Commercial operators recognise that legal advisors are one of the tools in the box that assist in problem prevention or problem solving.
When an operator is backed into a corner, either by the intentional or unintentional acts of an employee, competitor, supplier, consumer or accreditation
body, they can be left with the uncomfortable situation of having to consider aggressive legal action to protect their rights.
An injunction is one of the best tools when relationships break down and the preservation of the status quo is a must.
One of the most common situations is where confidential or private information is taken or used without the consent or agreement of the owners of that
The relevant test for an injunction
In applications for an injunction the Court will ask two questions:
1. has the applicant established a prima facie case (ie, is there is a real chance that at trial the applicant will be held entitled to relief it seeks);
2. does the balance of convenience and justice favour the granting of an injunction?
This test can really be summarised more simply:
1. do you have a case (that has a realistic chance of success); and
2. do you objectively need the injunction? (could you live without it)
For commercial operators deciding to pull the trigger on an injunction is a tough and costly call. The better way to view the approach to the problem is
to contact your legal advisors and marshal your evidence. Even if the injunction does not proceed this work will be valuable in both preparing for
any subsequent claim or in avoiding premature action. Understanding that the Court has wide discretion as to whether to grant the injunction even if
you have a good case is important to understand and legal advice on the probability of obtaining an injunction is essential in the decision as to whether
to seek an injunction.
Aitken Partners has successfully acted for private clients, small to medium sized businesses and large incorporated companies in preparing for and obtaining
urgent injunctions. You can contact the Aitken AFA Members Hotline on 1300 AFA LAW (1300 232 529)
Article prepared by Jonathon Lean