Civil Procedure Notes Part 2
Chapter 8 – Application Procedure.......................................................................................................................................2
Chapter 9 – Action Procedure............................................................................................................................................10
Chapter 11 – Service of Documents...................................................................................................................................16
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, Chapter 8 – Application Procedure
o Means by which some kind of relief sought from court
Remember:
Ø (i) Application or (ii) Action proceedings – are special types of legal vehicles Material dispute of fact = action
Ø Not choice – nature of matter determines which vehicle to use No material dispute of fat = application
F Laws sometimes prescribe which vehicle to use Material = needs evidence in court to prove claim
o Application proceedings (motion proceedings)
Ø Based upon exchange of affidavits
Ø Commence proceedings by issuing notice of motion
F Serves to advise respondent of applicant’s claim & relief sought Opposing affidavit =
Ø Application itself then served on respondent answering affidavit
o Respondent who wants to oppose application
Ø Must deliver opposing affidavit together with any supporting affidavits & relevant documentation
F Answers allegations of fact contained in founding affidavit Or if new evidence
arisen etc
o Replying affidavit
Ø If necessary, given by applicant to address & respond to allegations contained in answering affidavit
o Application proceedings – 3 sets of affidavits exchange
Ø (i) Founding (initial) affidavit Excl. applications for summary
judgment or in terms of HCR 43
Ø (ii) Opposing (answering) affidavit
Ø (iii) Replying affidavit
o 3 sets of affidavits
Ø Set out facts & evidence upon which parties’ claim/defence based No preparation for trial
in application
proceedings
o Hearing of matter ends in motion court
Ø Date of hearing – parties legal representatives argue on the papers
Ø General rule – oral (vica voce) evidence not heard
F Arguments of legal representatives limited to legal submissions based on allegations contained in affidavits
F Are exceptional circumstances where matter will be referred for hearing of oral evidence
Court will specify
what evidence
TYPES OF APPLICATION Remember!
After hearing matter – court gives
“order” NOT “judgment”
o 3 general types of application
Ø 1. Ex parte applications
Ø 2. Bilateral applications – applications with notice to other party
Ø 3. Interlocutory or interim applications
o All 3 types may be brought in both MC & HC
Ø Rules in MC more prescriptive
o Applications in HC vs MC
Ø HC – (i) Wider range of relief (ii) Used in all kinds of dispute (iii) Except if excluded
Ø MC – (i) Creature of statute (ii) Only matters prescribed (iii) Only in prescribed manner
o 1. Ex parte applications
Must be given prior notice
Ø No notice given to party (if any) against whom legal relief sought of proposed application
Ø Applicant only party before court (no respondent cited)
Ø Applicant addresses application directly to registrar or clerk
Correct term:
o 2. Bilateral applications “application on notice”
Ø Used when clear from outset that another person’s right will be affected
F Person must receive prior notice of proceedings
Ø Application directed to registrar/clerk & respondent Both informed
of proceedings
o 3. Interlocutory or interim applications
Ø Provisional/temporary application used to obtain ancillary relief incidental to main pending proceedings
Ø Intervening step which may be taken after commencement of action/motion proceeding
F Decides procedural point Typically don’t need
2 supporting affidavits
, Ø Where (e.g.) respondent obliged to take procedural steps & fails to do so
F May use interlocutory application to force respondent take step/conform with rule
Ø Examples of interlocutory applications
F Interim application whereby party compelled to furnish security for costs
F Application to strike out or to take irregular step
F Application to compel discovery (compels respondent to comply with rule(s) for delivery of documents)
FORM OF THE PROCEEDINGS
o Notice of motion – informs court & respondent that:
Ø 1. Type of application
Ø 2. Specifies – (i) date (ii) time (iii) court
Ø 3. Legal relief sought
Ø 4. Must refer to founding affidavit – contains facts necessary to give order
Interim application
usually only needs
o Notice of motion – form depends on type of application short from
Ø HC – prescribed forms are Form 2 & Form 2(a)
Ø Form 2 – short form of notice of motion
F Used when application ex parte & only registrar gets prior notice + interlocutory applications
Ø Form 2(a) – long form of notice of motion
F Used for bilateral applications (both registrar & respondent get prior notice) + urgent application
Ø MC – prescribed forms are Form 1 (short notice) & Form 1A (long notice)
F MC procedures aligned with HC procedures in 2010
o Affidavit
Ø Purpose – record certain acts under oath for court to consider in determining whether to grant application
Ø No standard form – content vary depending on nature of specific application
Ø Must be signed by deponent & signed by commissioner of oaths
o Affidavit – following info should appear in all supporting affidavits Deponent
Ø 1. Names & address of applicant/respondent (para 1 & 2) Person who signs
Ø 2. Fact that applicant has locus standi affidavit
Ø 3. Fact that court has jurisdiction
Ø 4. Material facts on which claim based (probanda) & evidence deponent wishes to place before court (probantia)
Ø 5. Request to court to grant relief as prayed for in notice of motion
o Affidavit – applicant refers to evidence in affidavit
Ø Documentary evidence – must be attached
F Conclusion to be drawn from evidence must be covered in affidavits
Ø Communications/actions by other person – must attach confirmatory affidavits
F Reference affirmed by obtaining confirmatory affidavits from such persons
F Needed to comply with evidentiary rule against hearsay
Only admissible
o Commissioner of oaths evidence should be
in affidavit
Ø Certify that deponent signs affidavit in their presence & asks:
F Knows/understands content
F No objection to taking oath
F Binding on his/her conscience
Ø Provides evidence of oath (replaces witnesses taking oath in court) – authenticates affidavit (not content)
Ø Commissioner signs at end of affidavit – gives place & designation
o Affidavit – MCR 63(1) & (2)
Ø 63(1) – clearly + legibly printed/typewritten & permanent black/blue-black ink & only 1 side of paper of good
quality & A4 standard size
Ø 63(2) – paragraphs must be concise, consecutively numbered
o Affidavit – drafting guidelines
Ø (i) Numbered paragraphs (ii) One allegation per paragraph (iii) Sub-paragraphs (iv) Sub-headings
o Titty’s Bar v ABC Garage
Ø Confirms importance of affidavit & that they must include all necessary facta probanda & facta probantia
F Applicant’s case stands or falls on averments made in founding affidavit
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