5210LAW Lecture Notes - Lecture 5: Mytravel Group, Affidavit, Interlocutory
1. INTERLOCUTORY APPLICATIONS AND ENDING PROCEEDINGS EARLY
1.1. What are interlocutory applications?
- Interlocutory applications are applications that seek an order of the Ct before final
determination - mentioned many times, where Rules specifies the need for the leave of Ct.
oApplications within a proceeding and need a judge to decide
- Three special interlocutory applications – The ‘Emergency applications’!
- What can a party do if litigation has commenced or is about to commence and
there is a serious risk that the other party is:
oDisposing of the property that is the subject matter of the dispute;
oRemoving assets from jurisdiction so as to frustrate judgement;
oMaking evidence disappear.
- UCPR provides for applications in these emergencies.
- THREE ORDERS
oProperty preservation order
oSearch order
oFreeze order
1.2. Property preservation order
-Rule 250 of UCPR provides the court with a general power to make an order for the
inspection, detention, custody or preservation of property.
- Applies:
oto property the subject of, or related to, the proceeding in question; or
owhere inspection of property is necessary for deciding an issue in the
proceeding.
oDef of property – Acts Interpretation Act 1954 (Qld) s 36 ‘legal or equitable
estate or interest in real or personal property of any description (including money).’
Including contract
- What does such an order allow? –r 250(3)
- enter a place, take samples, make observations, take photos, observe a process (eg
manufacturing process in a products liability case), conduct an experiment, read or view
information contained in property (ie very wide-ranging).
- What happens where property the subject of the proceeding is perishable? Court
may order sale and disposal of proceeds. Control by the court of the money and then
determine who should have it (see r 251 UCPR).
- May get an order under r 250 or r 251:
oagainst a non-party; and
obefore the proceeding has commenced (ie no prior claim or application
issued).
- Example: dividing fence between two properties, fence needs repair and need to
pay half each and want to get rid of the tree but go to court to stop the tree being removed
1.3. Search Order
- What happens if the applicant wants to make an order for the preservation of
documents, but does not want to alert the defendant for fear that the documents will be
destroyed?
- Search Order – r 261A.
- Pre-2007 based in the Ct’s equitable jurisdiction and called ‘Anton Piller’ orders.
Named after English Court of Appeal case, Anton Piller KG v Manufacturing Processes Ltd.
- Ex parte (without other party) r 259.
-R 261C – UCPR order does not replace but supplements Anton Piller order.
find more resources at oneclass.com
find more resources at oneclass.com
- Applicant must show – r 261B:
oa strong prima facie case.
othat they will suffer considerable serious damage if the order is not granted.
othat there is evidence to suggest:
defendant possesses important evidentiary material.
that there is a real possibility that the defendant may destroy the
material.
-Supreme Court Practice Direction 2 of 2007 para 5 – Affidavit in support
o(a) a description of the things or the categories of things, in relation to which
the order is sought;
o(b) the address or location of any premises in relation to which the order is
sought and whether they are private or business premises;
o(c) why the order is sought, including why there is a real possibility that the
things to be searched for will be destroyed or otherwise made unavailable for use
in evidence before the court unless the order is made;
o(d) the prejudice, loss or damage likely to be suffered by the applicant if the
order is not made;
o(e) the name, address, firm, and commercial litigation experience of an
independent solicitor, who consents to being appointed to serve the order,
supervise its execution, and do such other things as the Court considers
appropriate; and
o(f) identification of any person likely to be on the premises at the time of the
proposed search who could reasonably be considered to be in a position of
vulnerability
- How may an AP order be executed?
oUniversal Thermosensors Ltd v Hibben how not to do it.
Granted an anton piller order and arrived at the defendants home at
6am and broke the door down, wife and children at home and traumatized.
No how it should be done
oSupreme Court Practice Direction 2 of 2007 codifies
Para 9 – execute order between 9am-2pm to allow respondent to
obtain legal advice.
Para 11 – sensitivity to persons in position of vulnerability – ie
children.
Para 14 – applicant could have to provide security in case of
damages
oR 261E – independent (Ct appointed) solicitor should supervise the
execution of the order
1.4. Freeze Order
- What happens if P is concerned that D is removing assets from jurisdiction with the
purpose of frustrating judgment?
-R 260A
- Pre-2007 based in the Ct’s equitable jurisdiction and called ‘Mareva’ orders. Named
after English Court of Appeal case, Mareva Compania Naviera SA v International
Bulkcarriers SA.
- Ex parte r 259.
- Respondent need not be party to proceedings – r 260C.
-R 261E – UCPR order does not replace but supplements Mareva order.
- What does an applicant need to show? – r 260D
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Interlocutory applications are applications that seek an order of the ct before final determination - mentioned many times, where rules specifies the need for the leave of ct. o. Applications within a proceeding and need a judge to decide. Three special interlocutory applications the emergency applications"! What can a party do if litigation has commenced or is about to commence and there is a serious risk that the other party is: o o o. Disposing of the property that is the subject matter of the dispute; Removing assets from jurisdiction so as to frustrate judgement; Rule 250 of ucpr provides the court with a general power to make an order for the inspection, detention, custody or preservation of property. Applies: o o to property the subject of, or related to, the proceeding in question; or where inspection of property is necessary for deciding an issue in the proceeding. o.
