UCPR - 366 and 367 (Directions), 371 (Effect of Failure to Comply with Rules) Chapter 15 “Interlocutory Proceedings” Flashcards
Directions - The court may give, and a party may apply for, directions at any stage…true of false and if true what section?
True - r 366-367
Directions - The court can give any direction it considers appropriate even if it is consistent with the rules…and in giving the direction the interests of justice are paramount…true or false…if true what section?
True - 367
Failure to comply with the rules is….and does not…… [complete sentence and cite rule]
r 371 - A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.
What is are interlocutory applications?
An interlocutory application is an application for an order which will NOT determine final rights of the parties. Examples include: Application for injunction, particulars, discovery, directions, subpoenas etc.
What is the process for interlocutory applications in Queensland? What section contains the common interlocutory applications?
The application is commenced (r 10-12 UCPR) and supported an evidence in an affidavit (r 390; 430).
R 443 sets out the common applications, and r 444 sets out what is required before an application can be made.
N.B - An interlocutory application which falls outside an application under r 443 can contain hearsay r 430.
What are the interlocutory applications under r 433? (hint 4) and what is the process for applying?
- Application for further and better particulars r 161;
- Application for directions Chp 10 part 1;
- Application for failing to comply with rules Chapter 10 part 2; and
- Any other application for failing to comply with order or direction.
Before making an application per r 443, party needs to send a letter to other side containing matters listed in r 444.
An application can be filed only after receiving the Respondent’s reply per 445 or if the respondent fails to reply within the time frame.
What are examples of ex parte interlocutory orders?
Ex parte interlocutory orders include Anton Piller Order (‘search orders’), Mareva Injunctions (freezing orders), and interim injunctions (i.e. restraining orders).
What is an injunction?
What is the difference between an interim and interlocutory injunction (and how long do they apply)? Provide examples.
Injunctions are a form of relief provided by a court order.
An ex parte interim injunction which is filed in urgent situations…where delay will cause irreparable harm or by giving notice that would cause harm. Usually filed before proceedings or at the time of proceedings being served. If granted will stay in place until the next mention.
Cf interlocutory injection which stays in place for duration of the proceeding.
Examples: Anton Piller Order (‘search orders’), Mareva Injunctions (freezing orders), prohibition order.
What is and, what is the test, to establish a case for an ex parte interim injunction?
Given urgency consider ex parte interim injunction.
The court may grant an ex parte interim injunction where it is satisfied that delay even a short duration, will cause irreparable damage, or by given party notice this will cause harm.
Usually filed before proceedings commence or at the time proceedings are served.
They are governed by the same considerations as Interlocutory Injunctions.
What is the test for an interlocutory injunction? (hint refer to case; 3)
Beecham test for granting interlocutory injunction:-
(1) ‘prima facie case’ that if the evidence stays the same there is a probability the applicant will succeed at hearing; and
(2) ‘balance of convenience’ test - the inconvenience suffered by the applicant if the application is refused is outweighed by the injury suffered by the respondent if the injunction is granted; and
(3) Court has discretion to preserve the status quo.
What is an Anton Piller Order (‘search orders’)? When are they useful? and what is the test for granting one? (Hint: Refer to QLD PD, rules UCPR FCR).
s261A; s261B; SC PD 2 of 2007 (profoma search order and appointment of an independent solicitor to supervise search (and sets out responsibilities) and independent computer expert…search party not include applicant…Respondent’s rights outlined…) ..Respondent’s failure to comply could be contempt…should the defendant wish to assert disclosure would expose criminal pros or civil P…must apply to court for ruling before providing to independent solicitor
r 261A - The purpose anton pillar orders is to secure and preserve evidence and requires respondent to permit person to enter premises for that purpose…which is or maybe relevant to the proceeding. Does not permit forcible entry. Failure to comply could be contempt of court.
The most common use is to obtain evidence that establishes the respondents conduct that constitutes infringement on copyright…but can also be used to obtain documents which demonstrate the defendant is dishonest and unlikely to make honest discovery.
Test: (1) Applicant has strong prima facie case, (2) potential or actual loss or damage to the applicant will be serious if order is not made and (3) there is sufficient evidence Respondent (a) has important evidentiary material (b) real possibility will destroy or not make available for use in proceeding
Anton - Ex parte - court accepted if it was not heard ex parte…the defendant upon service of the app would destroy evidence of copyright infringement occurring
What is an Mareva Injunction (‘Freezing Order/asset preservation order’)? (Hint: Refer to QLD PD, rule UCPR, and case).
r 260A-D; SC PD 1 of 2007 (…NB does not prevent respondent from dealing with assets for payment of living expenses, legal fees, or property disposed off in course of any business).
The purpose of a mareva injuction/freezing order is to prevent a party from disposing of, transferring out of jurisdiction, or diminishing the value of assets to frustrate the enforcement of an order…i.e. merely to preserve property…can’t go beyond that…can apply to third parties..,.
Test: Vaughaun v Bongiorno (solicitor smashing 33 yo gave money for properties) (citing Patterson):
1. Plaintiff has strong prima facie case against Defendant; AND
2. There is a real danger that by way of the D absconding or moving assets, or
interfering with the assets that the plaintiff will not be able to have their judgment
satisfied.
3. Balance of convenience must favour order…
Failure to comply with rules
Failure to comply with rules r – 371-372
The failure to comply with the rules is an irregularity and does not render the proceeding, document, or step taken, a nullity…however the can make an order that the document or step taken is ineffectual.
Basically nothing happens unless a party arks up about it.
An application can be made to the court regarding a party’s failure to comply with the rules…no need for affidavit r 447 corro applies…
Examples of applications: An application to declare that a document was not served in the way required by the rules (i.e. service requirements for non party disclosure), using a subpoena to obtain non party disclosure is not an irregularity and should be set aside…as NPD safeguards likely not complied with..filing an amended pleadings without leave, or taking a step in a proceeding where leave is first required.
