Overview
This lecture covers interlocutory procedures in civil procedure, focusing on applications made during legal proceedings that do not finally determine parties' rights, including injunctions, search and freezing orders, and other interim measures.
Interlocutory Procedures: Definition and Jurisdiction
- Interlocutory procedures are court applications made during a case that do not finally determine parties’ rights.
- Distinguished from final orders, they occur between the start of a case and the trial.
- Jurisdiction is usually exercised by judges, associate judges, or registrars, with appeals from non-final registrar or associate judge decisions possible with leave.
- Various rules (UCPR 31, 32, 452, 791, 792, etc.) govern who hears and can appeal these applications.
Nature and Types of Interlocutory Orders
- Interlocutory proceedings assist case management, protect assets, handle evidence, or execute judgment.
- Common examples: disputes over service, disclosure, jurisdiction, privileged documents, and requests for more particulars.
- Applications can be made in writing (form 9) or orally and must be served in advance (generally two business days).
Process and Rules for Interlocutory Applications
- Applications must be filed and served with estimated hearing duration.
- Affidavits are required as proof of facts alleged at hearings.
- Costs are addressed by various rules (681, 680, 684, 686), which set out when and how parties may recover costs.
- Applications may be ex parte (without the other party) in urgent cases.
- Ex parte orders require full disclosure by the applicant and can be reviewed or set aside later.
Injunctions
- Injunction: A court order requiring someone to do or refrain from doing something.
- Can be final or interlocutory, mandatory (do something) or prohibitory (not do something), ex parte or inter partes.
- Requirement: Must show a serious question to be tried and that balance of convenience favours granting the order.
- The applicant must undertake to pay damages if later found not entitled to the injunction.
Search Orders (Anton Piller Orders)
- Allows search, preservation, and seizure of documents/evidence on an ex parte basis if evidence may be destroyed.
- Not a search warrant—cannot force entry and operates on the defendant personally.
- Secrecy is vital when obtaining such an order.
Freezing Orders (Mareva Orders)
- Prevents a defendant from disposing of or removing assets to defeat potential judgment.
- Granted to protect the efficacy of possible court orders.
Interim Preservation, Management, and Custody of Property
- Orders to preserve property, ensure assets remain until judgment, or identify potential defendants.
- Rules 250 and 251 cover inspection, preservation, and perishable property.
Security for Costs
- Defendant can request plaintiff provide security for costs if the plaintiff may not be able to pay if unsuccessful.
- Relevant in cases where plaintiff is non-resident, a nominal party, has changed address to evade consequences, or is a company with doubtful resources.
- The decision to order security for costs is discretionary.
Receivership and Provisional Liquidation
- Courts can appoint receivers to manage or preserve property at risk.
- Supreme Court may appoint provisional liquidators for companies, who realize assets and pay liabilities.
Key Terms & Definitions
- Interlocutory Procedure — A court application during a case that does not finally settle parties’ rights.
- Injunction — Court order to do or refrain from an action.
- Ex Parte — Application heard without notice to the other party.
- Search Order (Anton Piller Order) — Ex parte order for evidence preservation.
- Freezing Order (Mareva Order) — Order preventing asset disposal or removal.
- Security for Costs — Order requiring a plaintiff to provide financial security for potential costs owed to the defendant.
- Receiver — Court-appointed person to manage or preserve property.
- Provisional Liquidator — Appointed to manage a company’s assets ahead of final liquidation.
Action Items / Next Steps
- Review relevant rules (UCPR, Corporations Act) and practice directions mentioned.
- Study the listed factors for security for cost orders in the study guide.
- Prepare for next topic: Disposition without trial.