‘Strategic’ Intervention Orders in commercial disputes
We often have clients approach us for assistance because an Intervention Order (IVO) has been taken out against them as part of a commercial dispute between shareholders and company directors or even director against director.
While an IVO certainly has a place in protecting one person from another person's aggressive or threatening behaviour, more often we are seeing them strategically misused in commercial disputes.
In this article, we’ve tried to provide some insight into how we are seeing them being misused, what some of the unintended consequences of this misuse can be as well as what you can do if you find yourself in such a situation.
Madgwicks Lawyers have made applications in the past for IVO’s on behalf of our clients where there is an issue of personal safety or after apprehended violence.
Types of IVO’s
In Victoria, IVO’s come in two forms:
- an interim order put in place until a Magistrate can hear all the evidence of a matter and make a final decision; and
- a final order that is put in place by a Magistrate after they have heard all the evidence and they believe a person needs court-ordered protection.
Interim orders can be made by a Magistrate without a respondent being at court or knowing about the order until they are served by a member of the police, and you must then obey those orders until the Court orders otherwise.
Intervention Orders can stop the Respondents from a number of activities, including:
- contacting or communicating with the protected person by any means
- publishing anything on social media about the protected person
- approaching or remaining within a certain distance of the protected person (including offices, shops, places of business, school, and homes); and
- getting another person to do anything the respondent must not do under the order.
Traditionally, IVO’s are intended to protect an individual or individuals in matters such as divorce, alcohol/substance abuse and sexual abuse however they are also used in other types of disputes where the intention is more strategic and seeks to prohibit another party from doing something that they would otherwise have the right to do, and where there is little or no likelihood of violence.
Unfortunately, the mere allegation of violence or threatening behaviour is often enough for interim orders to be granted.
We have advised in a number of matters where an interim IVO had been obtained as part of a dispute among members of an Owners Corporation.
Usually, an occupier takes out an interim IVO against the building manager, or vice versa, in an attempt to obtain a strategic advantage in relation to the use or alleged misuse of the common property of the body corporate or alleged breach of body corporate rules.
Interim intervention orders have also been utilised in cases of relationship breakdowns where no harm or threat of violence is apparent from either party. This has been observed as a means of seeking revenge against a former partner or for strategic purposes to gain leverage for a better financial settlement. In such cases, the primary objective is to exert control over the once-beloved partner, which may include restricting access to certain areas of the home or even the entire premises.
In one extreme example, after a relatively short relationship, the residential home owned by an individual couldn’t be accessed by them for a short period as their ex had, shortly after their break up and without permission, taken up residence at the property, changed the locks and excluded the owner from accessing the property by using an IVO and calling the police.
In this case the interim IVO effectively stopped the legal owner from being able to enter or approach their own home until we were able to provide legal assistance in the matter.
We have also seen IVO’s used as ‘punishment’ for social disagreements or a disagreements on social media in circumstances in which there was no threat of bodily harm.
Where an interim order has been made in circumstances such as these, the party that originally applied for the IVO chooses not to supply any further evidence that would allow the interim order to become a final order, or they do not attend the hearing and the interim IVO lapses – by which time the objective of the application has been achieved.
Aside from the personal and financial toll it can take on the individual subject to the ‘strategic’ interim IVO, there are unintended consequences also.
For example, where a company director is the subject of an interim IVO due to a dispute with a shareholder or another director, it can make it a criminal offence for them to attend the office or locations where the business operates.
This can be damaging to the commercial operations of the company; disrupting the day-to-day management of the company, not to mention its revenue, which usually penalises all concerned in the IVO application and not just its subject.
Finally, the ultimate potential unintended consequence in the use of interim IVO’s in non-violent, commercial and family disputes is that the courts will potentially miss granting one in a situation where there is a real need to keep an individual safe.
Steps you can take before briefing a lawyer
If you feel you are subject to a ‘strategic’ interim IVO, here are some of the steps you can take before seeking legal advice:
- Prepare a history of the dispute between yourself and the Applicant
- Prepare a list or collection that details evidence of interactions between yourself and the Applicant (such as texts, recordings, letters etc)
- Consider what orders you need to overturned urgently and what orders you can deal with on a temporary basis
If you would like to discuss your own situation further, do not hesitate to contact Bo Zhou or one of the other lawyers from our Litigation and Disputes team.