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TOPIC 11 TUTORIAL

INTERLOCUTORY PROCEEDINGS

QUESTION 1
The question requires students to advise Jacko how Tall
Buildings Pty Ltd can be asked to clear the pathway and
remove vehicles from the laneway during his peak business
hours. He urgently requires the construction work to be
stopped because it is affecting his business and will continue
to affect ongoing business until the laneway is again clear.
Jacko would initiate proceeding for business losses he suffered
since Tall Buildings Pty Ltd commenced their construction
work, however, it may take a while before he receives a
judgement in his favour.
Meanwhile to avoid further loss to his business, he can request
for an injunction to be granted requiring construction work by
Tall Buildings Pty Ltd on the site to be limited to 7am to 4pm so
as to not coincide with his trading hours, and that trucks be
removed so as not to block the pathway.

QUESTION 1
Injunction
In NSW the Courts power is derived from s
66(4) Supreme Court Act 1970(NSW).
To obtain an interim injunction, Jacko must
establish two things:
(1) that there is a serious question to be tried, and
(2) that the balance of convenience favours the
granting of an interlocutory injunction.

The court may not grant an injunction unless it


appears to be just for the court to grant the
order.
Students would be expected to expand on this,
stating what the serious questions to be tired
are, and where the balance of convenience
falls. Weigh them

QUESTION 1
You will also discuss if there is any irreparable
harm caused by the action (granting the
order or refusing the order), and if there are
any other relief options such as damages as
adequate remedy.
Beecham Group Ltd v Bristol Laboratories Pty
Ltd (1968) 118 CLR 618.
Attorney General v Wigan Corporation (1854)
5 De GM & G 52 at 53, 54 (43 ER 789).

QUESTION 1
The procedure Jacko should follow is to file a
Notice of Motion setting out the orders he wishes
to seek in the interlocutory order.
See UCPR r18.2.
Notices of motion must be supported by affidavit.
r UCPR r 31.2.
The application for an interlocutory order will
normally be heard on the basis of and affidavit(s)
filed.

QUESTION 1
When the court grants the order, the plaintiff
must give notice to the defendant that the
interlocutory order has been granted if the order
is to be enforced.
An undertaking to damages must be given. State
who must give the undertaking.

QUESTION 2
On the facts, we know that Gardener Helpers
(GH) has initiated proceedings for
infringement of trade mark, they have also
obtained an interlocutory injunction
restraining Cheap and Cheerful Pty Ltd (CAC)
from selling any further allegedly infringing
tools.
What they are currently concerned about is
that CAC will ship all their tools to China and
they want to stop this.

QUESTION 2
The proper order to go for will be an Anton
Piller Order.
The primary purpose of an Anton Piller order is
to prevent a defendant from interfering with
discovery and frustrating a trial by destroying
documents or evidence.
The application for the Search Order is made
on an ex-parte basis, by way of Notice of
Motion - this is in Form 20). The relevant rule
to consider is UCPR 25.19.

QUESTION 2
In order to obtain an Anton Piller order, GH must meet the
following tests.
1. GH must show that they have a strong prima facie case
against CAC.
2. The potential for actual loss or damage to GH will be
serious if the search order is not made.
3. There is sufficient evidence that CAC possesses
important evidentiary material.
4. There is real possibility that CAC might destroy such
material or cause it to be unavailable for use in evidence
in a proceeding or anticipated proceeding before the court.

QUESTION 2
Cite r 25.20 and the rule is
accompanied by a practice direction Practice Direction 24 (Federal Court).
GH must also undertake to
compensate CAC and third parties (if
any) for any loss that they might
suffer if it is ultimately determined
that the order was unwarranted. See R
25.8.

The End