Civil Procedure - Interlocutory Applications

Question 1

What is an interlocutory application?

Answer 1

An application where the order sought will not determine the ultimate question between the parties.

(e.g an application to extend time)

Question 2

Who has the power to set aside, cary or discharge the interlocutory orders?

Answer 2

The original court.

Question 3

Can a court entertain a second application for the same relief once an application has already been refused?

Answer 3

Yes.

BUT if there is no change of circumstances, a second application may be considered an abuse of process and dismissed.

Question 4

How do you make an interlocutory application?

Answer 4

UCPR Rule 31

FCR 17.01

Question 5

What form is the evidence to be given in for an interlocutory application?

Answer 5

Affidavit.

Question 6

In Qld what must a party do before filing an interlocutory application?

Answer 6

Must state in a letter to the other party:

• The applicant’s complaint
• A brief statement of the facts
• Why the applicant should have the relief
• A time (at least 3 business days) for the respondent to reply to the letter
• That the letter was written under CH11/P8 of the UCPR: Rule 444

Question 7

Who does the letter of notice need to be sent to?

Answer 7

Every person who could be affected by the relief sought UNLESS notification would cause the applicant undue delay, expense or inconvenience or would unduly prejudice the applicant.

Question 8

What does a respondent need to do if they receive a letter of notice?

Answer 8

Reply.

Stating if/what they propose to do in response to the complaint.

OR

If applicable why the applicant should not have the relief sought.

Response should be sent to EVERY person who should have received the applicant’s letter, UNLESS that would cause the respondent undue delay, expense or inconvenience, or would unduly prejudice the respondent.

Question 9

Who needs to be served with interlocutory application?

Answer 9

UCPR Rule 41
FCR 17.01

Any party who would be affected by the relief sought.

Question 10

Can the court dispense with service?

Answer 10

Yes if urgency, or irreparable damage would be done.

Question 11

When can an applicant apply to court for interlocutory injunction?

Answer 11

Rule 447

Only after receiving respondent’s reply OR if respondent fails to comply within the nominated time.

Question 12

Give 3 examples of an ex parte interlocutory order.

Answer 12

Rare.

1.Anton Pillar ORder

2. Mareva injunction
3. Interim injunction