Applications in the Queensland Courts - a short guide
There are two types of applications:
- An Originating Application (Form 5) is a document that commences certain types of court proceedings;
- An Application in a proceeding (Form 9) is a document that is used for an application that is brought in court proceedings that have already commenced.
Originating Application versus Claim
The main difference between court proceedings commenced by claim and those commenced by originating application are that proceedings commenced by claim require pleadings. Pleadings are of use to the court when there are serious disputes of fact between the parties (pleadings narrow the issues of fact to be decided).
Originating Applications are rarer. Most commonly, Originating Applications are used for cases such as:
- Applying for further provision from the estate of a deceased person under section 41(1) of the Succession Act 1981 (family provision)
- Applications under the Corporations Act 2001 to wind up a company based on a failure to comply with a statutory demand, or to have a statutory demand set aside
- Certain applications under the Property Law Act 1974 (e.g. for the possession of a property, for the appointment of trustees for the partition and sale of a property) and the Status of Children Act 1973.
You should use an Originating Application when the Uniform Civil Procedure Rules 1999 (UCPR) or another Act require or allow a person to apply to the court for relief: (rules 10 and 11 UCPR).
You can (but don't have to) use an Originating Application in cases where:
- there are not going to be substantial disputes of fact; or
- urgent relief is sought; or
- there is not a respondent (rule 11), although this is very rare.
If you complete an Originating Application:
- you will have to pay a court filing fee;
- the court will set a hearing date;
- in most cases you will need to serve the Respondent; and
- the court can make an order requiring the parties to exchange pleadings, if it considers that these are required (rule 14).
Completing an application form
You can find the court forms are on the court's website.
For an Originating Application use a Form 5, for an Interlocutory Application use a Form 9. The application forms ask you to give an estimate of the time it will take the Court to consider the event. For a contested application, with affidavit material and written submissions to read, as well as oral argument to hear, at least 45 minutes will usually be required.
For an Originating Application, the Applicant is the person seeking relief, the Respondent is the person you are seeking relief from. Note that for some rare Originating Applications, there will not be a Respondent because the order that you are asking the court to make is not against any other person.
- For example:
- John is seeking a declaration of paternity under section 10 of the Status of Children Act 1978 that Joseph Grande was the father of John's deceased mother Mary. Joseph passed away in 1960. There is no Respondent to this Application.
When you write the orders that you are applying for always write the section of the Act or the rule that gives the court the power to make the orders that you are asking for. This is the section or rule that you are "relying on."
- For example:
- That pursuant to section 38 of the Property Law Act 1974 John Smith Solicitor be appointed as trustee for the sale of the property at 100 John Road, East Brisbane, described as Lot 1 on RP 765 432 County of Stanley, Parish of Bulimba, Title Reference 1098 7654.
For an Interlocutory Application in an existing proceeding, just use the parties' descriptions in the existing proceedings (e.g. Plaintiff, Defendant, Third Defendant added by Counterclaim, etc).
When you write the orders that you are applying for always write the rule or the section of the Act that gives the court the power to make the orders that you are asking for. This is the rule or section that you are "relying on."
- For example:
- That pursuant to rule 377(1)(a) of the Uniform Civil Procedure Rules 1999 the Plaintiff have leave to amend the Statement of Claim in accordance with exhibit A to the affidavit of Joe Bloggs filed 21 June 2013.
For an Interlocutory Application it is also worth considering:
- Should the court set a time limit on when the Respondent must comply with the order?
- What will happen in the event that the Respondent does not comply with the order?
- If the order does not say what happens if it is not complied with, then you may need to make a further application to enforce the order or respond to the breach. Sometimes an order will say that if the Respondent does not comply then the Respondent's case can come to an end; this will usually happen when the Respondent has previously been in breach of the rules.
- If you have previously sent a Rule 444 letter and are bringing an application to progress your matter, do the orders that you are seeking match the relief you mention in your Rule 444 letter?
The general provision is that "costs follow the event." This means that the successful party's costs are paid by the unsuccessful party. A self represented party is generally entitled only to their disbursements (filing fees etc.)
You can also ask the court to make "such further orders as the Court considers appropriate."
- Your Application should list the Affidavits you will rely on to support your application. You should list these by the name of the person giving the affidavit (deponent) and the date the affidavit is sworn.
- You do not have to file all of your affidavits at the time that you file your Application, although you should list that you expect to file an affidavit from that other person.
- For example:
- Affidavit of Derek Dawson to be filed.
- If you are filing any affidavits after you have filed your application, you should file and serve these as soon as possible. You can ask for the leave of the court to file these on the day of your hearing if necessary.
Preparing an Affidavit
Chapter 11, Part 7 of the UCPR contains the formal rules for preparing an affidavit.
For more information on the requirements of drafting an affidavit, Caxton Legal Centre has produced a publication on filing Affidavits in Magistrates Court Proceedings, which sets out relevant principles that apply to drafting affidavits in the Queensland Courts. The publication is accessible on the Caxton Legal Centre website.
Serving the application documents
Once your Application is filed, you should serve it on the other party as soon as possible. Under the UCPR, material for an application needs to be served at least three business days before a hearing (Rule 28 UCPR).
For example, if a hearing is to be heard on a Friday, the material should be served by Monday.
The Court can give leave to rely on material that is provided less than three business days before the hearing (Rule 28(2)).
Ex parte applications
In some circumstances an application can be made ex-parte, which means that only the Applicant appears at hearing, and that the Respondent is not served with the application and does not appear at the hearing.
Ex Parte Applications are rare, they are usually brought in urgent situations. For example, when you are seeking a freezing or preservation order about property that is at serious risk of being destroyed or removed from Queensland before the court has a chance to make a final decision in the matter (Chapter 8 Part 2 of the UCPR).
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