Interlocutory Injunctions in Queensland: How to Stop Ongoing Harm While Your Case Proceeds

When a dispute reaches a point where waiting for trial will cause irreversible damage, Queensland courts have a powerful tool available to parties who need immediate protection: the interlocutory injunction. These orders can stop a competitor from using your confidential information, prevent a business partner from dissipating assets before judgment, restrain a breach of a restraint of trade clause, or freeze a transaction that would make any future remedy meaningless.

Understanding how to obtain an interlocutory injunction in Queensland, what courts require, and the significant risks involved is essential knowledge for any business owner or director facing a time-critical commercial dispute.

What Is an Interlocutory Injunction?

An interlocutory injunction is a temporary court order granted during the course of proceedings to preserve the status quo or restrain a party from acting in a way that causes ongoing harm while the substantive dispute is resolved. Unlike a final injunction granted after trial, an interlocutory injunction does not permanently determine the rights of the parties. Its purpose is to hold the position while the court works through the merits of the underlying claim.

Queensland courts can grant interlocutory injunctions under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and the inherent jurisdiction of the Supreme Court. For matters with a federal element, the Federal Court of Australia has equivalent jurisdiction under section 23 of the Federal Court of Australia Act 1976 (Cth).

Interlocutory injunctions fall into two categories: mandatory injunctions, which compel a party to take a specific positive action; and prohibitory injunctions, which restrain a party from doing something. Prohibitory injunctions are far more common in commercial disputes. They include orders restraining a party from dealing with assets (freezing orders), disclosing confidential information, competing in breach of a restraint clause, or completing a transaction pending the court’s determination.

The Legal Test in Queensland

The test for granting an interlocutory injunction in Queensland derives from the High Court of Australia’s decision in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. The court must be satisfied of two essential matters.

First Limb: A Serious Question to Be Tried

The applicant must establish that there is a serious question to be tried on the underlying claim. This does not require proof that the applicant will win at trial. It requires only that the underlying legal claim is not frivolous or vexatious and raises a genuine issue. The threshold is deliberately set at a low level to allow courts to intervene where harm is imminent, without pre-judging the merits of a complex legal dispute that would take months or years to resolve at trial.

However, “serious question” does not mean a bare assertion. Courts expect applicants to point to specific facts establishing the nature of the claim, the legal basis for it, and why it has a reasonable prospect of success. A properly drafted affidavit setting out those facts clearly is essential.

Second Limb: Balance of Convenience

Once a serious question is established, the court weighs the balance of convenience between granting and refusing the order. This involves a broad assessment of the practical consequences for each party of granting or refusing the injunction, having regard to:

• Whether damages would be an adequate remedy for the applicant if the injunction is refused and they succeed at trial
• Whether damages would be an adequate remedy for the respondent if the injunction is granted but the applicant later fails at trial
• The financial capacity of each party to meet a damages award
• The nature and extent of the harm each party would suffer if the order is granted or refused
• Any delay by the applicant in seeking relief (unexplained delay can significantly weaken the balance of convenience)
• The public interest, particularly where the conduct affects third parties or involves contractual rights more broadly

Where the balance of convenience is genuinely close, courts sometimes consider the relative strength of the parties’ cases on the merits. This is not a licence to conduct a mini-trial at the interlocutory stage, but it recognises that a stronger prima facie case can tip the balance in a close case.

The Undertaking as to Damages

Almost without exception, courts in Queensland require the applicant to give an undertaking as to damages before an interlocutory injunction will be granted. This means the applicant undertakes that, if the injunction is later dissolved or the underlying claim fails, they will compensate the respondent for any loss suffered as a result of the injunction.

This is a significant financial commitment. If the injunction restrains a business from operating, from completing a transaction, or from pursuing a commercial opportunity, the respondent’s loss during the period of the injunction can be substantial. Courts have ordered successful defendants to receive significant damages on the undertaking where applicants secured injunctions on weak or overstated grounds and the underlying claim ultimately failed.

Where the applicant is a company of limited financial standing, courts may require additional security, such as a bank guarantee, to support the undertaking. The court cannot compel an applicant to give the undertaking, but it will not grant the injunction without it in the vast majority of cases.

Urgent Ex Parte Applications

In genuinely urgent cases, Queensland courts can grant interlocutory injunctions ex parte, meaning without notice to the other party. These applications are typically made where giving notice would defeat the purpose of the order. For example, where a departing employee is about to disclose a database of confidential client information, or where a fraudulent party is about to transfer assets out of the jurisdiction before proceedings are commenced.

Ex parte orders carry significant obligations for the applicant. Full and frank disclosure is required: the applicant must place before the court all facts material to the court’s decision, including facts that might weigh against granting the order. Failure to make full and frank disclosure is a basis for setting aside an ex parte order, and courts take a serious view of any attempt to obtain injunctive relief through selective presentation of evidence.

Ex parte orders are granted for short, defined periods. The matter must be returned to court on short notice, typically within 2 to 7 days, to give the respondent the opportunity to be heard. At the inter partes hearing, the respondent can apply to have the ex parte order dissolved, varied, or extended.

Common Commercial Uses of Interlocutory Injunctions in Queensland

In the commercial dispute context, the most common situations where interlocutory injunctions are sought and granted include the following.

Restraint of Trade and Non-Compete Clauses

When a departing employee or director immediately begins competing in breach of a contractual restraint clause, the damage is often immediate and difficult to quantify at trial. Courts will grant interlocutory injunctions restraining the competing conduct where the restraint clause is arguable (not clearly void) and the ongoing breach is causing harm that damages cannot adequately compensate. In Queensland, the enforceability of the restraint clause is assessed under the common law reasonableness test, without the cascading provisions applicable in New South Wales under the Restraints of Trade Act 1976 (NSW).

Confidential Information and Trade Secrets

Misuse of confidential information is a classic interlocutory injunction scenario. Once confidential information has been disseminated, no damages award can restore the position. Courts recognise this and are generally willing to grant injunctions restraining further use or disclosure of confidential information where the applicant can establish that the information is genuinely confidential, that it was communicated in circumstances importing an obligation of confidence, and that there is actual or threatened misuse.

Shareholder and Director Disputes

Interlocutory injunctions are regularly sought in shareholder disputes to restrain a majority shareholder or director from taking corporate action that would be oppressive under section 232 of the Corporations Act 2001 (Cth), or that would entrench their position at the expense of the minority before proceedings are resolved. Common examples include injunctions restraining the issue of new shares to dilute a minority’s interest, the removal of a minority director from the board, or the transfer of company assets at undervalue.

Contract Completion and Commercial Transactions

Where a party threatens to rescind, complete, or terminate a commercial contract in circumstances that would cause irreversible harm, interlocutory relief can preserve the contractual position pending the court’s determination. Courts are, however, cautious about interlocutory orders that effectively grant the final relief sought, since granting such an order may effectively determine the proceeding at the interlocutory stage.

Intellectual Property Infringement

Ongoing trade mark infringement, copyright infringement, or passing off can cause sustained reputational and commercial harm that is difficult to quantify at trial. Interlocutory injunctions restraining the infringing conduct are common, with the undertaking as to damages calibrated to the commercial risk the applicant is accepting.

Interlocutory Injunctions vs Freezing Orders: What Is the Difference?

Freezing orders (also called Mareva injunctions) are a specific type of interlocutory order that restrain a party from dealing with, dissipating, or removing assets from the jurisdiction. They are used primarily in debt recovery and fraud contexts where there is a real risk that a judgment will be unsatisfied because the defendant has removed or hidden assets.

The legal test for a freezing order is distinct from the general interlocutory injunction test: the applicant must establish a good arguable case, a real risk of asset dissipation, and that the balance of convenience favours the order. Freezing orders are available under Part 9 of the Supreme Court of Queensland’s Uniform Civil Procedure Rules and can extend to third-party assets where there is a basis for a proprietary claim.

The distinction matters practically because freezing orders impose specific notification obligations on the defendant (to disclose assets above a threshold) and include carve-outs for living expenses and legal costs. If asset preservation is your goal rather than restraining specific conduct, a freezing order is the appropriate vehicle.

The Procedure for Seeking an Interlocutory Injunction in Queensland

The following is the standard procedure for obtaining an interlocutory injunction in the Queensland Supreme Court, which has jurisdiction over most significant commercial disputes.

Step 1: File the originating process. Proceedings must be on foot before an interlocutory injunction can be granted in most circumstances. This requires filing a claim and statement of claim (or in urgent circumstances, a claim only, with the statement of claim to follow). In truly urgent cases, courts can grant relief before proceedings are formally commenced, but this is unusual and requires compelling justification.

Step 2: Prepare the affidavit evidence. The affidavit in support of the injunction application is the single most important document. It must set out in detail the facts establishing: the nature of the underlying claim; the conduct the applicant seeks to restrain; why that conduct is causing or will cause irreparable harm; the balance of convenience; the undertaking as to damages; and (for ex parte applications) any facts that might count against the order. The quality of this affidavit frequently determines the outcome.

Step 3: File the interlocutory application. An application in Form 9 is filed with the court, seeking the specific orders required. On an ex parte basis, or in urgent situations, the court can be approached directly without prior notice to the other party.

Step 4: Attend the ex parte or urgent hearing. For urgent applications, the court’s duty judge will typically hear the matter at short notice. Counsel presents the application by reference to the affidavit evidence, argues the balance of convenience, and tenders the undertaking as to damages.

Step 5: Serve the order and attend the return date. Once the ex parte order is made, it must be served on the respondent promptly. The matter is then listed for a return date where the respondent has the opportunity to be heard and apply to dissolve or vary the order.

Step 6: Interlocutory hearing (if the order is contested). If the respondent contests the injunction, the matter proceeds to a contested interlocutory hearing. Both parties file evidence and written submissions. The hearing may take between half a day and several days depending on the complexity of the dispute. The order is then continued, dissolved, or varied by the court.

Costs of an Interlocutory Injunction Application

Interlocutory injunction applications are among the more expensive pre-trial steps in Queensland litigation. An urgent ex parte application typically involves several hours of affidavit preparation, barrister briefing, and court attendance, with costs in the range of $10,000 to $25,000 or more depending on complexity and urgency. A contested interlocutory hearing before the Supreme Court can cost significantly more, with each day of hearing adding substantial barrister and solicitor fees.

Costs of the interlocutory application are usually reserved until the outcome of the substantive proceeding, meaning neither party knows at the interlocutory stage whether they will recover their costs. In some cases, costs are ordered at the conclusion of the interlocutory hearing, particularly where an ex parte application was unnecessary or the respondent’s conduct was plainly unreasonable.

The cost of failing to obtain an injunction, or of the injunction being dissolved at the return date, can be significant: not only are the application costs wasted, but the applicant may face a substantial claim on the undertaking as to damages for losses the respondent suffered during the period the order was in force.

What to Do When You Need an Interlocutory Injunction

If you are in a situation where you believe an interlocutory injunction is necessary, the most important step is to act quickly and document everything.

Delay is one of the factors courts weigh heavily when assessing the balance of convenience. An applicant who has known about the harmful conduct for several weeks and has taken no steps is in a substantially weaker position than one who sought legal advice and moved promptly. If you become aware of conduct that is causing or threatening irreversible harm, contact a commercial litigation lawyer immediately.

Before your first conference with your solicitor, gather and preserve all relevant documents, communications, and records. In confidential information cases, secure copies of any data that establishes the information is confidential and that the respondent had access to it. In restraint of trade cases, document the competing activity through publicly available means (website, LinkedIn, client contacts) rather than conducting surveillance or accessing the former employee’s systems without authority.

Be honest with your legal advisers about the weaknesses in your position. The obligation of full and frank disclosure on ex parte applications means your lawyers need to know every fact that is material, including the facts that cut against the order. Trying to obtain an injunction by selective disclosure creates serious risk if the order is later challenged and those facts emerge in evidence.

Frequently Asked Questions

This is general information only and is not legal advice. You should obtain professional legal advice specific to your circumstances before taking any action in relation to an interlocutory injunction application or any other legal matter.

About the Author: Mark Harley is the Principal Solicitor at Boss Lawyers, a Brisbane commercial litigation and insolvency firm. Mark regularly acts in urgent interlocutory applications, shareholder disputes, director liability matters, and insolvency proceedings. For confidential advice, contact Boss Lawyers on 1300 267 711.