property | O 14 r 11 |
| Appointment of a receiver | O 14 r 9(d), Div 3 |
| Freezing assets | Constitution s 155(4) |
| Stay of proceedings | Various, incl. O 12 r 1 |
| Inspection of property | O 9 r 44 |
The Court may make orders under this Division on terms and at any stage of the proceedings.
And Rule 15 — where a party in a writ action applies under Rule 10 or 11, the Court may order that the proceedings be before the Court for directions, immediately or on a date it appoints. Interim relief and case management are dealt with together.
Having identified the right procedure, the application will be decided on the familiar principles — a serious question to be tried, the balance of convenience, and whether damages would be an adequate remedy. See what you must prove, and on urgent applications made without notice, applying ex parte.
Sources
- National Court Rules 1983 — O 4 rr 2, 38; O 6 r 17; O 9 r 44; O 12 r 1; O 14 rr 9–16, Div 3; O 17; Motions (Amendment) Rules 2005 r 8
- Constitution — ss 155(4), 166
- Lukautim Pikinini Act 2015
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.