What is an interlocutory application?

Articles > Litigation

What is an Interlocutory Application?

June 17, 2021         Kaitlyn Oliver

Interlocutory applications are made by parties prior to a final hearing in a case to seek a wide range of orders from the court. The application can be made at any stage in the proceeding, sometimes even before proceedings have commenced, to ensure a fair trial occurs. 

Types of Interlocutory Applications 

A party can apply to the court for a range of interlocutory applications. They include: 

Particulars: These mean requests to clarify details in a ‘pleading document’ that are relevant to the court proceedings. The applicant may seek clarification of information in a statement of claim or defence. 

Injunctive Relief: Interlocutory injunctions can be prohibitive in effect and restrain or prevent certain conduct or actions being done. Alternatively, an injunction can be prescriptive and require the other party to do something to redress issues their alleged wrongdoing has caused you. The overall aim of injunctive relief is to preserve the position of both parties in the dispute until a judge resolves the case. 

Discovery: One party can seek orders that a certain category of documents should be discovered. The other party may object on the basis that the request is too broad or that the documents sought are not relevant to the proceedings. 

Subpoenas: These include an order requiring a person to produce documents (subpoena to produce), an order requiring a person to attend a hearing to give evidence (subpoena to give evidence), or an order requiring a person to do both. 

Discontinuance: A notice of discontinuance is generally used when a plaintiff (someone who has started proceedings), or an appellant (someone who is appealing a case) decides to no longer pursue the case. However, it may be filed by a defendant or appellant. After this application is made, the Court will stay the proceedings. Although, if the matter has been set for trial, there may be limits on the time by which it should be filed. The application may be filed because the applicant has realised they do not have a good chance of success, they cannot afford the ongoing legal fees or the parties have come to a resolution. 

Interrogatories: These are specific questions that one party needs the other party to answer. Answers to these questions must be in writing and will often concern the material facts to the dispute between the parties. The court may use one party’s answers as evidence. 

Setting Aside a Default Judgment: A default judgment is sought against the defendant because they failed to respond to the statement of claim. Defendants that do not respond within 28 days to statements of claim risk having a default judgment obtained against them. They are common in cases of debt recovery. 

Process for an Interlocutory Application

  1. Application to the Court   

The first step for an interlocutory application involves the party seeking the orders filing a written application in the relevant court. In New South Wales, a notice of motion will be used to commence the application, although the application form is different in other states and territories. The content of a notice of motion is dictated by the Uniform Civil Procedure Rules 2005 (NSW) and must:

  • Identify the person seeking the order; 
  • If the person is not a party to the proceedings, identify the address for the location of the motion to be served; 
  • Identify who the order will impact; 
  • Clearly identify the order’s purpose; and
  • Propose the costs claimed in the notice of motion. 
  1. Supporting Evidence 

The interlocutory application must have evidence supporting the party’s request. It is usually put in the form of an affidavit to ensure the party is providing accurate and truthful information, accompanied by any relevant documents. 

  1. Filing and Service 

The applicant must file the application form and supporting affidavit with the court and then serve it on the other party. Generally, the documents must be delivered personally to the other party.

  1. Ex Parte Hearing 

The court may approve the orders sought without notifying the other side if necessary to stop the other party from engaging in certain conduct. It is used, for example, where a party has a genuine claim to assets currently owned by the other party and are worried that the other party may move these assets as soon as court proceedings are commenced. An interim injunction could be used to prevent the other side moving the assets and thereby leaving the plaintiff with no remedy if they win the case. 

  1. Interlocutory Hearing 

The court will conduct an interlocutory hearing if the other party does not consent to the orders sought. It is an opportunity for both parties to make their arguments before the court. 

  1. Hearing and Orders 

The hearing will only deal with the specific issue raised in the interlocutory application and not with the issues from the main proceedings. The court will make orders immediately after the hearing or reserve its judgment to give later. 

In Summary

Interlocutory applications have an essential role in protecting your legal rights and ensuring a fair outcome for both parties when undergoing court proceedings. If you require any assistance with making an interlocutory application or have any questions about the process, contact OpenLegal on 1300 337 997 or fill out the contact form on this page. 

About Kaitlyn Oliver

Kaitlyn is a paralegal with OpenLegal while she completes her law degree at UNSW. She has previously worked at Redfern Legal Centre, and the Australian Human Rights Institute.