LEC 7: Interlocutory Applications

What are they ?

 Application for specific order BEFORE Ct makes final orders/decision in case (interim orders)

Why teach them?

 Most common applications /hearings in litigation practice

Gen purpose:

To preserve fair balance between parties – prevent hardship or abuse or process AND assist in efficient/effective final determination when hearing comes

Various Functions:

1 Prevent hardship or prejudice to either parties

2 Benefit the parties & the court

3 Provide direction in the carriage of the proceedings

4 Strategy /tactics in litigation

An interlocutory determination can:

provide for an early disposal of a matter eg striking out of pleadings, summary judgment
assist in narrowing the issues for the trial eg amending pleadings, further and better particulars, Scott schedules (in building and engineering cases) – UCPR Rule 15.2
promote proper forensic and evidentiary advantages e.g. discovery and interrogatories
obtain directions as to how procedurally the case is to be conducted i.e. a timetable
reduce the hearing time on the ultimate or substantive issue in dispute
reduce legal costs in the long run given the reduction in litigation time.

Source of Power: Civil Procedure Act 2005 (juris basis)

Part 6 -Case Management & Interlocutory Matter

Division 1-Guiding Principles

S56 -Overriding purpose: to facilitate the just, quick and cheap resolution of the real issues
S57 -Objects of Case management: the efficient disposal of the business of the court
S58 -Court to follow dictates of Justice
S59-Elimination of delay: practice and procedure should be implemented with the object of eliminating any lapse of time
S60-proportionality of costs: the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute

 satisfy Ct order appropriate in circ to satisfy interest of justice (s56):

Why is it in interests of justice?
How will it maker it quicker?
Cheaper?
More efficient
If not granted will it compromise interests of justice?

Prevent Hardship or Prejudice

Prevent abuse of process – for example,

Strike out pleadings (orig process or def) that discloses no COA
Order provision of proper particulars
Where: insufficient partics re damage, allegations of neg, not properly/fully pleaded
Order for access to certain documents e.g. Discovery, Interrogatories (to examine basis of claim/def)
Orders made where leave is required
Ct consider interests of justice from parties perspective
Leave req (even if D consents to proposed orders): expedition, vacation of hearing date, amendment of pleadings

Benefit Parties and Cts

Promotes efficiency  s56 CPA (just, quick, cheap resolution of real issues)
Addresses issues prior to hearing
Ensures only real issues to be determined at hearing
Procedural fairness
Ensures all available evidence is accessible
Ensures all parties comply with the Rules
Reduces hearing time
Identifies matters capable of being admitted (via notices to admit, discovery, interrogatories)
Exchange of information means only real issues to be determined at hearing (eg. expert reports, Wit statements, Aff)
Reduces legal costs by reducing hearing time

Provide direction in carriage of proceedings

Striking out pleadings-Part 12
Summary disposal- Part 13
Order for provision of particulars-Part 15
Amending pleadings –Part 19
Discovery & Inspection-Part 21
Interrogatories-Part 22
Interim Preservation Orders-Part 25
Setting aside judgment-Part 36
Security for costs-Part 42

Strategy/tactics in litigation

Uses:

Force other party to declare their hand on particular issues
Threaten increased costs  get admission or further info
Shows you have strong case.

BUT use wisely:

Frivolous or in appropriate applications are dealt with harshly
May get CO against you!
Might test other party’s case, but may also show your weaknesses
May not encourage settlement/early disposal of matter

Common reasons for interlocutory applications

To dismiss or set aside proceedings
To obtain further information or clarify issues between the parties
Discovery/inspection of docs
Request partics
Interrogatories
Amend pleadings
Applications to inspect property
To attempt an early resolution of the proceedings
Strike out claim/def
Summary judgment
Set aside default judgment
Reinstate proceedings
To address non-compliance with the rules
Seek extension of time (eg to get expert evidence or discovery)
To direct or address the conduct of the matter
Join another party
Adjourn hearing
Get orders re form of evidence
Expedite hearing
Where specific circumstances of a case require the Courts intervention

Procedure

Is leave required?

If so, NOM  should still notify other party and get response (can attach to Aff)
If not, ask other party.

Practice Note: PN DC (Civil) No 1

File a NOTICE OF MOTION:

State precisely orders sought (not vague). For example:
The defendant provide discovery to the plaintiff of all documents & records in relation to an accident at the corner of Malvern Street and Addison Avenue at Manly Vale at approximately 5pm on 14 April 2009.
The Plaintiff supply the particulars requested by the defendant in the letter dated 17 May 2009 within 14 days on the making of this order.
Registry will allocate return date/time
Serve at least 3 days before Motion date/time: R18.4
Must serve personally if person is not party or not active party: R18.5

Affidavit in Support: Form 40

If file NOM  file Aff (evi) supporting orders sought: UCPR 51.61
Make sure to include everything you want Ct to consider (relevant evidence)
Link evidence, facts and law

Affidavit in Reply:

If OS opposes NOM  file Aff in Reply
Supply evidence (for use at bar table in submissions) to support facts, which prove/disprove elements.

Preparing Interlocutory Application

What is the jurisdictional basis?
Do UCPR or PN have specific requirement? If not, look at CPA.
What is the purpose of the application?
Necessary for effective conduct of case?
Possible advantages vs cost/delay?
Will application help overall strategy/progress of case?
What orders will be sought?
Are orders appropriate? Enforceable (look at wording)?
Likelihood of getting orders (given Aff material, UCPR and PN)?
What alternative orders exist?
What if other party doesn’t consent or Ct refuse?
What other orders could be considered/included in application?
What is the attitude of the opposing party?
Have you approached other party for consent?
Let other party know: may consent (easier for all parties and judge)

Form

Form 20 is used in most instances, for interlocutory applications,
Form 36- default judgment claim for possession of land
Form 37- default judgment for detention of goods
Form 38- application for default judgment of liquidated claim
Form 39 -unliquidated claims for damages

Notice of Motion – Pt 18

Application: R18.1

Any interloc or other application MUST be made by Motion (unless UCPR says otherwise)

Notice/Serving: R18.2

Can only “move” Ct when NOM filed/served on each person affected
UNLESS:
Other person consents to proposed order
Would cause undue delay/prejudice to applicant
Ct dispenses with req
UCPR or PN says don’t need NOM
Or use Summons instead: eg.
Discovery to find prosp D’s identity/location: 5.2

Contents of NOM: R18.3

Name of Applicant/Respondent
Address for service – if Applicant is not already active party
Date, time, place of hearing Motion
Nature of order sought (state concisely)
Grounds on which orders sought – or Aff which sets out grounds

Affidavit in Support – Pt 35

Why orders are sought
Why court should make them: refer to UCPR, PN, CPA to see what grounds. Eg:
To vacate long case: “exceptional circumstances” PN para 9.3
Freezing order: “good cause of action AND risk remedy will be frustrated”
Dismiss proceedings for want of due despatch: P does not prosecute with due despatch or D does not conduct Def with due despatch: UCPR 12.7
What jurisdiction court has
Attempts made to obtain result without seeking orders-where possible
Eg. approached OS to see if the consent to orders?
Eg. explored alternative acceptable orders?
Deponent can be required for cross-x
Respondent can file affidavit in reply

Affidavit – Form 40

Deponent-the person who gives the evidence
Jurat-The statement at the end of the affidavit which sets out where and before whom the affidavit was sworn

Sworn /affirmed at Sydney

On date

Before me

Witness- must administer the oath of affirmation Oaths Act 1900 (NSW) ss11A-13
Amendments-not possible. Must be re-drafted and re-sworn
Annexures- must be identified with a certificate endorsed by the witness

This and the following three pages are the annexure marked “A” referred to in the affidavit of [deponent’s full name] sworn the day of 2009

Before me:

Signature of witness”

Solicitor/Justice of the Peace

Matters To Consider

What is Aff in Support?

If NOM  must file Aff (in support) setting out evidence that A relies on to support proposed orders: R51.61
It is sworn evidence supporting the application.

Contents

Address why the party needs the order to be made;

Leave of court required by the Rules
Interests of justice
Efficient disposal of the proceedings
Inability to properly meet the case
Failure of other party to comply with the Rules
Consequences if orders not made

Other:

What steps taken to get OS to comply with request WITHOUT Ct order?
Attach all corro with OS regarding request
Attach letter, which advises OS that you will seek order/costs if not consented/complied
Be clear re juris basis for Ct to make order
Consider:
likelihood of obtaining orders (aff, rules, CPA, PNs).
consequences if OS doesn’t consent and Ct might not grant orders

Rules of Evidence Apply

Must use direct speech
Must NOT use hearsay.
S75 EA 1995 exception: if it comes with evidence of source of hearsay
Must NOT use opinion evidence.
Attach supporting evidence – eg. corro, reports
Evidence must be relevant

Practical Issues

Rules of evidence apply
Who will be the author of the affidavit?
Obtain instructions before drafting of the affidavit
Is content of the affidavit all admissible?
Give the author the opportunity to check for additions or revisions before swearing or affirming the affidavit
Have all relevant annexures to the affidavit been collated, copied and correctly annotated?
Has the affidavit been sworn or affirmed correctly?
Is it likely the deponent will be required for Cross?

Costs

Don’t necessarily follow the event (can be ordered at any stage), BUT usually payable at concl
If party moves Ct unnecessarily WITHOUT seeking OS consent  risk of costs
If orders sought are bcos of applicant’s conduct  may have costs against them
Costs: of NOM and orders sought
Where orders sought are due to conduct of applicant may have costs awarded against them i.e. vacating hearing date

Interim Preservation Orders

Injunctions: equitable remedy requiring a person to do or refrain from doing a particular act
Source of power (juris): court’s inherent jurisdiction to prevent abuse of process.
Gen: req NOM and Aff in Support (address req below)

Freezing orders (Mareva Order) Pt 25 Division 2:

PURPOSE: Prevent frustration/inhibition of Ct process  address danger that judgment/prosp judgment of Ct will be wholly/partly unsatisfied (bcos D dispose of assets): 25.11
Juris to grant recognised in Riley McKay Pty Ltd v McKay [1981] 1 NSWLR 264.
Ct may make order if satisfied that danger bcos:
D may abscond
D remove or destroy assets

Search orders (Anton Piller order) Pt 25 Division 3:

PURPOSE: Secure/preserve evidence + give ppl power enter prem to secure evidence (relevant to antic or current proceeding): 25.19
Ct may make order if satisfied that: 25.20
P has strong prima facie case on accrued COA
Potential/actual loss/damage to P is serious
Sufficient evidence that D has impt evidentiary material
Sufficient evidence that D might destroy material or cause it to be unavailable