[AusNOG] Seeking after-hours injunctive relief

[Dale Clapperton]

Hi all

 

Before I start, usual disclaimers apply, this isn't legal advice, it's
for your general education only.  No, I will not give you legal advice
if you mail me off-list either!

 

I've been reading with interest the emails in the "Urgent - Pacnet NOC
contact (with BGP clue)" thread.  Without seeking to reopen the legality
or otherwise of the conduct alleged (which has been done to death) I
thought that the list membership might benefit from some general
information concerning seeking urgent injunctive relief (i.e. an
injunction) after hours.

 

Where a situation such as the one under discussion occurs outside a
court's usual operating hours, the Supreme Courts of each state and
territory, and the Federal Courts in each state will have a "duty judge"
who can hear urgent applications for things such as injunctions.  If
something like the current topic du jour occurs on Friday night, and
it's of such urgency that it can't wait till Monday, it may be possible
to have the duty judge hear an application for an injunction on the
weekend.  In extraordinarily urgent circumstances (such as where someone
is driving a bulldozer towards your property - this has happened!) the
judge might hear the application by telephone.

 

Injunctions aren't particularly easy things to get and they're certainly
not something that should be sought likely.  You would need to, amongst
other things, show that damages are not an adequate remedy, that there
is a serious question to be tried, and that the balance of convenience
favours granting the injunction.  You would also need to give the "usual
undertaking" as to damages - which could be quite expensive if you lose
the overall case and the other side suffered loss or damage as a result
of the injunction.

 

If you're ever in a situation where you might need to go down this path,
talk to a lawyer (not me) immediately.  If you are a person of commerce
and have an established relationship with a lawyer, it might be worth
keeping a mobile or after-hours number for them handy.  Although it's
possible that a court would grant an interlocutory injunction on the
application of a self-represented party (by which I mean that so far as
I know there is no rule against it), I think it's more of a theoretical
possibility than a real one.

 

Dale Clapperton

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