When can a party commence Court proceedings by way of a Court application?
A Court proceeding must be started by claim unless the Uniform Civil Procedure Rule 1999 (Qld) (‘UCPR’) or other legislation (‘Act’) require or permit the proceeding to be started by application.
Unlike a claim, a party that commences a Court proceeding by way of application is known as the “applicant” and the party on whom the application is served is known as the “respondent”.
However, an application is only permitted to start a Court proceeding if:
- the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or
- there is no opposing party to the proceeding or it is not intended to serve any person with the originating process; or
- there is insufficient time to prepare a claim because of the urgent nature of the relief sought.
An “application” is defined by the UCPR to mean:
- an application starting a proceeding;
- another application; or
- if the court orders a proceeding started by claim to continue as an application, the claim is also an application for the purposes of the UCPR.
What are the general requirements of an application?
An application must be in approved form.
An application must also:
- name as respondents all persons directly affected by the relief sought in the application, however, this rule does not apply if these rules or another law authorise the hearing of the application without notice being given to another person;
- list the affidavits to be relied on by the applicant at the hearing;
- specify in the application the orders or other relief sought in the proceeding;
- if an application is made under an Act, the application must state the name and section number of the Act under which the application is made;
- specify the day set for hearing the application;
- if an application is filed in the District Court or a Magistrates Court, or material filed with it, must show that the court has jurisdiction to decide the application.
When must the application be served?
Unless an exception under the UCPR or an Act applies, an application must be filed and then served on each respondent at least three (3) business days before the day set for hearing the application.
Must the application be accompanied by an affidavit?
Unless the Court gives leave otherwise, an affidavit to be relied on by the applicant at the hearing of an application must be filed and then served on each respondent at least three (3) business days before the day set for hearing the application.
Can the application be temporarily adjourned?
If all the parties to an application consent to an adjournment of a hearing of the application, they may adjourn the application by noting the adjournment on the court file or filing a consent in the approved form.
If you need to commence a Court proceeding by way of an application, and you wish to have an experienced civil litigation lawyer prepare the necessary Court documents for you and otherwise represent you in the matter, please contact AdviiLaw today to speak to one of our civil litigation lawyers. Contact us on 07 3088 7937 or email us at [email protected].
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