What Is an Injunction in a Commercial Dispute?
When your business faces an urgent commercial threat — a competitor stealing your clients, a former employee breaching their restraint, or a counterparty about to dissipate assets to avoid a judgment — waiting for a final hearing may not be an option. An injunction is the law’s emergency brake: a court order that compels someone to do something, or stops them from doing it, before the matter is finally resolved.
This article explains the types of injunctions available in Australian commercial litigation, the legal test courts apply, and what Brisbane businesses need to know about obtaining urgent relief from the Queensland Supreme Court.
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This is general information only and is not legal advice. You should obtain professional advice specific to your circumstances.
Interlocutory vs Final Injunctions
The first distinction to understand is between an interlocutory injunction and a final injunction.
A final injunction is granted at the conclusion of a proceeding after a full hearing on the merits. It is a permanent order reflecting the court’s final determination of the parties’ rights.
An interlocutory injunction is granted before final hearing to preserve the status quo or prevent irreparable harm while the matter is being litigated. It is temporary — it remains in force until the final hearing or further order. Most urgent commercial injunction applications are interlocutory in nature.
Interlocutory injunctions are powerful precisely because they can be obtained quickly and can stop harm before it becomes irreversible. But courts are cautious about granting them — the requirements must be satisfied.
The Test: When Will a Court Grant an Injunction?
Australian courts apply principles derived from the English decision of American Cyanamid Co v Ethicon Ltd [1975] AC 396, as adopted and adapted in Australian courts. To obtain an interlocutory injunction, the applicant must generally establish:
1. A Serious Question to Be Tried
The applicant must show that there is a serious question to be tried — that is, that the claim is not frivolous or vexatious, and there is a real prospect of success at the final hearing. This is not a high bar: you do not need to prove you will win, only that you have an arguable case worth trying.
2. The Balance of Convenience Favours Granting Relief
Courts weigh the potential harm to the applicant if the injunction is refused against the potential harm to the respondent if the injunction is granted. Factors considered include:
- The strength of the applicant’s case
- Whether harm to the applicant is irreparable (i.e., cannot be adequately compensated by damages)
- The conduct of the parties (delay in seeking relief weighs against the applicant)
- Third-party interests and the public interest
- Whether maintaining the status quo protects both parties’ interests
3. Damages Are Not an Adequate Remedy
A court will generally refuse an injunction if damages would adequately compensate the applicant. If the harm is purely financial and the respondent is solvent and capable of paying, a court may say: wait for the hearing and claim your damages then. Injunctions are reserved for situations where the harm is irreparable or the respondent’s ability to satisfy a judgment is in doubt.
The Undertaking as to Damages
In almost every interlocutory injunction application, the court requires the applicant to give an undertaking as to damages — a promise that, if the injunction is ultimately found to have been wrongly granted, the applicant will compensate the respondent for any loss suffered as a result. This is not a formality: applicants have been held liable for substantial damages under these undertakings. Consider the risk carefully before seeking urgent relief.
Freezing Orders (Mareva Injunctions)
A freezing order — historically called a Mareva injunction — is one of the most powerful remedies available in commercial litigation. It prevents a respondent from dealing with, disposing of, or diminishing their assets pending the resolution of a claim.
Freezing orders are particularly useful where there is credible evidence that the respondent is about to:
- Transfer assets overseas
- Dissipate funds to related parties
- Sell property to defeat a potential judgment
- Move assets outside the jurisdiction
To obtain a freezing order, you must satisfy a court that:
- You have a good arguable case on the merits
- There is a real risk that the respondent will dissipate assets and frustrate any judgment you obtain
- The balance of convenience favours granting the order
Freezing orders can be granted over assets in Queensland, across Australia (under the cross-vesting rules), and — in appropriate cases — even assets held overseas. They can also be granted against third parties who hold the respondent’s assets.
The practical effect of a freezing order is dramatic: banks are notified, property dealings are prevented, and the respondent is typically required to disclose the full extent of their assets. This combination makes it a highly effective tool for creditors and commercial litigants who face a real risk of the respondent “moving the money.”
Search Orders (Anton Piller Orders)
A search order — historically called an Anton Piller order — is a rare but powerful remedy. It requires the respondent to permit the applicant (and their solicitors) to enter the respondent’s premises to search for, copy, and preserve evidence or property that is at risk of being destroyed or concealed.
Search orders are most commonly used in intellectual property disputes, trade secret cases, and fraud matters where there is a real and specific risk that electronic evidence will be deleted or documents destroyed if notice is given.
Because of their intrusive nature, courts impose strict conditions on search orders. A supervising solicitor — independent of the applicant’s legal team — must be present during execution to protect the respondent’s interests.
Urgent Applications: Without-Notice (Ex Parte) Orders
In the most urgent cases — where giving notice to the respondent would itself defeat the purpose of the order (for example, where assets would be moved immediately on learning of the application) — a court may grant an injunction or freezing order on a without-notice (ex parte) basis.
Ex parte orders are granted only in genuinely urgent circumstances. The applicant bears the highest duty of disclosure: they must bring to the court’s attention every material fact, including facts that might weigh against granting the order. Failure to make full disclosure can result in the order being discharged and the applicant being exposed to a costs order and liability under their undertaking as to damages.
Without-notice orders are typically made on a very short-term basis — often until a return date a few days later, at which point the respondent can appear and contest the continuation of the order.
The Queensland Supreme Court Process
Commercial injunction applications in Brisbane are most commonly brought in the Commercial List of the Supreme Court of Queensland. The court has experienced judges who regularly deal with urgent applications and are familiar with the requirements.
In a genuinely urgent matter, the Supreme Court can:
- List an urgent application on the same day it is filed
- Grant short-service of process (requiring the respondent to appear at very short notice)
- Grant ex parte orders with a return date within days
Typical timeframes for non-urgent interlocutory applications range from a few days to several weeks, depending on the complexity of the matter and the court’s list. Costs in injunction proceedings can be significant: court filing fees, legal fees for urgent drafting and appearances, and the potential liability under the undertaking as to damages all need to be factored in.
The Federal Court of Australia (Brisbane Registry) is also an option for injunctions involving corporations law matters, IP, and competition law disputes.
Practical Examples: When Injunctions Are Used
Some common commercial scenarios where injunctions are sought in Brisbane and Queensland:
- Confidential information: A former employee or business partner threatens to use or disclose confidential business information, client lists, or trade secrets. An injunction can be obtained to restrain disclosure while the matter is resolved.
- Restraint of trade: A former employee or franchisee is operating in breach of a restraint clause. An injunction enforces the restraint pending a final hearing.
- Asset protection before judgment: You have obtained or are close to obtaining a judgment and the debtor is moving assets. A freezing order prevents dissipation.
- Director disputes: A director is taking steps to harm the company or misappropriate assets. An injunction restrains the conduct pending the resolution of an oppression claim.
- Contractual performance: A party to a contract is about to breach a key obligation, causing irreparable harm. An injunction compels performance or prevents breach.
Speak to a Brisbane Commercial Litigation Lawyer
If you face an urgent commercial threat, time is your most precious resource. Boss Lawyers has extensive experience obtaining injunctions, freezing orders, and urgent interlocutory relief in the Queensland Supreme Court and the Federal Court in Brisbane. We understand how to move quickly, how to frame applications that courts will grant, and how to protect your position while the matter is resolved.
Call Mark Harley on 1300 267 711 or visit bosslawyers.com.au to arrange an urgent consultation.
This is general information only and is not legal advice. You should obtain professional advice specific to your circumstances.
If you need strategic legal advice on commercial injunctions and litigation, contact the team at Boss Lawyers. Our commercial litigation lawyers Brisbane act for clients across Brisbane and Queensland. Call us on 1300 267 711 or use our online contact form to get started.
If you need experienced commercial litigation lawyers Brisbane to pursue or defend an injunction application, Boss Lawyers can help. Mark Harley has acted in injunction matters across the Supreme Court of Queensland and the Federal Court. Call 1300 267 711.
