Litigation is not as straightforward and simple as some hope it might be. Both parties often have to deal with conduct or events which make their case much harder to argue. Fortunately, interlocutory applications are a helpful tool for when there is a difficulty during the case. This Legal Kitz blog will help you find out the different kinds of interlocutory orders available, and how you might go about applying for one.
What are interlocutory applications?
An interlocutory application is a request submitted by a party within ongoing litigation, which asks the relevant court to make a certain interlocutory order. Interlocutory orders are mostly necessary to ensure that parties act fairly, and keeps the litigation moving forward smoothly to avoid unnecessary cost and time. Parties will often submit an interlocutory application where they feel the other party is not complying with the court proceedings or deadlines.
What are the types of interlocutory applications?
Injunctive Relief
A party may submit an interlocutory application for an interlocutory injunction to restrain the other party from continuing with certain conduct.
Some conduct may change the position that the parties are in whilst the dispute is on-going, which may frustrate court orders. An example of this type of conduct is completing a sale or terminating a contract.
Particulars
A party may also submit an interlocutory application for a court order to compel a party to provide particulars (clarifying details) which are relevant to the court proceedings. This will be a clarification of information in a statement of claim or defence.
Discovery
Interlocutory applications can also include orders to request the discovery of a certain category of documents. The other party has the right to object, on the basis that the request for discovery is either too broad or not relevant to the proceedings.
Subpoenas
Subpoenas are orders which require a person to produce documents, to attend a hearing to give evidence, or both. As above, the other party has the right to object against the orders on the basis that the documents sought
Interrogatories
A party may submit an interlocutory application for orders to compel the other party to answer certain questions, provided they are necessary evidence to determine a position on a matter in dispute. The answers to these question must be submitted in writing, must be necessary, and must help provide a fair trial.
Medical examination
Where there is a concern about the medical condition of another party, and about how it may impact the matters in dispute, one party may submit an interlocutory application for the other party to submit to a medical examination.
Setting aside a default judgment
A default judgment may be brought against a defendant where they have failed to respond to the statement of claim within 28 days. An interlocutory application may be submitted to overturn a default judgment where the other party has failed to lodge a defence.
Discontinuance
Finally, an application may be submitted by a plaintiff or appellant where they have decided they would no longer like to pursue the court proceedings. This may be because they do not have a good chance of success, the parties have come to a resolution outside of litigation, or they can no longer afford the legal fees.
When responding to an interlocutory application, the responding party will also need to provide an affidavit to ensure they are providing accurate and truthful information within the relevant documents.
What are the steps to make an interlocutory application?
1. Application to the court
To submit an interlocutory application, the application documents will need to be submitted to the relevant court within your jurisdiction.
It is important that the application be clear. It should include:
what the seeking party wants, and the section or rule of the relevant Act which allows the court to grant the orders;
why it is necessary for the litigation; and
the required evidence supporting the reason the orders are necessary.
2. Supporting evidence
The application must include all relevant evidence within a supporting affidavit from the party seeking the order. This is to ensure the party is providing accurate and truthful information.
3. Filing and service
The application form and supporting affidavit must be submitted to the court and delivered personally to the other party, or their lawyers.
4. Ex parte hearing
If the orders are urgent, or where there is a risk that the other party may engage in conduct which would frustrate potential judgments, the party who seeks orders may request an interlocutory hearing be ‘ex parte’ (without the other party attending).
5. Interlocutory hearing
If the other party does not consent to the orders sought, the court will conduct an interlocutory hearing. Depending on the circumstances of the litigation and the application, this hearing may be quick or lengthy. Both parties will have an opportunity to make their arguments before the court, and question any witnesses if relevant.
The hearing will only deal with the specific issue raised in the application. It is helpful to prepare written submissions setting out arguments with reference to the evidence, and setting out a timeline of relevant events.
6. Orders
The court may decide to make orders immediately following the hearing, or reserve their judgment until later. The interlocutory orders sought, if successful, will also be made at the same time as the judgement.
Legal advice
If you need any assistance with why and how you might submitting interlocutory applications, Legal Kitz is here to help! Click here to book your free 30-minute consultation.