Actions and applications: forms of court proceedings

There are two forms of legal proceedings in our civil court system: actions (“also known as ”trials“) and applications (also known as ”motion proceedings“). Each form of proceeding follows its own rules and has a different application in civil law.

Actions and applications: forms of court proceedings

Source: Paul Jacobson Attorney There are two forms of legal proceedings in our civil court system: actions (“also known as ”trials“) and applications (also known as ”motion proceedings“).  Each form of proceeding follows its own rules and has a different application in civil law.  This post will take a look at applications.

An application usually makes it way to a judge relatively quickly.  Applications are used where there is no material factual dispute between the parties and the only real issues to be decided are points of law.  An example of a case where an application is appropriate is where a landlord cuts off the tenant’s electricity and the tenant brings an application to court to have the electricity restored.  In such a case there is no dispute that the landlord cut off the electricity supply.  The main issue is whether the landlord was entitled, in law, to do so.

An application is launched by an applicant against one or more respondents.  The applicant will sign an affidavit before a commissioner of oaths (usually) setting out the facts in support of the applicant’s desired relief.  This affidavit is called a ”founding affidavit“ as it forms the foundation of the application.  The founding affidavit is annexed to a document called a ”notice of motion“ which sets out the details of the parties; the court; the time and date when the application is intended to be heard; the relief the applicant seeks (using the above example, the tenant, as applicant, may seek to have its electricity supply restored as well as payment of its legal costs); the name of the person who deposed to the founding affidavit and the details of the applicant’s attorneys.

Once the application has been issued by the court, it is forwarded to the appropriate messenger of the court (also known as the sheriff) who is tasked with the responsibility of serving the application on the respondent/s.  Once the application has been served, the respondent has a period of time to deliver a notice called a ”notice of intention to oppose“ to the applicant.  This notice tells the applicant that the respondent is opposing the application and sets out the respondent’s attorneys’ details.  This notice is usually delivered to the applicant’s attorneys’ offices by a representative of the respondent’s attorneys and then a copy is placed in the court file, or ”filed“.  The time period to deliver this notice is ten court days in the High Court (these time periods are different in the Magistrates Court).

The respondent then has an opportunity to deliver an affidavit to answer the founding affidavit.  This affidavit is called an ”answering affidavit“ and it must be delivered within a prescribed time period; usually fifteen court days in the Magistrates Court and twenty court days in the High Court.  The answering affidavit sets out the respondent’s version of the facts.  Although the facts may differ in the affidavits, provided there is no material factual dispute, the matter may proceed on application.

If the respondent does not deliver an answering affidavit then the applicant may have the application set down for hearing before a Magistrate or judge.  If the respondent delivers its answering affidavit late, it may well have to apply for condonation for the late filing of the answering affidavit or risk having the answering affidavit disregarded.  This could be disastrous as the judge would only look at the applicant’s affidavit and may not have a complete picture.

Once the answering affidavit has been served on the applicant’s attorneys and filed at court, the applicant may file an affidavit in reply to the allegations in the answering affidavit.  This affidavit is predictably called a ”replying affidavit“.  In the High Court the applicant has ten court days to file its replying affidavit if it wishes to do so.  The replying affidavit should not deviate from the framework created by the founding affidavit and should the applicant introduce further facts not set out in the founding affidavit, the respondent may file a fourth affidavit.  This is uncommon though.

Once the various affidavits have been exchanged, the matter may be set down for hearing before a judge or Magistrate.  The hearing dates vary from court to court and could take a week or two after the last affidavit is filed or months afterwards, before the matter is heard.

At the hearing of the matter the court will listen to legal argument from each party’s lawyers and will hand down a judgment.

To add to all of the above, there are three types of applications: unopposed, urgent and opposed applications.  The time periods and even some of the steps in the application process vary depending on which type of application you are involved in.

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