covid19-law.com.au
7. Equity
A. Overview
The circumstances of the COVID-19 pandemic may be relevant to courts' consideration of whether to grant equitable remedies.
B. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
C. Case law
The NSW Supreme Court has considered the COVID-19 pandemic when applying the "balance of convenience" test in an application for an interlocutory injunction. In Hotwork Australia Pty Ltd v Tomkins [2020] NSWSC 494, the Court held that the applicant's delay in bringing the application was a significant factor in the exercise of the Court's discretion, notwithstanding the pandemic: "[w]hile accepting that COVID-19 might have raised an initial question as to the appropriate approach, as made clear by announcements on the Supreme Court’s website, this Court and a duty Judge have been available to deal with urgent matters of this type throughout the recent period, albeit by video, telephone or on the papers": at [117].
In a migration context, the prospect of an applicant facing an elevated risk of contracting COVID-19 if returned to a particular society where the disease is still spreading may be need to be weighed in determining where the balance of convenience lies for the purposes of an application for interlocutory injunctive relief pending judicial review: CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825, [79].
See also Rowson v Department of Justice and Community Safety [2020] VSC 236, where an interlocutory injunction was granted on the basis of COVID-19 related risk, in order to preserve the subject-matter of the proceeding (discussed in detail in the Government Obligations section).
A. Overview
The circumstances of the COVID-19 pandemic may be relevant to courts' consideration of whether to grant equitable remedies.
B. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
C. Case law
The NSW Supreme Court has considered the COVID-19 pandemic when applying the "balance of convenience" test in an application for an interlocutory injunction. In Hotwork Australia Pty Ltd v Tomkins [2020] NSWSC 494, the Court held that the applicant's delay in bringing the application was a significant factor in the exercise of the Court's discretion, notwithstanding the pandemic: "[w]hile accepting that COVID-19 might have raised an initial question as to the appropriate approach, as made clear by announcements on the Supreme Court’s website, this Court and a duty Judge have been available to deal with urgent matters of this type throughout the recent period, albeit by video, telephone or on the papers": at [117].
In a migration context, the prospect of an applicant facing an elevated risk of contracting COVID-19 if returned to a particular society where the disease is still spreading may be need to be weighed in determining where the balance of convenience lies for the purposes of an application for interlocutory injunctive relief pending judicial review: CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825, [79].
See also Rowson v Department of Justice and Community Safety [2020] VSC 236, where an interlocutory injunction was granted on the basis of COVID-19 related risk, in order to preserve the subject-matter of the proceeding (discussed in detail in the Government Obligations section).
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