Interlocutory steps in the proceedings
Interlocutory steps are mini trials conducted before the final hearing, on application by summons and affidavits in support. They can be about a variety of issues including but not limited to: defects in the pleadings, whether a person is a proper party, provision of proper particulars, default in discovery obligations, and compelling answers to interrogatories.
Interlocutory applications increase the costs of proceedings and extend the period the matter takes to be ready for hearing. They are at times necessary and care should be taken in formulating the orders sought and in compiling the evidence in support. They are often technical and vigorously fought in the court.
If the Court has made orders ‘on the papers’, most of these issues will have been dealt with one way or another in those orders. If there has been a first directions hearing, they are also likely to have been anticipated there. It is therefore when the parties have sought to comply with the orders that these issues will arise.
Since the parties may ask for a second directions hearing, and the judge in charge of the relevant list is the person who will want to adjudicate on the matter, it will be a matter of asking the judge’s associate to place the matter back in the list for hearing.
Any interlocutory or other application is to be made on summons unless the Court otherwise orders:
Order 46 The correct form is Form 46A.
The summons will be returnable in the Practice Court if the case is not in one of the specialist lists or divisions.
Summonses must generally be supported by affidavit and be filed and served upon on each person affected by the application:
r 46.05(1) within a reasonable time before the day for hearing named in the summons, and in no case later than 2.00 p.m. on the previous day (or the last day the Registrar’s office was last open).
Affidavits must comply with
Order 43, and in interlocutory applications, may ‘contain a statement of fact based on information and belief if the grounds are set out’:
r. 43.03(2).The application must:
(a) Identify each party or person to whom it is addressed, and state the address of each person who is not a party;
(b) describe the order sought
(c) State the date and time when, and the court where, the application is to be made, and
(d) state the name of the solicitor who issues it.
There is no requirement to specifically claim costs in the motion but it is always good practice to seek the appropriate costs order.
An application can be served on a party’s solicitor or address for service provided in the their Notice of Appearance.
An application need not be personally served if the person on whom it is to be served: ordinary service is sufficient:
r. 6.07.
If an application has been served on a party and there is no appearance the Court may hear and dispose of the motion in the absence of the party if satisfied that the summons was duly served:
r. 46.07.
Applications not in the specialist lists are generally listed at 9.30 am before the Master in the Practice Court. Applications in the various lists must be listed before one of the judges in charge of those lists. Hearing days vary.
