Summary
- An interlocutory application is a request made to the court during ongoing litigation, before the final hearing, seeking orders or directions on procedural or substantive matters.
- These applications can address urgent issues such as injunctions, discovery disputes, security for costs, or amendments to pleadings during the course of proceedings.
- Courts have broad discretion to grant or refuse interlocutory relief, considering factors including the strength of the applicant’s case, balance of convenience, and whether damages would be an adequate remedy.
- This article explains interlocutory applications for business owners involved in commercial litigation in Australia.
- LegalVision is a commercial law firm that specialises in advising clients on dispute resolution and commercial litigation matters.
Tips for Businesses
Consider whether urgent interlocutory relief is necessary before final hearing. Prepare strong evidence supporting your application, as courts require compelling grounds. Understand cost implications, as unsuccessful applications may result in adverse costs orders. Seek legal advice early to determine appropriate timing and strategy for any interlocutory application.
An interlocutory application is a formal request asking a court to make orders during ongoing proceedings, before the final hearing. Think of it as a mini hearing within the main case, used to resolve procedural issues, protect a party’s rights, or seek urgent court assistance. One party files the application, the other may consent or contest it, and a judge decides. This article will explain why to use interlocutory applications and the benefits they bring. It will also outline the steps you use to make an interlocutory application if you are involved in a court proceeding.
Why Do You Need an Interlocutory Application?
An interlocutory application is a request made by one party, asking the relevant court to make orders to help with their case’s preparation or procedure. Court proceedings rarely go smoothly, therefore, interlocutory applications allow you to seek orders to help keep your case on track or protect your rights in some way.
Interlocutory applications stop parties from acting in an unfair or unethical way. A party will often use them when they believe the other party has not complied with its obligations under the court proceeding or timetable. Such as providing all details of a claim when requested.
Types of Interlocutory Applications
There is a wide variety of types of interlocutory applications. Common types include:
Injunctive Relief
Orders that stop the other party from doing something, like terminating a contract or completing a sale purchase. They are usually urgent, requiring the orders by a certain deadline.
Particulars
Orders to compel a party to provide particulars (details) that the other party has requested, seeking clarification of information in legal documents, including a statement of claim or defence.
Discovery
Orders to compel a party to provide certain documents sought by the other party through the discovery process.
Therefore, an interlocutory application seeks orders that the documents should be discovered.
Subpoenas
Subpoenas are orders to determine whether a party can ask a third party to provide certain documents. As above, the other party may object to documents sought by the other party because they are not relevant to the proceedings.
Interrogatories
Orders to compel the other party to answer certain questions, required to determine a position on a matter in dispute. The questions must be necessary and to help provide a fair trial.
Medical Examination
Orders that one party submit to a medical examination. For example, this may be sought where the other party has concerns about the medical condition of that party and how it may impact the matters in dispute.
Setting Aside a Default Judgment
Orders to set aside (overturn) a judgment ordered by the court when the other side fails to lodge a defence by the deadline.
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Steps to Make an Interlocutory Application
You usually make interlocutory applications after issuing court proceedings but before the final hearing date. The procedure to make an interlocutory application is below.
1. Complete an Application Form
An interlocutory application usually starts when the party seeking the orders files an application form. These vary among states and territories, for example, in New South Wales, it will be a Notice of Motion.
2. Provide Evidence
The application must be accompanied by evidence supporting your request. For instance, this is usually an affidavit (verified statement) of the party seeking the order and will include relevant documents.
3. File and Serve
You must file the application form and supporting affidavit with the court and then serve it personally on the other party, or via the other party’s lawyers.
4. Ex Parte Hearing
If the orders you seek are urgent, you may request that the interlocutory hearing be ‘ex parte’, meaning without the other party attending.
5. Interlocutory Hearing
If the other party does not consent to the orders sought, the court will list it for an interlocutory hearing. Depending on the orders sought, this may be short and conducted in a few hours, or a full day or more. However, both parties will have the opportunity to make their arguments and question any witnesses if relevant.
6. Preparation and Hearing
Usually, your barrister (or counsel) will attend the hearing. Preparation will involve written submissions setting out your arguments with reference to any evidence filed with the interlocutory application. Furthermore, other helpful preparation legal documents might be a chronology, setting out a timeline of relevant events.
7. Orders
Depending on the application’s and matter’s complexity, the court will either make orders immediately after the hearing or reserve its judgment and provide it later. Further, the court will usually make an interlocutory order at the same time it gives the judgment.
Key Takeaways
Interlocutory applications and hearings are an important part of court proceedings. Above all, they allow the parties to correct any unjust behaviour by the other party and keep the proceedings in line with the court’s timetable. They can add significant time and expense to a court proceeding. You should consider the potential for common interlocutory applications when estimating your legal costs at the start of a hearing. These applications ensure that procedural fairness is maintained, and parties can seek necessary orders to support their case preparation or address urgent matters. Proper use of interlocutory applications can prevent delays and ensure efficient case management.
Frequently Asked Questions
It is an application to ask the court to make certain orders. Court orders are commands by a judge, declaring something to be done or prohibiting something from being done.
You can use an interlocutory application, such as an interlocutory injunction, to help keep a case on track or to protect your rights. They stop parties from acting unethically, and parties often use them when one party believes the other has not complied with their court procedure obligations.
An interlocutory hearing is held if a party does not consent to the orders sought by an interlocutory application. The hearing allows for both sides to present their arguments so that the judge can make a decision.
Yes, a court can refuse an interlocutory application despite a strong case. Courts consider factors beyond merits, including whether damages would be adequate, the balance of convenience, and any delay in bringing the application. Disproportionate harm to the respondent may also result in refusal.
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