Your business partner just transferred company funds to a new entity he controls. Your competitor is about to publish a statement you know is false and commercially damaging. A former employee is soliciting your clients in breach of a restraint clause. You need it stopped — now.
This is exactly what an injunction is designed for. In commercial litigation in Queensland, injunctions are among the most powerful tools available. Used correctly, they can freeze assets, restrain harmful conduct, and preserve the status quo while the underlying dispute is resolved.
This article explains what injunctions are, the types available in Queensland commercial disputes, the legal test courts apply, how to apply in the Queensland Supreme Court, and when courts say no.
What Is an Injunction?
An injunction is a court order requiring a person or entity to do something (a mandatory injunction) or to refrain from doing something (a prohibitory injunction). In commercial disputes, injunctions are most often sought to:
- Restrain a party from taking a step that would cause irreversible harm
- Freeze assets so they are available to meet any judgment (a freezing order, also called a Mareva order)
- Preserve evidence that might otherwise be destroyed
- Compel a party to take a specific action (mandatory injunction)
Injunctions are equitable remedies — they originate in equity and remain discretionary. Even if you satisfy the legal test, a court is not obliged to grant an injunction. That discretion means the way your application is prepared and presented genuinely matters.
Types of Injunctions in Commercial Disputes
Interlocutory Injunction
The most commonly sought type in commercial litigation. An interlocutory injunction is a temporary order, granted pending the final determination of the dispute. It is designed to hold the position until the court can hear the full case on the merits. Most commercial injunction applications are interlocutory — the substantive rights are litigated later.
Permanent Injunction
A final order granted after the court has heard the matter fully and determined the parties’ rights. A permanent injunction becomes part of the final judgment. In commercial disputes, permanent injunctions are often granted in intellectual property cases, breach of confidence matters, and where ongoing restraint is necessary.
Freezing Order (Mareva Order)
A freezing order restrains a respondent from dealing with, disposing of, or diminishing their assets up to a specified value pending the determination of a claim. The purpose is to prevent a judgment debtor from making themselves judgment-proof by dissipating assets before a final order can be enforced.
Freezing orders are available under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), r 260A and the inherent jurisdiction of the Supreme Court. They are available against assets located in Queensland and, in appropriate cases, on a worldwide basis.
To obtain a freezing order, you must satisfy the court that you have a good arguable case on the merits; the respondent has assets in Queensland; there is a real risk the respondent will dissipate those assets in a way that would frustrate enforcement of a future judgment; and the balance of convenience favours the grant.
Search Order
A search order authorises the applicant to enter the respondent’s premises and search for, inspect, and seize specified documents and property. They are granted in cases of genuine urgency where there is a real risk that evidence will be destroyed. Courts scrutinise these applications closely and attach strict conditions to any order granted.
The Legal Test for Interlocutory Injunctions
The foundational framework for interlocutory injunctions in Australia derives from the House of Lords’ decision in American Cyanamid Co v Ethicon Ltd [1975] AC 396, as adapted and applied by Australian courts. The test involves three main questions:
1. Is There a Serious Question to Be Tried?
The applicant must demonstrate that there is a genuine legal claim — not merely arguable in a technical sense, but a claim with a real prospect of success at trial. The court does not conduct a mini-trial at the interlocutory stage; it asks whether the claim is not merely vexatious or frivolous.
2. Does the Balance of Convenience Favour the Grant?
The balance of convenience requires the court to weigh the harm that would result to the applicant if the injunction is refused against the harm to the respondent if it is granted. This is often the critical battleground in injunction applications. Relevant factors include:
- Whether damages would be an adequate remedy if the injunction is refused
- The irreversibility of the harm complained of
- The strength of the applicant’s case on the merits
- The conduct of the parties, including delay by the applicant
- Third-party interests and public interest considerations
3. Does the Overall Discretion Favour Relief?
Even if the first two elements are satisfied, the court exercises a residual discretion. Conduct inconsistent with the grant of equitable relief — such as delay, lack of candour, or unclean hands — can defeat an application that would otherwise succeed on the merits.
In Queensland, the Supreme Court applies this framework within the context of the Uniform Civil Procedure Rules 1999 (Qld) and the Court’s inherent jurisdiction.
How to Apply for an Injunction in the Queensland Supreme Court
Commercial injunction applications in Queensland are generally made to the Supreme Court of Queensland. The process involves the following steps:
- File an originating application or statement of claim. You need underlying proceedings to support the injunction. In urgent cases, the injunction application can accompany the originating process.
- Prepare supporting affidavit evidence. The application must be supported by detailed affidavit evidence setting out the facts, the basis of the claim, the harm you face, and why an injunction is needed.
- Lodge the draft order. You must provide the court with a draft of the order you seek. The terms must be precise — vague or overbroad orders will be refused or cut down.
- Attend the hearing. For urgent without-notice applications, you appear before the Duty Judge. For contested applications, a directions hearing is usually set with a return date for the substantive hearing.
Urgency and Without-Notice Applications
Where there is genuine urgency — for example, assets are about to be dissipated, confidential information is about to be published, or a contract is about to be completed that will cause irreversible harm — an applicant can seek an injunction without giving notice to the other side (an ex parte application).
Without-notice applications engage the highest duty of disclosure in litigation: the applicant must make full and frank disclosure of all material facts, including those that may be adverse to the application. Failure to make full disclosure is a serious matter that can result in the injunction being discharged and costs orders against the applicant.
In Queensland, the Duty Judge at the Supreme Court is available for urgent applications.
The Undertaking as to Damages
Almost invariably, the court will require an applicant seeking an interlocutory injunction to give an undertaking as to damages — a promise to pay the respondent’s damages if it is later found that the injunction should not have been granted.
Consider: if you obtain an injunction that restrains your competitor’s product launch, and you subsequently lose the case on the merits, you may be required to compensate your competitor for the losses caused by the delay. The undertaking as to damages means injunctions are not cost-free litigation tools — they carry real financial exposure for applicants who ultimately fail.
In some cases, the court may require security for the undertaking as a condition of granting relief.
When Courts Refuse an Injunction
Courts regularly refuse injunction applications. Common reasons include:
- Delay. An applicant who waits weeks or months after becoming aware of the conduct sends a clear signal that the matter is not truly urgent. Delay is often fatal to an application for interlocutory relief.
- Damages are an adequate remedy. If the harm can be properly compensated in damages, courts prefer to let the dispute run to trial.
- Weak underlying case. Applications based on legally doubtful propositions will not attract interlocutory relief.
- Balance of convenience favours the respondent. If granting the injunction would cause greater harm to the respondent than refusing it would cause to the applicant, relief will be refused.
- Failure to give full and frank disclosure in without-notice applications.
- The order sought is too wide or uncertain.
Frequently Asked Questions
How quickly can I get an injunction in Queensland?
In genuine emergencies, the Supreme Court can grant without-notice injunctions on the same day an application is made, before the other side is heard. For contested applications where notice is given, interlocutory hearings are typically listed within days to weeks of filing.
Do injunctions only apply to property disputes?
No. Injunctions are available across a wide range of commercial disputes — including restraint of trade cases, intellectual property infringement, breach of confidence, misleading and deceptive conduct under the Australian Consumer Law, shareholder disputes, and breach of contract situations where damages are inadequate.
What is the difference between a freezing order and a regular injunction?
A standard injunction restrains specific conduct (or compels it). A freezing order is a specific type of injunction that freezes assets to preserve them for judgment enforcement. Freezing orders can be obtained before trial where there is a real risk of asset dissipation.
Can I get an injunction against someone outside Queensland?
Yes, in appropriate cases. The Supreme Court of Queensland has jurisdiction to make orders with extraterritorial effect, particularly in asset-freezing applications. Enforcing those orders against persons or assets located outside Queensland may require additional steps, including orders from courts in other jurisdictions.
What happens if the other side ignores the injunction?
Breach of a court injunction is contempt of court. The consequences can include fines, sequestration of assets, and — in serious cases — imprisonment. The coercive force of a court order is one of the primary reasons obtaining an injunction is often strategically critical in commercial disputes.
How much does it cost to apply for an injunction?
Costs vary significantly depending on urgency, complexity, and whether the application is contested. Your lawyer should give you a clear estimate before filing. The costs exposure — including the risk of a costs order if you fail — must be weighed against the commercial value of the relief sought.
Related Reading
This is general information only and is not legal advice. You should obtain professional advice specific to your circumstances.
Speak to a Commercial Litigation Lawyer in Brisbane
Boss Lawyers regularly acts in urgent injunction applications across commercial litigation matters in Queensland — from freezing orders and restraint of trade injunctions to confidentiality and breach of contract applications. We understand the Queensland Supreme Court’s practice and the strategic importance of getting the application right the first time.
If you need urgent commercial legal advice in Brisbane, call Mark Harley on 1300 267 711 or visit our commercial litigation page.
Mark Harley
Principal Solicitor
Boss Lawyers
Level 27, Santos Place, 32 Turbot Street, Brisbane QLD 4000
1300 267 711 | bosslawyers.com.au
