Order 46 - Applications Flashcards
46.01 -Application of Order
to an interlocutory or other application in a proceeding
46.02 Application by summons
(1) Application made on notice to any person shall be on summons, unless court otherwise orders
(2) App is considered made when summons is filed in accordance with 46.04
(3) App not made by summons is “made” when comes on for hearing
46.03 Notice of application (to any person with sufficient interest)
On the hearing of application, Court may order that person making application give notice of it to any person having sufficient interest.
46.04 Form and filing of summons (46A - to proth or Ass J associates) - seal sufficient number of copies with Court seal
(1) In Form 46A (2)(a) Shall be filed with appropriate prothonotary (where made to judge) or (b) Ass J’s associate (where made to AssJ)
(3) Upon filing of a summons, or at any later time on request of the applicant, a sufficient number of copies of the summons for service and proof of service shall be sealed with the seal of the Court.
46.05 Service
(1) Shall serve summons and any affidavit in support to every person to whom notice of app is to be given (2) within a reasonable time from hearing and in no case later than 2pm on the previous day.
(3) P may serve any summons on a D personally before appearance.
46.05.1 Day for hearing
(1) Summons which has not been served may on the request of the filing party, be amended on or before the day for hearing named in the summons to another day. (2)(a) if heard by judge, by Proth or Associate; (b) if by AssJ; the Proth or their Associate. (3) only one amendment allowed. (4) 36.01 not limited
46.06 Adjournment
(1) Crt may adjourn application hearing on such terms as it thinks fit.
(2) (a) Associate can by consent adjourn hearing to date/time and reserve costs (b) shall record same on indorsement in court file
(3) Court can thereafter make costs order as it thinks fit.
(4) R 63.22 shall apply to costs reserved under paragraph (2) as if the costs were reserved by order of the Court.
46.07 Absence of party to summons (if addressee absent, can determine application, or dismiss if applicant absent)
(1) Where person to whom summons is addressed fails to attend, court may hear application if satisfied summons was duly served.
(2) Where the applicant fails to attend, court can dismiss the application or make such an order as it thinks fit.
46.08 Setting aside
Court may set aside/vary order which affects person where the application for the order: (a) Was made on notice to that person, but the person did not attend the hearing of the application; or
(b) Was not made on notice to that person.
