Employment disputes and injunctions

It is quite common for the Federal Court and the Federal Circuit Court to be asked to grant interim injunctive relief in matters involving employment law disputes in such cases as general protections claims and restraint of trade cases.

This extract from a recent decision of the Federal Court sets out the factors and principles involved in determining whether urgent injunctive relief should be granted to preserve the status quo.

“Relevant principles

27    The applicable principles in respect of interlocutory injunctions are settled and do not need to be rehearsed at length in this judgment.

28    In order to secure an interlocutory injunction, the plaintiff must generally show: first, that there is a serious question to be tried, or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that, at the trial of the action, the plaintiff will be held entitled to relief; second, that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and third, that the balance of convenience favours the granting of an injunction: see Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [13]; Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 (Samsung v Apple) at [53].

29    The Court’s task of assessing the balance of convenience and justice requires the Court to determine whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused is outweighed by the injury which the defendant would suffer if an injunction were granted: see Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Samsung v Apple at [58].

30    The question of whether or not the plaintiff must show that he will suffer irreparable harm if no injunction is granted is one of the matters which will ordinarily need to be addressed in the Court’s consideration of the balance of convenience and justice. That question involves an assessment by the Court as to whether the plaintiff would, in all material respects, be in as good a position if he were confined to his damages remedy as he would be if an injunction were granted. The matter should not be elevated into a separate and antecedent enquiry, but rather, is best left to be considered as part of the Court’s assessment of the balance of convenience and justice: see Samsung v Apple at [61]-[63].

31    Resolution of the question of where the balance of convenience and justice lies requires the Court to exercise a discretion. In exercising that discretion, the Court is required to assess and compare any prejudice and hardship likely to be suffered by the defendant, third persons, and the public generally if an injunction is granted, and that which is likely to be suffered by the plaintiff if no injunction is granted. In determining this question, the Court must make an assessment of the likelihood that the final relief, if granted, “will adequately compensate the plaintiff for the continuing breaches which will have occurred between the date of the interlocutory hearing and the date when final relief might be expected to be granted”: see Samsung v Apple at [66].

32    The question of whether there is a serious question to be tried or whether there is a prima facie case “should not be considered in insolation from the balance of convenience”, and the “apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance”: see Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595 at [15]; Samsung v Apple at [67].”

AEI Insurance Group Pty Ltd v Martin [2022] FCA 1384 delivered 9 November 2022 per Wigney J