In Short
- Interlocutory Application: A temporary court request made during ongoing proceedings, seeking urgent orders or directions before the final judgment.
- Purpose: Used to preserve rights, manage evidence, or maintain the status quo while the main case continues.
- Legal Requirements: Must be filed in the correct court, follow procedural rules and provide supporting evidence for urgency or necessity.
Tips for Businesses
Consider interlocutory applications when urgent decisions are needed before a final court outcome. Prepare clear evidence and comply with procedural requirements to improve your chances of success. Consult a lawyer to determine if an interlocutory application is appropriate and to manage risks effectively during ongoing litigation.
Court proceedings are complex, lengthy and commonly include twists and turns to deal with procedural matters. These twists and turns often involve interlocutory hearings, which are like mini hearings within the main proceedings. One party triggers them by making an interlocutory application, asking the court to make certain orders. Court orders are a declaration made by a judge, commanding something to be done, or prohibiting certain activity. Interlocutory applications can seek a wide range of orders, such as:
- urgent assistance from the court; or
- orders about the procedure or timetable of the court proceedings, including orders about obtaining or disclosing evidence.
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.
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