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. 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 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.

Once you make the interlocutory application, the other side may consent to the orders sought, and the court will make the orders. If they do not consent, then you can hold an interlocutory hearing. This allows the court to hear arguments from both sides before making a decision.

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 a statement of claim or defence.

A statement of claim contains the allegations against the defendant and the relief which the plaintiff is seeking.

Discovery

Orders to compel a party to provide certain documents sought by the other party through the discovery process.

For example, one party may object to discovering a certain category of documents, claiming the request is too broad or that the documents are not relevant to the proceedings.

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.

Where there was a valid reason for failure to lodge the defence, the party can seek orders that the judgment is set aside, allowing them to file the defence. 

Steps to Make an Interlocutory Application

You usually make interlocutory applications after issuing court proceeding but before the final hearing date. The procedure to make an interlocutory application is set out 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. Filing and Service

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. Reparation 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 documents might be a chronology, setting out a timeline of relevant events.

Further, the hearing will only deal with the interlocutory application and will not deal with the main proceedings’ issues. Therefore, if the other party does not attend, the court will make the orders that you applied for.

7. Orders 

Depending on the application’s and matters 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.

If you have any questions about interlocutory applications, the process of court proceedings or would like other legal advice, contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What is an interlocutory application?

It is an application to ask the court to make certain orders. Orders are commands by a judge, declaring something to be done or prohibiting something from being done. 

When should an interlocutory application be used?

You can use an interlocutory application to help keep a case on track or to protect your rights. They stop parties from acting unethically and are often used when one party believes the other has not complied with their court procedure obligations. 

What is an interlocutory hearing?

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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