7. Interlocutory Applications and Ending proceedings early

Question 1

When is a matter ‘interlocutory’?

Answer 1

Where the order sought will not determine the ultimate question in the proceedings, then interlocutory.

• Judgments on preliminary questions can be final if they finally decide that issue (e.g. where liability and damages hearings are split): McSweeney
• Examples: granting or refusing extension of time; striking out pleadings (Kowalski); summary and default judgments (esp. where crt has power to recall the order under the rules) (Kowalksi); order dismissing a proceeding on the ground that it is frivolous, vexatious or there is no reasonable COA (Alexander).
• But To be an interlocutory order, it must at least decide the issue that was the subject of the application: Aon Risk

Question 2

What is the process for IA in QLD?

Answer 2

1. Must be in approved form, signed and served at least 3 days before hearing: r31 UCPR
2. Evidence by affidavit: r390; or per rr443-444 (correspondence where e.g., further and better particulars sought)
3. Hearsay evidence on ‘information and belief’ permitted in civil proceedings, provided basis for belief and source of information is identified r430 UCPR
4. Rules 443-444 process applies to applications:
   * for further and better particulars under rr 161, 163 UCPR;
   * under Chapter 10, Part 1 (Directions), or Part 2 (Failure to comply with rules);
   * relating to a failure to comply with an order or directions of the crt.

Question 3

What is the process for IA in FCT?

Answer 3

**1. Party who wants to apply for an order in a proceedings already started must file an IA, in approved form, if appropriate, supported by affidavit, and served at least 3 days before hearing, but can make an oral application at a hearing: r17.01 FCR

2. Hearsay evidence on ‘information and belief’ permitted in all proceedings, provided basis for belief and source of information identified: s75 CEA.
3. Provided the procedures in r17.02 are followed, an IA does not need to be accompanied by an affidavit if pty wants to rely on correspondence or other documents (that are not in dispute): r17.02FCR
4. Certain applications may be determined without oral hearing: s20(4) FCA: including
   * leave/special leave to start proceedings;
   * extension of time to institute proceedings;
   * leave to amend grounds of an application or appeal;

Question 4

What are the UCPR rules regarding evidence on interim/IA applications?

Answer 4

1. No affidavit: for better particulars (r161 UCPR), directions (rr366/367), order re failure to comply (r371 UCPR) and other app re failure to comply with an order, process of exchange of corro is followed: r443-447 UCPR; if outside r443 UCPR:
2. Affidavit required: IA with supporting affidavit: r390 UCPR

Question 4

What are the FCR rules regarding evidence on interim/IA applications?

Answer 4

1. r17.01 FCR: must file IA with affidavit (affidavit can contain st’ments based on info & belief, if sources of belief/info included; but
2. r17.02 FCR: no need for affidavit, if relying on corro/docs that are not disputed;
3. s20(4)FCA: app re leave to institute/extend time to institute proceeding, amending grounds of app or staying decision of tribunal - can determine IA without oral hearing

Question 5

Ex parte applications in IA

Answer 5

1. An IA may be heard and determined in the absence of a party, if service not required on them, or party does not appear: r17.04 FCR
2. Duty of candour: affidavit and submissions in support of application must make full and frank disclosure all matters which could be relevant, including matters which would be raised by the opposing party if they had been present. Facts must not be withheld, nor the court in any way mislead, either by what is said or left unsaid: Thomas Edison. BUT need not disclose remote facts which may, only in unlikely events, become relevant. Failure to comply may result in orders being dissolved, even if inadvertent: Westwind Air Charter
3. Failure to bring material facts to the Courts attention: may result in orders being dissolved, even if the material fact would not have ultimately changed the judge’s mind: Myrtle. If orders discharged, fresh application may be made on the merits (but court may decline if previous non-discourse was serious).

Question 5

What does the SC PD for Mareva Injunctions?

Answer 5

Supreme Court Practice Direction No 1 of 2007 (Freezing Orders): sets out general guidance, draft orders including can apply to a 3rd party, duration of the orders, value of the assets (not exceed claim), and that affidavit in support needed and can be on info and belief.

Expanded: alslo re, draft undertaking as to damages, including that:
1. respondent to application for freezing order (FO) may be person alleged to be liable, or third party who has possession, custody, or control, or even ownership of assets, *minimum requirement for FO against 3rd pty found in r260D UCPR;
2. *duration of FO made without notice should be limited to hearing date of application;
3. value of assets covered by FO should not exceed likely max amount, including interest and costs;
4. FO should exclude legitimate dealings by R, e.g., living expenses etc;
5. Crt can make ancillary orders, e.g., disclosure of assets;
6. Crt can mke FO before COA accrued and can make free-standing FO in aid of foreign proceedings;
7. Affidavit in support should include matters e.g., basis for claim of relief and amount of claim, if notice ex parte – known possible defence.

Question 6

What is the test for a Mareva/Freezing order?

Answer 6

1. Discretionary remedy described by HCT as a ‘dramatic remedy’ which should not be granted lightly: Cardile v LED Builders
2. Test per Vaughan v Bongiorno: in addition to taking into account all relevant considerations:
   * P has a prima facie case against the D; and
   * there is a real danger that, by reason of the D’s absconding, moving the assets out of the jurisdiction, dealing with the assets in the jurisdiction or otherwise dealing with the assets, the P, if they succeed, will not be able to have their judgment satisfied.
3. per Vaughan, the test for a ‘prima facie’ case is the same as that in Beecham concerning interlocutory injunctions generally: prima facie case means ‘that if the evidence remains as it is there is a probability that at trial the P will be held entitled to the relief’.
4. ‘Probability’ does not require a better than 50% chance of success, and need to also consider whether evidence put forward would be admissible at trial in its current form: Vaughan

Question 7

Restrictions on Mareva/Freezing orders under SP PD No1 of 2007?

Answer 7

SC PD No1 of 2007 - Orders should be expressed no wider than absolutely necessary and should preferably specify the particular assets to which they apply. They should allow Rs to pay regular personal and business expenses, reasonable legal costs etc. The value of the assets frozen should not exceed the claim, including interests and costs

Question 8

What is the Practice Direction for Anton Pillar orders?

Answer 8

Supreme Court Practice Direction No.2 of 2007 (SC PD No.2 of 2007): sets out general guidance, draft orders, including in relation to attendance by an independant solicitor and other people, the scope of the search order re locations and categories of property, and dealing with privilege claims.

Expanded:

Can also deal with draft undertaking as to damages and requirements for supporting affidavit*, including that:
1. the search party must include an independent solicitor;
2. number people permitted in search party should be as small as possible;
3. affidavit in support of SO should include description of things or categories, to which order sought (incl why real possibility things will be destroyed); location; reason for order; prejudice loss or damage likely if order not made; details of independent solicitor and id of any persons likely to be at the premises who could be considered vulnerable;
4. responsibilities of the independent solicitor (incl. serve order, explain terms, list items being removed, take custody of things, submit report to the crt and attend hearing and bring things to the crt;
5. SO may require undertaking as to damages;
6. SO is subject to crt determination as to any claim of privilege against self-incrimination.

Question 9

What is the test for an Anton Piller/search order?

Answer 9

• An ‘extraordinary remedy’ which must not be misused: Simsek. Designed to preserve vital evidence: Authors Workshop.
• Test per r261B UCPR/r7.43 FCR (reflecting principles laid out in Anton Pillar KG v Manufacturing Processes Ltd):
  1. Applicant has a strong prima facie case on an accrued COA;
  2. the potential for actual loss or damage to the applicant will be serious if the SO is not made; and
  3. there is sufficient evidence to show that the R possesses the important evidentiary material, and there is a real possibility that the R might destroy the material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding.

Question 9

What orders can be made for Anotn Piller/search order applications?

Answer 9

• Rules provide for general matters to be included in terms of SO, plus power of the Court to include any other provisions considered appropriate: r261D UCPR; r7,45 FCR
• If the court makes a SO, it must appoint at least one independent solicitor to supervise the enforcement of the order: r261E UCPR; r7.46 FCR
• The R need not be a party: r261 UCPR; r7.41 FCR

Question 10

What is the UCPR rule for the inspection, detention and preservation of property?

Answer 10

r250 UCPR

1. Court may make an order for the inspection, detention, custody, or preservation of property, if: r250(1) UCPR
   a. the property is the subject of a proceeding or about which a question might arise; or
   b. inspection of the property is necessary for deciding an issue in the proceedings.
2. **Applies whether or not the property is in the possession, custody or power of a party and order may authorise entry to **access property; to take sample; take photos; conduct experiment; observe process; observe/read images or info; photo or otherwise copy the property: r250(2)(3) UCPR
3. The order can impose any conditions court considers appropriate, e.g., costs/giving security, and the court can vary or set aside the order: r250(4)(5)

Question 11

What is the test for an order under r250 UCPR?

Answer 11

1. There needs to be a connection between the property and the issues in the proceeding.
2. An order for inspection will not be made unless there are sufficient grounds for making the order. This requires some evidence that the plaintiff’s rights are being infringed and that an inspection will facilitate proof of the claim: Evans Deakin

• The two subrules under r250 are alternatives and provide for two situations in which the crt has power to make an order:
  a. relating to property that is itself central to the proceedings; and
  b. having an application to a potentially broader class of property that is neither the subject of a proceeding nor the subject of a question in the proceedings. It extends to property that may be of evidential value only.
• Where the direct connection to the proceeding is absent, a higher threshold of necessity is imposed. That is, inspection of the property may only be ordered if it is necessary for deciding the issue in a proceeding. Wilson Ceramics

Question 11

r250 UCPR - consideration when making orders?

Answer 11

1. Even where it might be accepted as reasonable for an order to be made under r250, limitations on the width of any such orders may still be appropriate.
2. With the purpose of r250 being to preserve the subject matter of the action pending the judicial determination of the action.

GE Automotives

Question 12

What strike out applications are available on an IA? What are the grounds?

Answer 12

QLD:
1. Strike out of particulars: r162 UCPR
2. Strike out of pleadings: r171 UCPR

• Grounds for strike out: tendency to prejudice/delay fair trial of proceedings; is unnecessary or scandalous; is frivolous or vexatious; otherwise an abuse of process.
• May also strike out pleadings for disclosing no reasonable COA/Def: r171(1)(a) UCPR

FCT:
Strike out of pleadings ** where scandalous, frivolous or vexatious; evasive or ambiguous; does not disclose reasonable COA/Def; or otherwise an abuse of process: r16.21** FCR

Question 13

What is the effect of a strike out?

Answer 13

1. Purpose of strike out is to compel parties to comply with the rules of pleading – different to summary judgment: Chapman v ABC
2. Will generally result in leave to amend unless application also made for summary judgment or dismissal of proceedings as abuse of process etc: Coshott
3. If pleadings struck out (but no summary judgment sought/given), proceedings remain on foot and parties entitled to file revised pleadings. However, if a defence is struck out in its entirety, P can apply for default judgment where time to file defence has expired and no other orders made.

Question 14

What are the UCPR rules regarding Summary Judgment?

Answer 14

1. Power: Court may give summary judgment upon application for the Plaintiff or Defendant: rr292-293 UCPR
2. Timing: P/D may apply any time after D filed NOID: rr292-293 UCR
3. Effect: Summary judgment does not prevent continuation of any part of the proceedings not disposed of: r294 UCPR

Question 14

What is the test for a strike out application?

Answer 14

1. In an application to strike out pleadings, the court accepts the alleged facts as true. In light of those facts, the question is whether the pleading identifies the issues, discloses an arguable COA or Def, and apprises the other party of the case to be met.
2. whether any deficiencies can be appropriately rectified by particulars or other means: Noyw v Gwilliam. Unlikely to be granted where object to pleading is sufficiently met: John Holland v MUA
3. Pleading that is unintelligible, ambiguous, vague or overly general (such that it fails to clearly state the issues) is liable to be struck out as offending the rules of pleading: Barr Rock Pty Ltd
4. A pleading will be ‘embarrassing’ where it requires a party to make a choice as to the meaning of a pleading: FWO v Eastern Colour

Question 15

What are the FCR rules regarding Summary Judgment?

Answer 15

1. Power: crt may give summary judgment upon application by the P/D: s31A FCA
2. Timing: no timeframe stipulated in r26.01 FCR, but if IA filed for SJ, must be served at least 14 days before hearing of IA: r26.01(3) FCR.
3. Effect: Summary judgment does not prevent continuation of any party of proceeding not disposed of: r26.01 FCR

Question 16

What is the test for summary judgment (QLD)?

Answer 16

1. NOID pre-condition to application for summary judgment: r292(1) (otherwise, if not NOID need to apply for a default judgment)
2. Upon application the crt may give summary judgment if satisfied that:
   * the P/D has no ‘real prospect of successfully’ defending or prosecuting proceeding, or any part; and
   * there is no need for a trial of the claim or part of the claim: rr292-293
   * Court must be satisfied of both matters in rr292-293 (2)(a)(b) above.
3. The expression ‘no real prospect’ directs the court to the need to see whether there is a realistic as opposed to ‘fanciful’, prospect of success: Shaw**
4. A party must not be deprived of an opportunity for trial under guise of achieving expeditious finality: QUT v Project Constructions. In considering whether to give summary judgment, Court must keep in mind why the interests of justice usually require the issue to be investigated at trial: Gray v Morris
5. If triable issue of fact or law, should generally be refused: Thesues Exploration
6. Summary Judgments are reserved for cases where there is no need for a trial.
7. Discretion: even where two elements have been satisfied, the court retains a discretion whether to allow summary judgment: Bolton
8. Quantum: disputes as to quantum alone will not prevent the making of a summary judgment but can be resolved in the way the court directs under rr292(2) and 293(2) UCPR

• The rules must be applied in the context of the overriding purpose of the UCPR to “facilitate the just and expeditious resolution” of the matter in dispute.
• Where a possible defence is potentially available and it is not merely a fanciful prospect, and where there is a need for a trial in which factual issues relevant to the defence could be investigated, should not be granted, even if there are serious questions about whether the defence would ultimately be made out: Shaw

Question 17

What is the test for summary judgment (FCT)?

Answer 17

Rule 26.01 FCR enables a party to apply for summary judgment, and the Crt may give summary judgment (power under s31A FCA) if:

1. applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding (s31A FCA);
2. proceeding is frivolous or vexatious;
3. no reasonable COA is disclosed;
4. proceeding is an **abuse of the process **of the crt;
5. respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

• The application must be accompanied by an affidavit stating the grounds (hearsay rule doesn’t apply, can be based on belief and info): r26.01(2)

‘No reasonable prospect of success’ considered in Spencer v Commonwealth:

1. Must give full weight to the expression ‘no reasonable prospect’ as a whole;
2. The combined effect of the criteria in s31A(2) and the stipulation in s31A(3) that a** case need not be ‘hopeless’ or ‘bound to fail’ to have no reasonable prospect of success** is that the **enquiry is not directed to whether can be certain that the proceedings would fail.

to** whether a certain and concluded determination can be made that the proceeding would necessarily fail;

3. The importance of these considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact: Spencer
4. It remains orthodox that the exercise of powers to summarily terminate proceedings must always be attended with caution: Spencer

• Test under s31A less restrictive than under earlier authorities, but discretion must still be exercised with caution: Eliezer
• Summary judgment will be given if the evidence satisfies the requirements of this rule and there is no issue of fact involved and the points of law raised are clear and unarguable: Silverton Ltd v Harvey

Question 18

What are the possible outcomes from a summary judgment?

Answer 18

1. Judgment given;
2. Application dismissed and P allowed to prosecute, or D allowed to defend clam (either unconditionally or on terms – e.g., security for costs where defence appears dubious);
3. Defective pleadings struck out and allowed to file new amended pleadings;
4. Judgment for part of claim.

• An order summarily dismissing proceedings is an interlocutory order, and requires leave to appeal: Weatherall

Question 19

What are the FCR in relation to dimissal or discontinuance?

Answer 19

rr26.11-26.12 FCR

1. Withdrawal: r26.11 FCR party may, at any time, withdraw a plea in the party’s pleading by filing a notice of withdrawal, the notice MUST:
   a. be in accordance with Form 47;
   b. state the extent of the withdrawal; and
   c. if by consent – be signed by each consenting party: r26.11 FCR.

• A party MUST NOT withdraw an admission or any other plea that benefits another party, whether in a defence or a subsequent pleading, unless the other party consents or unless the Court gives leave: r26.11(2)

2. Discontinuance: r26.12FCR : party claiming relief may discontinue a proceeding in whole or in part by filing a notice of discontinuance;
   a. If no leave or consent: at any time before the return date of the OA; or if proceeding continuing on pleading – before close of pleading; or
   b. with the consent of opposing party; or
   c. at any time with the leave of the crt.

• The notice of discontinuance must:
  a. state the extend of discontinuance; and
  b. if by consent, be signed by the consenting party.
• Costs: unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance is liable to pay the costs of each other party to the proceeding for the discontinued claim/part: r26.12(7)
• Generally, an applicant will be granted leave to discontinue, provided no injustice is caused to the respondent(s): Tucker
• Service: a party who files a notice under rr26.11 or26.12, must as soon as reasonably practicable, serve a copy on each other party: r26.23 FCR
• Effect: a discontinuance under these rules cannot be pleaded as a defence to a proceeding in relation to the same, or substantially the same, cause of action: r26.24 FCR. But the Court may permit a party to discontinue on terms inconsistent with this rule.
• Discontinuance is an act of the moving party, whereas dismissal is an act of the court.

Question 19

What are the UCPR rules that govern offers to settle?

Answer 19

rr352-365 UCPR

Defined as: r352 UCPR: means an offer to settle made under Part 5 UCPR, in a proceeding started by claim; or ordered to continue as if by claim; or started by OA if direction made for pleadings or other documents defining the issues.

Power: r353 UCPR - a party may serve, in writing and noting it is made under Part 5 of the UCPR offers to settle on the conditions specified in the offer: r353

Effect: r356 UCPR - an offer made under Pt 5 is taken to be an offer made without prejudice, and should not be construed as an admission of liability.

Capacity: A person under a legal incapacity can make or accept an offer in accordance with: r359 UCPR

Multiple beneficiaries: r363 UCPR.

Timing: may be served where jury/started by claim – any time before verdict; and otherwise – at any time before final relief granted; or if there is a judgment conditional on assessment of damages, any time before damages are assessed: r354 UCPR

Withdrawal/end: pty must specify a period not less than 14 days during which the offer is open and the offer cannot be withdrawn during this period without the crts leave: r355 UCPR
* An offer can be accepted during this time, and any time before any application for leave to withdraw is decided: r355(3) UCPR
* The court may not (despite any other provisions under the Rules) extend the time for accepting the offer: r355 UCPR.

Disclosure: r357 UCPR: subject to r365 (where pty does not comply) pleading or affidavit (unless affidavit is in support for an application to withdraw offer) should not refer to offer; and the offer must not be filed; if an offer is not accepted, should be no communication about the offer until all questions of liability/relief, other than costs, have been decided;

Acceptance: can only accept offer by written notice, counter-offer does not mean original offer lapses, if offer accepted court can include conditions of offer into orders: r358 UCPR

Costs implications: there are costs implications depending on acceptance/or not, in light of any finidings following a hearing: rr 360-361A UCPR

Non-compliance: If a party does not comply with an accepted offer, the other party may apply to the crt for, and the crt can make, an order on the conditions of the offer, or continue the proceedings as if an offer had not been accepted: r365 UCPR