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Week 11 Injunctions; Monetary Remedies - Coggle Diagram

- - - - equity’s auxiliary jurisdiction, the plaintiff must firstly establish that common law damages are inadequate: Evans Marshall and Co Ltd v Bertola SA [1973] 1 All ER 992
  - - - Mandatory: commands a positive act to be done
        
        Mandatory restorative injunction Redland Bricks; and
        
        A mandatory restorative injunction requires a party to repair damage it has caused. It will only be granted if a prohibitory injunction could have been ordered before the wrong occurred: Redlands Brick Ltd v Morris [1970] AC 652. See also Jessica Estates Pty Ltd v Lennard [2007] NSWSC 1434, [22].
        
        Mandatory enforcing (like specific performance)
        
        compels a person to perform an act that he or she promised to do for valuable consideration: see Radan and Stewart [30.21]. It will only be granted if:
        
        ● the agreement that created the obligation would be specifically enforceable; and
        
        ● in all the circumstances, the injunction would be just and equitable: Burns Philp Trust Co Pty Ltd v Kwikasair Freightlines Ltd (1963) SR (NSW) 492.
    - - Prohibitory: restrains or forbids conduct
    - - A perpetual injunction is intended to ‘finally settle relations between the parties’.
        
        Granted after final hearing of claim on its merits; it settles relations between the parties within finality.
        Not necessarily permanent but may be confined for a particular period of time
      - An interlocutory injunction is a temporary order made before the full hearing of the matter. It does not involve ‘a trial on the merits’.
        https://www.awbrisbanelawyers.com.au/what-is-interim-injunction-interlocutory-injunctions-court-litigation-lawyers-brisbane/
        
        In assessing whether to order an interlocutory injunction the court applies the test in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.
        
        Requirement No 1: Prima Facie case Is there a prima facie case/ serious question to be tried?
        
        Requirement No 2: Balance of convenience The court balances the inconvenience or injury to the plaintiff (if injunction not ordered) v that which would be suffered by the defendant were the injunction ordered (i.e., the balance of convenience)?: Qld Industrial Steel v Jensen
        
        Undertaking as to damages
        
        Usually, as a condition of granting an interlocutory injunction, the plaintiff will be required to make an undertaking as to damages
        
        This is an undertaking given to the court. It is also enforced by the court. It is not an agreement between the parties
        
        European Bank Ltd v Evans (2010) 240 CLR 432
        
        The court will have regard to the party’s ability to satisfy the undertaking: Cambridge Credit Corp Ltd v Surfers Paradise Forest Ltd [1977] Qd R 261
        
        It is rare for an interlocutory or interim injunction to be granted without an undertaking as to damages.
        
        Ex-Parte Applications
        
        Generally, an interlocutory injunction will not be granted unless both parties are present and able to present their arguments.
        However, a court may order an injunction on the application of one party without the presence of the defendant: an ex parte application.
        A high standard of candour (i.e., frankness and honesty) on the part of the applicant is required.
        
        The test for an ex-parte injunction according to Orpen v Tarantello [2009] VSC 143 requires
        
        (i) The applicant must put all the relevant information before the court;
        
        (ii) The duty to disclose is absolute, and owed to the court;
        
        (iii) The disclosure must be full and fair;
        
        (iv) It is not an excuse to say that one did not know the information;
        
        (v) Materiality of the information is to be determined by the court; and
        
        (vi) Any defence must be disclosed.
        
        An interim injunction
        
        is a type of interlocutory injunction, though it is more temporary; it remains in force until a date before the final hearing:
        
        Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; .
        
        See Radan and Stewart [30.20]
    - - A quia timet injunction prevents a wrong being committed: Proctor v Bayley (i.e. before it happens!)
      - Granted where:
        
        no harm to the plaintiff has occurred but is threatened; or
        
        harm has been done by defendant’s earlier actions, and plaintiff has been compensated but still fears future wrongs may be committed by defendant: .
        
        Redland Bricks v Morris Qui Timet injunction arise in the following two types of cases
        
        where as yet no harm to the defendant has occurred but it is threatened or intended and;
        
        where harm has been done by the earlier actions of the defendant and the P has been compensated, but the P fears that future wrong may be committed by the D
      - The likelihood of an infringement of the plaintiff’s rights must be ‘reasonably certain’: FCA Finance Pty Ltd v Moreton Central Sugar Mill Co Ltd [1975] Qd R 250 or a ‘very strong probability’: Redland Bricks v 3 Monetary Morris AC 665; All ER 579: Radan and Stewart [30.60].
  - - - An injunction will not be ordered unless there is a violation of plaintiff’s rights: North London Railway Co v Great Northern Railway Co.
      - In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, Lenah Meats could not point to any legal or equitable right worthy of protection by an injunction. This was because ABC had not been a trespasser, so there was not the jurisdiction to support the application
        
        For example, ABC v Lenah Game Meats (2001) 208 CLR 199 concerned an application for an injunction to restrain the publication of allegedly illegally made video of the operations of an abattoir. However, the applicant, Lenah Game Meats, could not ’point to any legal or equitable right which would be infringed by the broadcaster’s transmission’: see Radan and Stewart [30.6]. As no right was infringed, the court found that it did not have jurisdiction to order an injunction to restrain broadcast of the video footage.
- - - - The contrast between equitable compensation and account of profits: An account of profits looks at the gain of the wrongdoer, whereas equitable compensation looks to the loss of the injured party: Edmonds v Donovan (2005) 12 VR 513, 544; Radan and Stewart [32.5]-[32.6].
    - - Breach of trust: Re Dawson
      - Breach of fiduciary duty: McKenzie v McDonald
      - – Breach of confidence: Cadbury Schweppes v FBI Foods
      - Fraud on a power: Houghton v Immer
      - Estoppel: Smith v Smith (Marlin).
    - - The question is ‘whether the loss would have happened had there been no breach, not whether the loss was caused by or flowed from the breach’: Parker, Re Purcom No 34 Ltd (in liq) (No 2) [2010] FCA 624, [23].
    - - At first instance, in Digital Pulse Pty Ltd v Harris (2002) 40 ACSR 487, 513-515, Palmer J awarded exemplary damages. The New South Wales Court of Appeal reversed Palmer’s J’s decision in Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298, disallowing the award of exemplary damages. See Radan and Stewart [3.19]-[3.20].
    - - Aggravated damages relate to harm caused to the plaintiff’s dignitary interests
      - In Giller v. Procopets, the defendant sought to harass and humiliate his former de facto partner by distributing video recordings depicting them engaged in sexual intercourse. At first instance, Ms Giller failed in her claim for mental distress damages on the basis of breach of confidence, intentional infliction of injury or an invasion of privacy because there were no Australian precedents allowing such awards. Following recent English authorities, the Victorian Court of Appeal accepted the claim in breach of confidence and awarded Ms. Giller $40,000 for injury to feelings, including$10,000 aggravated damages. The plaintiff’s success in breach of confidence allowed the court to leave open whether Australian law should recognize a common law right to privacy. By majority, the court also denied recovery for intentionally causing emotional distress falling short of psychiatric injury. The fact that mental distress damages are now available under breach of confidence has strengthened the status of this cause of action as a quasi-privacy tort.
        
        Neave JA noted that equitable ‘damages are compensatory and not punitive’. However, Her Honour added at 442:
        
        I am satisfied that Mr Procopets breached his duty of confidence with the deliberate purpose of humiliating, embarrassing and distressing Ms Giller, and that his conduct had that effect. I therefore consider it appropriate to include a component for aggravation in the award of compensation.
  - - - “If a court has jurisdiction to hear an application for an injunction or specific performance, the court may award damages as well as, or instead of, an injunction or specific performance”.
        
        Remember this is the reinstatement of the Lord Cairns Act
    - - Equitable damages can be ordered in addition to specific performance or injunctive relief. Equitable damages can also be ordered if specific performance is ordered, but that, in the view of the court, it is not a complete remedy: Ford-Hunt v Raghbir Singh [1973] 2 All ER 700; Radan and Stewart [32.51].
    - - three situations in which equitable damages will be awarded in preference to specific performance
        
        (i) where an order for specific performance is sought and refused on a discretionary ground: Norton v Angus (1926) 38 CKR 523; Radan and Stewart [32.53];
        
        (ii) where specific performance is ordered but cannot be carried out: Radan and Stewart [32.54]; and
        
        (iii) where the court has the discretion to order specific performance, but the defendant argues that equitable damages should be awarded to the plaintiff: Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311.
      - In cases in which the court refuses specific performance on discretionary grounds, it may still order equitable damages: Norton v Angus (1926) 38 CLR 523 (Norton v Angus).
      - Equitable damages may also be ordered in situations where an injunction would require ongoing court hearings: Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311