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Topic 11 Interlocutory Notes

Law Notes > Civil Procedure Notes

This is an extract of our Topic 11 Interlocutory document, which we sell as part of our Civil Procedure Notes collection written by the top tier of Monash University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Civil Procedure Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

TOPIC 11: INTERLOCUTORY PROCEDURES

1. General

Interlocutory = things that come up before the actual judgment Whenever the rules state 'court may order' or 'with the court's leave' then party must go to court
for an interlocutory order and use the procedure as set out below. Can apply any time before judgment o Before a writ is filed and served (Injunction) o Before the trial begins (search order) o During a trial (freezing order) o After the trial pending judgment (freezing order) Purposes: o Do not usually finally determine the rights of parties unless e.g. an order to strike out a SoC o Generally preserve status quo between the parties pending final determination e.g. an
interlocutory injunction may become a permanent injunction o They prevent final relief from being undermined by steps taken prior to trial Types of interlocutory orders: o Order for further and better particulars o Order for amendment of pleadings o Order for further discovery o Injunction o Search Order o Freezing Order o Security for costs Supreme Court Act 1986 (4) An appeal does not lie to the Court of Appeal—
o (b) without the leave of the of the Trial Division or of the Court of Appeal, from
a judgment or order in an interlocutory application, as the case requires, except in the
following cases—
 (i) when the liberty of the subject or the custody of minors is concerned;
 (ii) cases of granting or refusing an injunction or appointing a receiver;

2. Procedure­ Affidavit of support

Party who wants order must apply by way of summons, and that will be heard in the practice court
(Order 46.04) It must be in accordance with r46.04 (must be done in Form 46A and filed and supported by
affidavit in support evidence to the Prothonotary) (r46.02) o Form 43.01
 Made in first person
 State place of residence of person
 Divided and number consecutively
 Signed by deponent
 Documents attached will be referred to as exhibits 43.06 o Affidavits in Supports follow 43.01 and 27.03 (general form of court documents)
 An affidavit is a written statement intended for use in litigation sworn to or
affirmed, before a person having lawful authority to administer an oath
 Interlocutory affidavits are an exception to the rule that hearsay evidence is not
permitted (that a deponent depose to facts he or she is able to prove of his or her
own knowledge or his or her own perception) (r43.03(2))

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