[AusNOG] Seeking after-hours injunctive relief

[Skeeve Stevens]

Very very useful and appropriate for the current topic and useful to the overall members of the list.

...Skeeve

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From: Dale Clapperton <Dale.Clapperton at staff.pipenetworks.com<mailto:Dale.Clapperton at staff.pipenetworks.com>>
Date: Mon, 13 Dec 2010 22:12:09 +1100
To: "ausnog at lists.ausnog.net<mailto:ausnog at lists.ausnog.net>" <ausnog at lists.ausnog.net<mailto:ausnog at lists.ausnog.net>>
Subject: [AusNOG] Seeking after-hours injunctive relief

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 “dutyjudge” 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 mighthear 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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