welcome to laws 13017 civil procedure topic 8 this is interlocutory procedures I'm Andrea Turner topic 8 interlocutory procedures is concerned with applications made to the court in the course of a proceeding which do not finally determine the rights of the parties these are generically known as interlocutory procedures or proceedings and should be distinguished from final orders interlocutory procedures occur between the commencement of a proceeding and the trial after studying topic eight you should be able to identify interlocutory proceedings how they abort their limits and consequences State the requirements for an injunction understand when a search order or Anton pillar order is appropriate and its requirements understand when a free ing order or morever order is appropriate and its requirements outline the requirements for interim preservation management and custody of property orders understand the requirements for a security for cost order outline basic orders relevant to receivership and provisional liquidation as a starting point let's look at the jurisdiction of associate judges and registar judges generally exercise the jurisdiction of the Court unless Court practice or procceed procedures under the rules permit otherwise and that was held in the case of Commonwealth and Hospital contribution fund of Australia 1982 150 commonwealth law reports 49 appeals from a non-final decision of an associate judge or registar are to a judge ucpr with uh ucpr rules 791 792 and that's with leave registar as distinct from judicial registar have more limited powers specified by the rules of the court and we see that in ucpr rule 452 registar decisions are subject to review under rule 791 a registar May refer an application to a Court rule 4555 then we have rule 982 that enables a party to require a regist to refer a matter to a judge and to comply with that judge's Direction we also have rule 666 that enables the parties to consent in writing to an order or judgment that are register considers appropriate as if made or given in court so various rules here that are scattered throughout the legislation now let's distinguish interlocutory orders from final orders Osborne's concise Law Dictionary 1998 defines an in interlocutory proceeding as one taken during an action and incidental to the principal object of the action namely the Judgment those interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of the case or of protecting or otherwise dealing with the subject matter of the action or of executing the Judgment interlocutory orders do not result in final judgment examples of interlocutory applications include disputes over service jurisdiction disclosure inspection and production of documents arguments concerning privilege attaching to documents and further and better particulars there are many other examples the jurisdiction to bring an interlocutory application is found in rule 31 in terms of the application and Rule 32 in terms of an oral application and also in form nine the document the jurisdiction to bring the application is based on the rules and in some cases in statute and we have rule 31 for applications 32 oral applications and the document of form 9 provides further information too in terms of required documents see the practice Direction 6 of 2004 which is titled applications jurisdiction outline of argument documents read appearance slip amended rule 31 One deals with filing an application must be filed and then served on each respondent at least two business days before the day set for the hearing of the application rule 463 requires that the party bringing the application must write on at the estimated duration of the hearing rules 31 subsection 5 and 462 provide the return date rules 27 31 subsection 5 32 and 112 deal with service along with the ex interpretation act section 38 subsection 1 we need to note that specific rules May override the standard service requirements for example in rule 296 a ceremony judgment application is to be served at least eight business days before hearing and responsive affidavits must be filed at least four business days before you must present an affidavit to prove every fact alleged at the hearing you need to cite the affidavit and the paragraph supporting every fact when it's first raised rule 658 rule 660 and 661 relate to the order and the judgment and in relation to costs we have rule 681 is the general rule 693 an application in a proceeding where each party pays their own costs rule 680 deals with the entitlement to recover costs uh and the method for calculating costs rule 684 is cost of question or part of proceeding and Rule 686 deals with assessment of costs without an order an application may also be bought X part A and that means in the absence of another party there's no respondent to the application examples are applications to extend time within which to serve an originating process or applications for substituted service where there is a particular urgency about the application such as to Warrant a dispensation from the provision of notice to the other party another example an application for a search order where notice might allow the defendant to destroy evidence before the application is heard the applicant in such cases is under a duty of absolute cander the applicant must disclose all matters relevant to the application whether advantageous to the applicant or not in all other cases the interlat applications will be interpart that is between the parties on notice rather than expart in the absence of the party without notice expart orders may be reviewed and set aside by a court under the inherent jurisdiction and under rule 27 let's now have a look at injunctions the Butterworth's legal dictionary AR 1997 at page 600 defines an injunction as a court order of an equitable nature requiring a person to do or refrain from doing a particular action injunctions may be classified as final or interlocutory mandatory or prohibitory expart or interpart an interim in injunction may be granted for a short period of time in an emergency to pres to preserve an applicant's rights or the status quo the interim injunction may be on notice inter partes but it's often expart in the absence of the party interlocutory injunctions are useful in preserving the status quo pending a trial a mandatory injunction requires something to be done a prohibitory injunction requires something from occurring or prevents something from occurring there are numerous types of injunctions for example orders for the preservation of property disposal disposal of perishable property an order for interim distribution of property or income surpluses an orders for the payment of shares freezing orders and search orders to obtain an injunction an applicant must establish two things firstly there is a serious question to be tried and secondly that the balance of convenience favors the granting of an interl interlocutory injunction so let's look at each of these in turn a serious question to be tried in the case of Australian broadcasting commission and Leena game meets propriety limited 2001 208 commonwealth law reports 199 the high court affirmed that there must be a legal or Equitable right to be determined at trial in order to base an interlocutory injunction compare the approach of the high court with that of the House of Lords in American um camid and ethon limited 1975 and the notation there is AC 396 at 47-48 where lord diplock said the use of such Expressions as a probability a primery case or a strong primery case in context in the context of an exercise of a discretionary power to Grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief the court no doubt must be satisfied that the claim is not frivolous or vexatious in other words there is a serious question to be tried what about the balance of convenience so in relation to the balance of convenience favoring the grant of an granting of an interlocutory injunction several issues are considered firstly a threat of damage is insufficient the applicant must establish the respondent's intention to carry out the threat the court is going to balance the relative damage to both parties if if the injunction were granted the possibility that the plaintiff may suffer irreparable damage if an injunction is not granted see Aero Industries propriety limited and RNA a whenham Builders propriety limited citation there is 1965 New South Wales uh nswr 581 an injunction is unlikely to be granted where other forms of relief such as damages are an adequate remedy and lastly an applicants failure to promptly make an application or a respondent's acquiescence may result in a court refusing to Grant an injunction another aspect of whether you can obtain an injunction or not is the requirement of an undertaking as to damages on any application for an interim or interlocutory injunction the court will require the plaintiff to provide the usual undertakings as to damages that is an undertaking given by the plaintiff personally or by Council appearing on of the plaintiff normally in the following terms the plaintiff by its Council undertakes to the court that it will abide by any order which the court may make to is to damages should the court determine that the defendant has suffered any damage by reason of this order which the plaintiff ought to pay and that's set out in rule 264 search orders so moving on to look at search orders which are also commonly known as Anton pillar orders these are expart orders authorizing the search preservation and seizure of documents and other evidence if there are strong grounds for thinking that the defendant will otherwise destroy or remove such evidence in its Wiest form the order may require a defendant to answer questions and produce documents the Court's power to Grant such mandatory relief stems from its inherent power to award an injunction and to prevent an abusive process the rules of Court also provide the a basis for such orders search orders are not search warrants and do not permit forcible entry to premises the order operates personally on the defendant whose refusal to comply May amount to contempt of court secrecy is an essential element to be established when seeking a search order the relevant rules here are found in chapter 8 Part 2 Division 3 Rule 261a and also read practice Direction number two of 2007 so freezing orders a freezing order is known at common law as a Mara order or a Mara injunction it is limited to preventing a defendant or respondent to a counter claim from disposing of assets or removing them from the jurisdiction so as to defeat any judgment which the plaintiff May obtain against the defendant at trial it derives from the Court's Equitable in inherent power to prevent an abusive process the relevant rules here are found in chapter 8 Part 2 Division 2 Rule 26a and 260e and also in the freezing orders practice Direction which is 1 of 2007 in relation to interim preservation management and custody of property Queensland usually or Queensland has Provisions for the interim preservation and custody of property a party usually described as an applicant by reason of the way in which these matters are instituted May seek an order from the court of competent jurisdiction for the preservation of property which may be subject of later proceedings or for an order for preliminary disclosure from another person to ascertain the Identity or whereabouts of a potential defendant for the purposes of commencing an action against that potential defendant a preservation order once made will ensure that the status quo is maintained so that any future order as to that property will not be frustrated the relevant rules are found in rule 250 inspection detention custody and preservation of property and Rule 251 that deals with perishable property so security for costs this is the security which a defendant on application may require from a plaintiff for the payment of costs that may be awarded to the defendant in the event the plaintiff fails in their proceedings the main categories of cases in which security costs cost orders have been made include where the plaintiff is ordinarily resident outside the jurisdiction where a nominal plaintiff not being a plaintiff suing in a representative capacity is suing for the benefit of some other person and there is reason to believe the nominal plaintiff will be unable to pay the cost of the defendant if order to do so where the plaintiff's address is not correctly stated or incorrectly stated in the originating process unless the court is satisfied that the failure was innocently made without any intention to deceive where the plaintive changes they address during the course of proceedings with a view to evading the consequences of the litigation in arbitration proceedings and also where the plaintiff is a limited liability company and there is reason to believe that the company will be unable to pay the defendant's costs with the security for cost is ordered is ultimately a discretionary matter in all the circumstances of the case the following factors have been considered in exercising that discretion these are just a few examples there are many factors listed in your study guide for example the means of persons who stand behind the litigation can they afford to pay these potential costs the prospects of success or merits of the litigation the Bonafide of the litigation whether the plaintiff is is an impecunious company whether the plaintiff's impecuniosity is attributable to the defendant's conduct just remember there's many more stated in the study guide the relevant rules are found in chapter 17 and with respect to companies in the corporations act 2001 at sections 1330 that's 1,330 the power to order security for costs is discretionary provisional liquidation and receivership the Supreme Court has power to appoint a provisional Liquidator under the corporations act at section 472 the Liquidator sells up the company's assets and pays out liabilities which may provide some return to the shareholders receivers may be appointed when a plaintiff establishes a primer facy right to property at risk or loss unless the property is preserved pending the trial of the proceedings the court will provide safe custody for disputed property permit its destruction or prevent its distribution to persons without adequate interest in the property the federal court and the Supreme Courts of each state and territory have powers to appoint receivers when just inconvenient to do so have a look at chapter 8 part three of the uniform civil procedure rules accounts and inquiries the court May order an account where parties are in dispute over the balance of accounts despite other outstanding issues and that's set out in rule 507 so in conclusion in topic 8 interlocutory procedures we've been concerned with applications made to the court during a proceeding which do not finally determine the rights of the parties the topic examined the main interlocutory procedures including injunctions search orders freezing orders interim preservation management and custody of property orders security for cost and basic orders relevant to receivership and provisional Liquidation in the next topic we'll be examining disposition without trial and until then bye for now