LAWS4001 Lecture Notes - Lecture 6: Unfair Prejudice In United Kingdom Company Law, Material Witness, Australian National University
Week 6 – Interlocutory applications
NOTICE OF MOTION
Can request a motion from the judge in court and avoid formal application process
A request for particulars from other side will extend the timeframe the D has to file
an appearance/defense
Often, enquiries should first be made of the opposing party to find out whether it will
consent to the interlocutory orders sought, without the need for a formal application
Proper use of interlocutory procedures can clarify matters in dispute, facilitate
proof, minimise surprise, reduce hearing time and costs, and procure tactical
advantages
A party who moves the court unnecessarily, without previously seeking consent of
the other party, is at risk as to costs (Moore v Gannon)
Kowalski v MMAL Staff Superannuation Fund Pty Limited [2009]:
An order is an interlocutory order when it stays or dismisses an action or refuses leave to
commence or proceed with an action because the action is frivolous, vexatious, an abuse of
the process of the court or does not disclose a reasonable cause of action
It may be that the practical effect of an order will be such as to render a further
application fruitless unless supported by additional relevant facts
Does not make an order one which finally determines the rights of the parties in a
principal cause pending between them
Orders dismissing applications for interlocutory injunctions and for orders striking
out matter within a statement of claim, which it was said tended to prejudice and
embarrass a defendant and to delay the fair hearing of the suit, are interlocutory
UCPR – Part 18
s 18.1 – applications for court orders to be made by motion
An interlocutory or other application is to be made by motion unless these rules otherwise
provide.
s 18.2 – requirement for notice
(1) A person may not move the court to make any order unless notice of motion has been filed
and served on each person affected by the proposed order.
(2) Despite subrule (1), a person may move the court to make an order without notice of
motion having been filed or served on a person if:
(a) that person consents to the making of the order, or
(b) the preparation, filing or service of the notice would cause undue delay or other
prejudice to the person by whom the order is sought, or
(c) the court dispenses with the requirement for such notice to be filed or served, or
(d) under these rules or the practice of the court, the motion may be made without the
prior filing or service (as the case may be) of notice of motion.
s 18.3 – Contents of the notice of motion
(1) A notice of motion for an order:
(a) must identify the person by whom the order is sought:
(i) if the person is already a party to the proceedings, as that party (for
example, as first plaintiff or second defendant), or
(ii) if the person is not yet a party to the proceedings, as the applicant, and
(b) must identify each person affected by the order:
(i) if that person is already a party to the proceedings, as that party (for
example, as second plaintiff or first defendant), or
(ii) if that person is not yet a party to the proceedings, as the respondent, and
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(c) if the person by whom the order is sought is not already an active party, must state
an address for service for that person, and
(d) unless the motion is to be moved in the absence of the public, must state the date
and time when, and the place where, the motion is to be moved, and
(e) if the court makes an order as to the time by which the notice is to be served, must
bear a note of the order made, and
(f) must state concisely the nature of the proposed order.
(1A) In the case of proceedings in Class 1, 2, 3 or 4 of the Land and Environment Court's
jurisdiction, a notice of motion must identify a person who is not yet a party to the
proceedings by name alone, and not as the applicant or respondent as required by subrule (1)
(a) (ii) or (b) (ii).
(2) Costs need not be specifically claimed in the notice of motion.
(3) If a notice of motion is of a kind that, under any Act, any rules of court or any practice of
the court, is dealt with in the absence of the public, the notice of motion must contain a
statement to the effect that the motion is to be so dealt with.
(4) If it becomes necessary for an application under subrule (3) to be dealt with in court, the
registrar is to refer it to the court and give notice to the parties that the application has been
so referred.
Evidence by way of affidavit
Evidence in support of a motion is given by affidavit
oSetting out the reason for the delay e.g. additional action or cause or action
has no merit, or to add parties
As a general principle hearsay evidence is not admissible in a hearing on the
substantive issues between the parties. However, there is an exception in relation to
interlocutory proceedings - s 75 of the Evidence Act 1995 (NSW) provides that:
oIn an interlocutory proceeding, the hearsay rule does not apply to evidence if
the party who adduces it also adduces evidence of its source.
oEvidence of a previous representation made by a person is not admissible to
prove the existence of a fact that it can reasonably be supposed that the
person intended to assert by the representation.
So, the affidavit in support of an interlocutory application can contain
information based on information and belief provided the grounds of belief and
sources of information are stated (Cairns, 552)
Instances where affidavit is not required: when consent from the other side is
granted an affidavit is not necessary
oCorrespondence of the consent annexed to the back of the application
s 18.4 – Time for service of motion
Unless the court orders otherwise, a notice of motion must be served at least 3 days before
the date fixed for the motion. (must file on each person)
s 1.11 – Reckoning of time
Don’t count the day of service (received) – that is day 0 (28 days starts the next day)
Public holidays don’t count and days the registry is closed (i.e. weekends)
A complex notice of motion: a timetable maybe set to deal with the affidavits and
reply
s 18.5 – Notice to be personally served on persons who have not entered appearance
A notice of motion must be personally served if the person on whom it is to be served:
(a) is not a party to the proceedings, or
(b) is a party to the proceedings, but is not an active party (otherwise than because the
party has failed to comply with the requirements of these rules with respect to
entering an appearance).
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s 18.6 – Hearing of Interlocutory Applications
(1) A party's notice of motion in any proceedings must include, so far as practicable, all
applications that the party desires to make in relation to the proceedings and that, having
regard to the nature of the proceedings, can conveniently be dealt with at the one time.
(2) On the hearing of a party's notice of motion, any other party may make any application in
relation to the proceedings.
(3) If on the hearing of a party's notice of motion, any other party makes an application under
subrule (2), the court:
(a) may deal with both applications at the hearing, or
(b) may adjourn the hearing and, if appropriate, may direct any necessary notice of
motion to be given to the other parties.
s 18.7 – Motion maybe dealt with in the party’s absence
If service of a notice of motion on any party is required by these rules, and notice of motion
has been duly served on that party, the court may hear and dispose of the motion in the
absence of that party.
s 18.8 – Further Hearing
(1) If notice of a motion for any day has been filed or served, and the motion is not disposed
of on that day:
(a) the court may hear and dispose of the notice of motion on any later day fixed by
the court, and
(b) subject to subrule (2), filing or service of a further notice of motion is not
required.
(2) Subrule 1 (b) does not apply:
(a) if the court directs the filing or service of a further notice of motion, or
(b) if service is required on a person on whom notice of motion has not previously
been served.
s 18.9 - Directions as to conduct of proceedings on notice of motion
In proceedings on a notice of motion, the court may give directions as to the order of evidence
and address and generally as to the conduct of the proceedings.
CIVIL PROCEDURE ACT
s 14 – court may dispense with rules in particular case
In relation to particular civil proceedings, the court may, by order, dispense with any
requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of
the case.
s 16 - Power of the Court to make directions in respect of situations not covered by the
rules
(1) In relation to particular civil proceedings, the court may give directions with respect to
any aspect of practice or procedure for which rules of court or practice notes do not provide.
(2) Anything done in accordance with such a direction (including the commencing
of proceedings and the taking of any step in proceedings) is taken to have been validly done.
ADJOURNMENT
s 66 – Adjournment of Proceedings (courts have very broad powers)
(1) Subject to rules of court, the court may at any time and from time to time, by order,
adjourn to a specified day any proceedings before it or any aspect of any such proceedings.
(2) If a judicial officer is not available at the time appointed for the hearing of
any proceedings, a registrar may adjourn, to a later time on the same day or to a later
specified day, any matters listed for hearing by the judicial officer at the appointed time.
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Document Summary
Can request a motion from the judge in court and avoid formal application process. A request for particulars from other side will extend the timeframe the d has to file an appearance/defense. Often, enquiries should first be made of the opposing party to find out whether it will consent to the interlocutory orders sought, without the need for a formal application. Proper use of interlocutory procedures can clarify matters in dispute, facilitate proof, minimise surprise, reduce hearing time and costs, and procure tactical advantages. A party who moves the court unnecessarily, without previously seeking consent of the other party, is at risk as to costs (moore v gannon) Kowalski v mmal staff superannuation fund pty limited [2009]: It may be that the practical effect of an order will be such as to render a further application fruitless unless supported by additional relevant facts.
