#7372 - Topic 11 Interlocutory - Civil Procedure

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

  • Before a writ is filed and served (Injunction)

  • Before the trial begins (search order)

  • During a trial (freezing order)

  • After the trial pending judgment (freezing order)

• Purposes:

  • Do not usually finally determine the rights of parties unless e.g. an order to strike out a SoC

  • Generally preserve status quo between the parties pending final determination e.g. an interlocutory injunction may become a permanent injunction

  • They prevent final relief from being undermined by steps taken prior to trial

• Types of interlocutory orders:

  • Order for further and better particulars

  • Order for amendment of pleadings

  • Order for further discovery

  • Injunction

  • Search Order

  • Freezing Order

  • Security for costs

• Supreme Court Act 1986(4) An appeal does not lie totheCourtof Appeal—

  • (b) without the leave of theof the Trial Divisionor ofthe Courtof Appeal, from ajudgmentor 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)

  • 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

  • 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))

  • Affidavits failing to state the source of the information or belief are regarded as inadmissible or of little weight. But can use ‘second-hand’ hearsay where the deponent states that he or she was informed by another person who was told by yet another person who saw the relevant event occurring. Hardie Rubber Co Ltd v General Tyre and Rubber Co

• When swearing an affidavit, the person administering the oath should:

  • Ask the deponent who they are

  • Ensure they have read and understood the contents of the affidavit

  • Inquire whether they consider an oath to be binding

  • Hand them the bible

  • Sign each page of it

• Solicitors duty when preparing affidavits:

  • Ethical duty to ensure that an affidavit accurately and truthfully presents a statement of the relevant facts for the information of the court in which it is filed Legal Professional Act 4.4.2

    • Must terminate if the client will not provide information or provides false info and prohibits the lawyer from changing it

• A hearing date in relation to the order is granted:

  • You serve a summons (ordinary service – 6.07) on the other party to inform them of the date and application. However need only serve the document to persons with sufficient interest (r46.03)

  • Both parties will be heard at the interlocutory hearing in the practice court (by judge or associate judge)

  • the party who is aggrieved can challenge an interlocutory order, can ask for it to be discharged, or at least varied (r46.08)

• However for urgent applications, or where the other side can’t be trusted

  • Ex parte applications are accepted

  • No service is required

  • The other side does not attend

Ex parte applications

• Ex parte applications - two special conditions are imposed, as courts are cautious

  • Full and Frank disclosure – of all your arguments, and all arguments the other side would put if it were present

  • Costs undertakings – that you’ll pay the other side’s costs if the application turns out to not be warranted

  • In all other cases the interlocutory applications will be inter partes

• In NAB v Bond the Supreme Court of Victoria suggested the following in considering whether to grant ex parte relief

  • How urgent is it?

  • When could notice first have been given?

  • Would irreparable damage flow from making an ex parte order? Should undertakings be exacted?

  • How long should the order run?

  • How is the opposite party to be notified of the order?

  • Should there be liberty to apply to set aside the order?

  • How ought costs be resolved?

• Can be reviewed and set aside by a court under both the inherent jurisdiction and the rules of court 46.08

  • The balance of hardship and material non-disclosure will be relevant considerations in the exercise of discretion.

  • Can be varied and set aside by consent of the parties

3. Injunctions

• Court may grant an injunction at any stage in a proceeding or, in urgent cases, before the commencement of a proceeding (r38.01)

• In an urgent case, the Court may grant an injunction on application made without notice (ex parte) (r38.02, 4.08)

• Will either be:

  • Mandatory – requiring the other side to do specified acts

  • Prohibitory – requiring other side to refrain from specified acts e.g. a quia timet injunction with respect of an anticipated or threatened wrong

• Interim Injunction

  • Victorian Supreme Court have an inherent jurisdiction to grant interlocutory injunctions to preserve the status quo: Supreme Court Act s37

  • To obtain an injunction, plaintiff must establish:

    1. There is a serious question to be tried

       • The plaintiff must make out a prima facie case: Beecham Group Ltd v Bristol Labaroties Pty Ltd

       • If merely pecuniary interests are involved, ‘some’ probability of success is enough.

       • Must be a legal or equitable right to be determined at trial in order to base an interlocutory injunction ABS v Lenah Game Meats

       • The stronger the serious question to be tried, the less emphasis need be placed on the balance of convenience favouring the plaintiff over the defence

       • Mandatory interlocutory will not be satisfied unless the court is satisfied with a high degree of assurance that at trial it will appear that the injunction was properly granted

    2. Damages are not an adequate remedy

    3. That the balance of convenience favours the granting of an interlocutory injunction

       • Whether the inconvenience or injury which the P would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. In deciding the balance of convenience, courts look at the following discretionary factors:

         • The inconvenience & hardship that would be occasioned to the parties

         • Any acquiescence or delay on the part of the applicant

         • Whether claim is frivolous or vexatious

         • Desirability of preserving the status quo or preventing irreparable injury pending a full hearing ‘the state of affairs in the period immediately before issue of the writ’

         • An injunction is unlikely to be granted where other forms of relief are an adequate remedy

         • Impact on third parties

• Final Injunction

  • When you ask for a final injunction, you have to show that you win – that your cause of action is successful, that you were right, have to show that damages are insufficient

4. Search orders (previously Anton Piller orders)

• A search or is an order in anticipation of proceeding, with or without notice to respondent, for the purpose of securing/preserving evidence, which requires the respondent to permit entry to premises to secure/preserve evidence

• History:

  • The Anton Piller case established the inherent jurisdiction of the court to make these kinds of orders Anton Piller (AP) v Manufacturing Processors (MP)and Others

  • Condition per case:

    • Extremely strong prima facie case

    • Very serious potential damage for applicant

    • Sufficient evidence that the respondent has the relevant evidence

    • Real possibility that the evidence would be destroyed if an application made inter partes

    • Here there was evidence of dishonesty (for such an order, evidence that the party would frustrate the order if given notice, would be required)

  • AP orders began to be granted more freely, and they became an oppressive tool of abuse, and thus the rules became quite restrictive

• Requirements:

  • In an urgent case, the Court may grant an injunction on application made without notice (r37B.02(1))

  • Must be strong grounds for thinking that the D will otherwise destroy or remove such evidence (usually requires evidence of misconduct) (r37B.03(2)(c))

  • Must have a strong prima facie case, and you want to protect something from being destroyed, disappearing (not money) (r37B.03(1)(a))

  • Potential for actual loss/damage must be SERIOUS (r37B.03(1)(b))

  • There is sufficient evidence that the respondent has the relevant evidence (r37B.03(1)(c))

  • Need full and frank disclosure by putting all relevant evidence before the court, both supporting his case and the argument that an order should not be franted.

a) Procedure

• Form 37BA (r37B.02(2))

• Must provide an undertaking as to damages (r37B.03(3))

• Affidavit in support of search order must be produced, must (37B.03(2)):

  • (a) & (b): Provide information on how many people will search, who, what premises (address/location), and what things

  • (c) State why...