An interim injunction is granted before anyone has proved anything. The Court is being asked to act on incomplete material, so it applies a structured test rather than deciding the merits.
The four questions
- Is there a serious question to be tried? Not whether you will win — whether the claim is genuine and arguable.
- Would damages be an adequate remedy? If money at trial would put you right, an injunction is usually unnecessary.
- Where does the balance of convenience lie? Which course carries the lesser risk of injustice if it turns out to be wrong?
- Are there discretionary factors? Delay, conduct, the practicality of the order, and the applicant’s undertaking as to damages.
In Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309, the National Court considered the principles governing the grant and the continuation of an interlocutory injunction. The plaintiff had obtained orders ex parte and sought to continue them. The Court was not satisfied that a serious question of law or fact had been raised, found that the balance of convenience did not favour continuing the orders, and treated the applicant’s failure to disclose all relevant facts as telling decisively against continuity.
Three lessons follow from that reasoning, and they recur: the serious-question threshold is a real one; the balance of convenience is assessed on the evidence actually before the Court; and non-disclosure can defeat an application that might otherwise have succeeded.
The first question
The applicant must show that the claim is not frivolous or vexatious — that there is a real issue of law or fact for trial.
What this does not require is proof on the balance of probabilities. The Court is not conducting a trial on affidavits.
What it does require is a properly identified cause of action. An applicant who cannot say what right is being infringed, or who has no standing, fails at this stage.
The statement of claim or originating summons must claim the injunction as relief. Where the application is made under Order 14 Rule 9 before commencement, the Court will want to see the draft and an undertaking to file it at once.
The second question
| Damages usually adequate | Damages usually inadequate |
|---|---|
| An ordinary debt or contract price | Threatened destruction of land or unique property |
| Loss readily calculated in money | Customary land and interests in it — but note these belong before the Local Land Court |
| A solvent defendant able to pay | A defendant who could not pay a judgment |
| A one-off transaction | Environmental harm, or damage that cannot be undone |
| Loss of goodwill, confidence or reputation | |
| Breach of confidence — once disclosed, the information is gone |
The Court asks not only whether damages would compensate you if the injunction is refused, but whether your undertaking as to damages would compensate the defendant if the injunction is granted and you later lose.
An applicant of doubtful means asking to restrain a substantial business faces a real difficulty on this limb — which is why the Court may require the undertaking to be supported by security.
The third question
The comparative harm. What each side loses if the order is made, or refused, and later shown to be wrong.
Preserving the position. The purpose of interim relief is to hold matters until trial. An order that would give the applicant, in substance, everything they seek at trial requires a stronger case.
Whether harm is reversible. Work that can be stopped and resumed weighs differently from a building demolished or a river polluted.
Third parties and the public. Employees, contractors, landowners, and the wider public interest in a project or a service.
Delay. An applicant who has known of the threatened conduct for months and does nothing undermines their own claim of urgency.
The status quo. Where the balance is otherwise even, the Court leans toward preserving the existing position.
The duty on an ex parte application
Where an injunction is sought without notice, the Court hears one side only. The applicant is therefore under an obligation to disclose all relevant facts and information — including matters that tell against the application.
Golobadana states the consequence directly in its catchwords: a failure to disclose all relevant facts or information may result in the lifting of an injunction, or a refusal to continue injunctive orders obtained ex parte.
So disclose the defendant’s known answer, any earlier proceedings, any delay on your part, any relevant correspondence, and any weakness in your title or standing. It is far better to confront a difficulty yourself than to have the other side reveal it on the return date.
The obligation reflects Constitution section 59, under which the minimum requirement of natural justice is to act fairly and be seen to act fairly.
Proving it
Everything above must be established on affidavit. Depose to facts from your own knowledge; where you rely on information from others, say so and give the source. Exhibit the documents — the contract, the title, the correspondence, the photographs.
Address each limb of the test expressly, and deal with the undertaking. An affidavit that asserts urgency and harm without evidence is the commonest reason interim applications fail.
If the order is granted and later shown to have been wrongly obtained, expect it to be discharged on the return date and expect costs to follow. On challenging or varying an order once made, see setting aside an interlocutory order.
Sources
- Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309
- National Court Rules 1983 — O 4 rr 2, 38; O 6 r 17; O 14 rr 9–16
- Constitution — ss 59, 155(4), 166
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.