Legal Procedures for Court Applications

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Questions and Answers

What is the purpose of applying to strike out affidavits containing inadmissible evidence?

  • To expedite the court proceedings
  • To ensure the applicant is not prejudiced (correct)
  • To increase the length of the trial
  • To allow more evidence to be presented

An application on notice is filed when someone's final rights are not affected.

False (B)

According to the court's procedure, what may happen if a real dispute of fact has arisen?

The court may refer aspects of the matter for oral evidence.

In ex parte applications, an applicant must act in the utmost _____ with the court.

<p>good faith</p> Signup and view all the answers

Match the following terms with their definitions:

<p>Counter-application = Filed when the respondent seeks more than dismissal Intervention = Consent application by someone with an interest Ex Parte Application = Application made by one party without notice to others Affidavit = Written statement confirmed by oath</p> Signup and view all the answers

What is an ex-parte application?

<p>An application used when it is impossible to give notice to the other party. (D)</p> Signup and view all the answers

Interlocutory applications initiate litigation.

<p>False (B)</p> Signup and view all the answers

What must an applicant disclose in an urgent application?

<p>The applicant must disclose urgency fully by providing reasons.</p> Signup and view all the answers

A notice of application serves the same function as a ______ in the action process.

<p>summons</p> Signup and view all the answers

Match the application types with their descriptions:

<p>On-notice applications = Require notice to affected parties Ex parte applications = No notice to other parties is possible Interlocutory applications = Incidental actions that do not start litigation Urgent applications = Have shortened response periods due to urgency</p> Signup and view all the answers

Flashcards

Ex Parte Applications

These applications are for urgent matters, where immediate relief is necessary. They are made by one party without the other party present. Examples include applications for court orders to seize property or attach assets.

Striking Out Inadmissible Evidence

If inadmissible evidence is included in affidavits, the opposing party can ask the court to remove it. The court will consider whether the applicant would be harmed if the inadmissible evidence remains.

Court Order if Real Dispute of Fact

The court must determine if there's a genuine dispute over the facts presented in the affidavit. If so, the court may (1) decide based on the affidavits alone, (2) have a hearing to examine specific points, or (3) schedule a full trial for a comprehensive resolution.

Utmost Good Faith in Ex Parte Applications

Ex parte applications must be filed with utmost good faith. Applicants have to disclose all relevant facts truthfully, even if it hurts their own case. Failure to do so can lead to disciplinary action or adverse cost orders.

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Intervention in Ex Parte Applications

Any party with a direct interest in an ex parte application can apply to be included in the proceedings. The original applicant has the right to oppose the intervention.

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Notice of Application

A legal document requiring a party to respond to an application submitted by another party in litigation.

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Founding Affidavit

A written statement made under oath that provides evidence and arguments supporting a legal claim.

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Urgent Application

A legal application that seeks immediate action from the court without necessarily having to wait for the full trial process.

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Interlocutory Application

A type of application that doesn't initiate a lawsuit but relates to a specific aspect within an ongoing case (e.g. requesting documents).

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Audi Alteram Partem

Legal principle that both sides in a dispute must be heard before a decision is made (ensuring fair process).

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Study Notes

Writing out Inadmissible Evidence

  • If a matter contains inadmissible evidence (on grounds mentioned), opponent may apply to have it struck out as evidence
  • Court test: applicant will be prejudiced if request not granted
  • App to strike out = example of interlocutory/ interim application

Applications on Notice

  • Generally: when someone's final rights are affected by order
  • Steps/Sequence:
    • Notice of motion
    • Applicant's founding & supporting affidavits
    • Respondent's notice to oppose
    • Applicant's replying affidavit
    • Setting down matter for hearing
    • Hearing

Court Orders: Final Orders & Rule Nisi

  • Final order => if no other person's rights affected & papers are in order
  • When, in court's opinion, an ex parte may affect someone else's rights
  • Court issues applying rule nisi
  • Rule nisi involves a temporary order w/ a return date on which is may advance reasons why order not be made final.
  • Thus, where temporary interim relief needed, court may grant it together w/ a rule nisi
  • Here, order operates against res until order made final or dismissed on return date

Ex Parte Applications

  • Any person w/ interest in ex parte app may apply for consent to intervene
  • In form of motion
  • Notice given to applicant who may oppose intervention through
  • Umost good faith ex parte:
    • For proper admin of justice, applicant in ex parte, particularly duty to be completely open & honest w/ court, revealing all facts relevant which may influence court's decision
    • Even if such info prejudices own case
    • Breach of good faith = harmful consequences (cost order or disciplinary repeal)

Ex Parte applications in HC brought in FFG around

  • Applicant only interested person in relief claimed
  • Relief claimed = preliminary step in proceedings
  • Notice of relieve such that notice will defeat purpose of app
  • Immediate relief needed bc harm is imminent, eg. ship as unpaid lien for services about to leave

Optional further steps in applications

  • Counter app when res wants more than the dismissal of app w rule 42
  • Answering app of appl then usually serves as founding aff for the counter app
  • Main app => in conventic
  • Counter app => in reconvention

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