• Generally

As set out by the High Court in Australian Broadcasting Corporation v O’Neill ¹⁾, there are two main inquiries to undertake in determining whether to grant an interim injunction²⁾.

• The first is whether 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…
• The second inquiry is… whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
• It is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.
• How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.
• This is the “governing consideration”.
• This is particularly relevant where the grant or refusal of an interlocutory injunction would, in effect, dispose of the action finally in favour of whichever party succeeds on that application.

See also

• Commonwealth v John Fairfax & Sons Ltd ("Defence Papers case") ³⁾
• ABC v Lenah Game Meats Pty Ltd ⁴⁾

• Samsung Electronics Co. Limited v Apple Inc.⁵⁾ Interlocutory Injunction overturned
  • … Apple submitted that her Honour undertook the necessary evaluation of the strength of Apple’s case of infringement and, indeed, Samsung’s case for invalidity, and took the results of her evaluation into account both when determining whether Apple had established a sufficient prima facie case of infringement and in determining where the balance of convenience and justice lay.
  • Apple pointed to a number of references in her Honour’s reasons to the expression “prima facie case” as indicating that her Honour had conducted the requisite evaluation.
  • …
  • But, with great respect to her Honour, … there [is not] revealed [in the judgment] any assessment or evaluation of Apple’s case of infringement.
  • Her Honour was obliged to make such an assessment for the purpose of deciding whether Apple had made out a prima facie case of sufficient strength to justify the grant of an interlocutory injunction to restrain infringement of its patents.
  • In this case, given that the grant or refusal of interlocutory injunctive relief was going to have the practical consequence of deciding Apple’s claims for final injunctions and thus deciding the commercial fate of the Galaxy Tab 10.1, Apple was required to demonstrate a relatively strong case.
  • In addition to deciding whether Apple had made out such a prima facie case, her Honour was also required to assess the strength of that case so that she could take into account her views on that matter in her assessment of the balance of convenience and justice.
  • The primary judge did not undertake either of these evaluative tasks.
  • Her Honour’s failure to do so constituted important errors which led her to grant interlocutory injunctive relief in circumstances where, for reasons which we will explain, she should not have done so.
  • In our view, her decision was clearly wrong and should be set aside.
  • The discretion falls to be re-exercised by this Court.
  • Apple submitted that this Court should remit the matter to her Honour rather than re-exercise the discretion because there is a substantial body of evidence not referred to on appeal which nonetheless bears upon the proper exercise of the discretion.
  • We do not agree.
  • The appeal has been brought on urgently.
  • The underlying dispute has been regarded by both parties as urgent.
  • The subject matter of the dispute is of great significance to both parties.
  • We are not persuaded that there is any material of importance relevant to the exercise of discretion which has not been drawn to our attention.
  • We will, therefore, proceed to exercise the discretion ourselves.
  • Apple Inc. v Samsung Electronics Co. Limited ⁶⁾ - Patent Infringement - Interlocutory Injunction - Apple ipad cf Samsung galaxy 10.1

• Typically the granting of an injunction is subject to giving an undertaking for damages.

• Apple Inc. v Samsung Electronics Co. Limited ⁷⁾
  • Apple claims in dispute
  • Our prediction is that Apple will be found successful at trial but that decision will be set aside on appeal. Alternatively, a cross licensing settlement is highly likely. Carefully watch the US litigation for a key indication.

• Alphapharm Pty Ltd v Wyeth ⁸⁾ injunction granted
• Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth ⁹⁾
• Wake Forest University Health Sciences v Smith & Nephew Pty Ltd ¹⁰⁾
  • Smith & Nephew Pty Ltd v Wake Forest University Health Sciences ¹¹⁾

• Interpharma Pty Ltd v Commissioner of Patents ¹²⁾
  • In a patent case, the fact of registration constitutes prima facie evidence of validity… It has been said that it is for the respondent to show that want of validity is a triable question… This seems clear enough, but, in my opinion, the analysis needs to be taken a step further. Is it sufficient that the respondent does show a triable question on validity? In my view, if that is as far as the respondent goes, then, assuming always that the applicant has shown a triable issue on infringement, absent questions of validity, the conclusion would remain that the latter had a triable question. That is to say, as a matter of analysis, unless the case for invalidity is sufficiently strong (at the provisional level) to qualify the conclusion that, overall, the applicant has a serious question, or a probability of success, the court should move to consider the adequacy of damages, the balance of convenience and other discretionary matters. It is the applicant’s title to interlocutory relief which is under consideration, and the bottom-line question, as it were, is whether the applicant has a serious question, or a probability of success, not whether the respondent does in relation to some point of defence raised or foreshadowed. ¹³⁾

• GenRx Pty Ltd v Sanofi-Aventis ¹⁴⁾ injunction granted

• Merck & Co Inc v Genrx Pty Ltd ¹⁵⁾

• Pharmacia Italia S.p.A. v Interpharma Pty Ltd ¹⁶⁾

• Martin Engineering Co v Trison Holdings Pty Ltd ¹⁷⁾

• Beecham Group Ltd v Bristol Laboratories Pty Ltd ¹⁸⁾

• Beecham Group PLC v Colgate-Palmolive Pty Ltd ¹⁹⁾