Acts and Regulations

Rule-38 - PROCEDURE ON APPLICATIONS

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Current to 1 January 2024
MOTIONS AND APPLICATIONS
RULE 38
PROCEDURE ON APPLICATIONS
38.01Application of Rule
This rule applies to proceedings commenced by Notice of Application (Form 16D).
38.02Place and Date of Hearing
A Notice of Application may be made returnable in any judicial district on a date for hearing obtained from a judge in that district.
38.03Issuing of Notice of Application
A Notice of Application shall be issued as provided by Rule 16.
38.04Content of Notice
A Notice of Application shall
(a) state the precise order sought,
(b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on, and
(c) list the documentary evidence to be used at the hearing of the application.
86-87
38.05Service of Notice
Where Required
(1)A Notice of Application and any affidavit in support shall be served on all parties to the proceeding.
Where Not Required
(2)Where the nature of an application or the circumstances of the case render service of the Notice of Application impractical or unnecessary, or where the delay necessary to effect such service might entail serious consequences, the court may make an order without notice.
Where Notice Ought to be Served
(3)When the court is satisfied that the Notice of Application ought to be served on a person who has not been served and who may be affected by the order sought, the court may direct that the Notice of Application or any order made on the application be served on that person in such manner as may be just.
Time for Service
(4)A Notice of Application shall be served within the time prescribed by Rule 16.08.
38.06Record
Where an application is made on notice, the applicant shall, at least 24 hours before the hearing of the application, file with the clerk a record for the use of the court consisting of
(a) an index,
(b) a copy of the Notice of Application, and
(c) a copy of all affidavits, including those of each adverse party, or other material to be used on the hearing.
92-3
38.06.1Pre-Hearing Brief
(1)Unless ordered otherwise, each party to an application shall prepare a pre-hearing brief containing
(a) a succinct outline of the facts the party intends to establish,
(b) a concise statement of the issues to be dealt with by the court,
(c) a concise statement of the principles of law on which the party relies and citation of relevant statutory provisions and leading authorities, and
(d) a concise statement of the relief sought by the party.
(2)Each party shall, at least 48 hours before the hearing of the application, file with the clerk
(a) the original copy of his pre-hearing brief which the clerk shall forthwith transmit to the judge who is to hear the application, and
(b) a copy of his or her pre-hearing brief for each opposite party who has not exchanged a copy of his or her pre-hearing brief with the party filing the pre-hearing brief.
(3)The clerk shall advise each party when an opposite party files his or her pre-hearing brief. The clerk shall release the copies filed under clause (2)(b) to any party who has filed a pre-hearing brief.
(4)Documentary evidence shall not be included with the pre-hearing brief unless all parties have consented to its admission as evidence.
86-87; 87-6; 90-20; 99-71; 2010-61
38.07Rescinding Orders Made Without Notice
(1)A person affected by an order made without notice to him, or a person who has failed to appear on an application through accident, mistake or insufficient notice, may apply by Notice of Motion served within 10 days and returnable within 25 days after the order came to his attention, to have the order rescinded or varied.
(2)Where possible, a motion under paragraph (1) shall be made to the judge who made the order.
38.08Where Public May be Excluded
Rule 37.08 applies, with any necessary modification, to a proceeding commenced by a Notice of Application.
38.09Disposition of Application
On the hearing of an application, the court may
(a) allow or dismiss the application or adjourn the hearing, with or without terms, or
(b) where it is satisfied that there is a substantial dispute of fact, direct that the application proceed to trial or direct the trial of a particular issue or issues and, in either case, give such directions and impose such terms as may be just, subject to which the proceeding shall thereafter be treated as an action.