Urgent Injunction Lawyers in Melbourne

What this practice area covers

This page anchors our work for clients who need a court order before something irreversible happens. The cluster includes freezing orders to restrain the dissipation of assets, search orders to preserve evidence, interlocutory injunctions to restrain a breach of contract, breach of confidence, breach of a restraint of trade, breach of director duties, or threatened misuse of a corporate opportunity. It also includes the urgent applications that sit inside larger disputes, such as orders to restrain or compel a meeting or resolution under shareholder oppression proceedings, or to restrain a removal under director dispute proceedings.

The matters we see most often have one feature in common: the position will change in a way that money cannot put right unless the Court intervenes. A bank account is about to be drawn down. A share transfer is about to be lodged. A meeting is about to pass a resolution that, once passed, cannot easily be unwound. A departing employee is about to use confidential information at a competitor. A counterparty is about to dispose of a property over which a charge or constructive trust is asserted. In each case, the right order in the right Court within the right window is the difference between a recoverable position and a permanent loss.

We act on urgent applications across the commercial spectrum. The most frequent grounds are breach of contract and restraint of trade, breach of confidence and misuse of confidential information, breach of director duties and improper diversion of opportunities, and conduct that is alleged to be in breach of the Corporations Act 2001 (Cth), where section 1324 provides a direct injunction power. We are comfortable in the Practice Court of the Supreme Court of Victoria and before the duty judge of the Federal Court. We also run urgent applications in support of freezing order matters that have an interstate or overseas element.

The legal framework in Australia

The starting point for any interlocutory injunction in Australia is the equitable jurisdiction of the Court, supplemented by the rules of court and, where relevant, by statute. The substantive test was established by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. The Court must consider whether the applicant has made out a prima facie case for the relief claimed, and whether the inconvenience or injury that the applicant would suffer if the injunction were refused outweighs the injury that the respondent would suffer if it were granted.

The current articulation of the test, and the rejection of the English American Cyanamid approach, was provided by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57. The Court will ask whether the applicant has shown that there is a serious question to be tried as to the applicant's entitlement to relief, whether the applicant is likely to suffer injury for which damages will not be an adequate remedy, and whether the balance of convenience favours the granting of an injunction. The Court is to consider the strength of the probability of success in deciding whether to grant relief, and the threshold is not the lower English test.

Freezing orders, formerly Mareva orders, are governed in Victoria by Order 37A of the Supreme Court (General Civil Procedure) Rules 2015. The Federal Court provisions are in Part 7 of the Federal Court Rules 2011 (Cth). Both Courts also operate detailed Practice Notes, with Practice Note SC Gen 17 governing freezing orders in the Supreme Court of Victoria. The test for a freezing order is that the applicant has a good arguable case on a cause of action justiciable in an Australian Court, and that there is a real risk that, unless the order is made, the prospective judgment will be wholly or partly unsatisfied because the prospective judgment debtor's assets will be removed from Australia or otherwise dissipated.

The High Court in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 settled the test for freezing orders against third parties. A freezing order can extend to a person who is not a party to the substantive proceeding where that person holds, is using, has a power of disposition over, or is otherwise in possession of, assets of the prospective judgment debtor, or where there is a process by which the judgment creditor may be able to recover from the third party. The Cardile principles are now reflected in the harmonised Court rules and Practice Notes across Australian jurisdictions.

Two further procedural matters are decisive in practice. First, the applicant must give the usual undertaking as to damages, an undertaking to the Court to compensate the respondent and any affected third party for any loss caused by the order if it is later set aside or shown to have been wrongly obtained. Where there is doubt about the applicant's capacity to honour the undertaking, the Court will require security. Second, ex parte applications carry a duty of full and frank disclosure. Material that is known to the applicant and is or may be relevant to the Court's decision must be disclosed, including matters that may be adverse to the applicant's case. Failure to disclose is a recognised ground for setting aside an order at the inter partes return date.

Where the conduct sought to be restrained is a contravention of the Corporations Act 2001 (Cth), section 1324 provides a direct statutory injunction power, on the application of ASIC, the company, or a person whose interests are affected. The section is wide and is often pleaded in parallel with the general equitable jurisdiction, particularly in matters involving threatened breaches of director duties or of the takeover and capital raising provisions.

How we work across this area

The first hour is structural, not narrative. We need to know what relief is actually sought, against whom, in which Court, on what evidence available now, and what undertakings the applicant can honestly give. Urgent applications fail more often on inadequate evidence and overreaching relief than on the substantive merits of the underlying claim. We work the affidavit and the proposed minutes of order in parallel, not in sequence, so that the relief sought and the evidence supporting it move together.

Where the matter is genuinely time critical, the Practice Court of the Supreme Court of Victoria and the duty judge of the Federal Court hear urgent applications outside ordinary listing pathways. Same day hearings are real but rare. Most urgent matters are heard within twenty four to seventy two hours of the application being filed, with a return date set days later for an inter partes hearing once the respondent has been served. We brief senior counsel where the relief is significant, the respondent is well resourced, or the matter has reputational consequences.

For freezing orders specifically, the financial work begins immediately. The applicant's capacity to support the undertaking as to damages is part of the application. We routinely instruct independent solicitors as the supervising solicitor required by Practice Note SC Gen 17 when the order is sought ex parte, and we work with the applicant's accountant on the asset position before the affidavit is finalised.

For interlocutory injunctions to restrain a meeting or resolution, the work is procedural and corporate at once. We read the constitution, the notice of meeting, the proposed resolutions, and the relevant provisions of the Corporations Act, then decide whether the relief sought is an injunction to restrain the meeting altogether, an injunction to restrain a specific resolution, or an order under section 1324. Each pathway has a different evidence shape and a different risk profile for the undertaking as to damages.

Tone matters even in urgent matters. The Court is asked to grant a serious order at short notice. The applicant's credibility is part of the case. We are direct in submissions and at the bar table, candid about weaknesses in the application, and disciplined about the scope of relief sought. A narrow order made on a clean evidentiary foundation almost always serves the client better than a wide order made on a thin one.

Urgent family law injunctions

The urgent injunction jurisdiction is not limited to commercial matters. The Federal Circuit and Family Court of Australia has broad powers to make injunctive orders in family law proceedings under section 114 of the Family Law Act 1975 (Cth), including orders restraining a party from dealing with property the subject of property settlement proceedings, orders for the preservation of matrimonial assets, and orders binding third parties under section 90AE where corporate entities, trusts, or partnerships are involved.

For business owners, urgent family law injunctions most often arise where one party is moving assets out of a company structure in contemplation of separation, where shares are about to be transferred to a related entity, where a trustee is about to make a distribution that would defeat a property claim, or where a director spouse is taking steps that prejudice the other spouse's likely entitlement. The jurisdiction sits beside section 106B of the Family Law Act, which allows the Court to set aside transactions made to defeat a claim. Where the matter has both family law and commercial dimensions, we coordinate the urgent application with our family law for business owners practice rather than running the two as separate retainers.

Online defamation and reputation protection

Australian courts have always approached prior restraint of allegedly defamatory publication with caution. The High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 reaffirmed that the value of free speech weighs heavily in the balance of convenience where an injunction is sought to restrain a publication, and discharged an injunction at appellate level on that reasoning. The threshold for restraining publication is higher than for general commercial injunctions.

That does not mean injunctive relief is unavailable in online defamation matters. Where the publication is not defended as substantially true, where the harm is ongoing and serious, or where the publisher is anonymous and the substantive proceedings cannot move until the publisher is identified, the Court can grant takedown orders, restraining orders, and preliminary discovery orders against intermediaries. The work in online defamation is often less about restraining the publisher in the first instance and more about identifying the publisher, removing the publication at the platform level, and preserving the evidence of the publication and its reach for the substantive proceeding.

Evidence in urgent injunction applications

The Court is asked to grant a serious order on limited material under compressed timeframes. The evidence must therefore be precise, credible, and properly anchored. A successful application generally requires clear documentary exhibits, an affidavit that addresses each element of the relief sought, identification of the harm that damages will not cure, and contemporaneous evidence that the applicant has acted promptly once the relevant conduct was discovered.

Delay materially weakens an urgent application. Courts are properly reluctant to grant urgent relief where the applicant has known about the conduct for weeks or months and is only now seeking court intervention. The affidavit must usually explain the timing, including when the conduct was discovered, what steps were taken in the interim, and why the application is now urgent. Where the application is brought ex parte, the duty of full and frank disclosure attaches: material known to the applicant and relevant to the Court's decision must be disclosed, including matters adverse to the application. Failure to disclose is a recognised independent ground for setting an order aside at the return date.