What does prohibitory injunction actually mean?
It sounds complicated, but understanding the meaning of the words can help. The word prohibitory, means to refrain. An injunction is a type of court order. Therefore, a prohibitory injunction is a court order which requires someone to refrain from doing some particular act.
In contrast, a mandatory injunction is a court order that requires someone to do something. For more information about Mandatory Injunctions, see here
It is a remedy
A prohibitory injunction is a remedy. A remedy is some end result that you want to happen after finalisation of your proceedings. For example, a prohibitory injunction is a common remedy in privacy actions under the Privacy Act 1988 (Cth). Likewise, for an order to prevent the sale of goods a prohibitory injunction may be appropriate.
For instance, if your neighbour causes a nuisance on your property – you’ll probably want to get a prohibitory injunction!
How do I apply?
A lawyer can help you decide whether this is a suitable remedy for you. A temporary injunction, also called an interlocutory injunction, may also be appropriate. A temporary injunction is granted before the final hearing. In other words, you can protect yourself or business while the court decides whether or not to grant you a permanent injunction.
How will the court decide whether to grant one?
There is a list of factors the court will consider in deciding to order a prohibitory injunction. Firstly, the court must consider whether damages are an inadequate remedy. Secondly, the court must apply its own discretion.
Damages must be an inadequate remedy
The court will not grant an injunction if damages are an adequate solution. For example, if there is a nuisance on your property, damages may be inadequate. This is because damages will not stop the nuisance from occurring. So, if damages are suitable the court will not grant an injunction.
The court will take account of discretionary matters
There is no ‘right’ to being awarded an injunction. The court must decide whether it is appropriate in the circumstances. The court must consider whether the injunction would cause:
- Unfairness on the defendant,
- Financial hardship on the defendant,
- Require the courts constant supervision or
- Enforce personal services.
Further considerations may include any improper conduct engaged in by the party applying for the injunction. For example, if a person applying for an injunction has engaged in some wrongful act, the court will not grant an injunction.
What if I breach a prohibitory injunction taken out on me?
‘Contempt’ of court powers may be exercised against you if you fail to abide by a court order. Furthermore, proceedings and penalties may apply.
A prohibitory injunction is a type of court remedy. This remedy is a court order that requires someone to refrain from doing some act against some other party. However, it is up to the court to determine whether or not to grant a prohibitory injunction.