Judgments are enforced quickly, and an appellant who needs a stay cannot wait for the next motions day. Order 13 Rule 14 sets out the only route to an urgent hearing, and it is more demanding than the equivalent in the National Court.
The rule
(1) Subject to expressed jurisdictional limits, urgent applications for a stay or other urgent interlocutory applications may be made before the Duty Judge. (2) The appointment for hearing is obtained from the Duty Judge or in his absence the Chief Justice by prior application to the Registrar. (3) The request for an appointment must be in writing and explain the reasons for the urgency. (4) If the applicant desires to proceed ex parte the application for an appointment must explain why he seeks to dispense with the requirement for service. (5) The Registrar, on being satisfied with the reasons for urgency, shall refer the request to the Duty Judge or the Chief Justice in Form 10C.
The five documents
(6) The application will not be set down for hearing unless the following documents are filed: (a) Originating Process; (b) Application; (c) Supporting Affidavit/s; (d) where appropriate, an Undertaking as to Damages; and (e) a draft order. (7) The applicant must, in the application, first seek an order dispensing with the requirement for service. (8) The supporting affidavit must demonstrate the urgency and the reasons why service is unnecessary, such as difficulty with locating the respondent.
| Document | What it is |
|---|---|
| Originating process | The notice of appeal, application for leave, notice of motion or review application. There is no urgent application without a proceeding on foot or filed with it |
| Application | Form 4, stating the orders sought, the grounds, the affidavits relied on and, under Rule 15, a concise statement of the Court’s jurisdiction to grant them |
| Affidavit | The facts, the urgency, what will happen if no order is made, and why service cannot be effected if ex parte |
| Undertaking as to damages | Required where the order restrains the respondent from enjoying a judgment; the applicant promises to compensate loss if the order should not have been made |
| Draft order | The precise orders, including the dispensation with service, the interim relief, service directions and a return date |
What the Duty Judge can order
Upon hearing the application, the Duty Judge may make orders including: (a) dispensing with requirements of service; (b) an interim order which provides some solution, until the return date; (c) for service of the order, the originating process, motion, supporting affidavit, undertaking as to damages and other documents, on or by a specified date; (d) giving “liberty to apply”; (e) a specific return date when the interim orders become returnable before the Duty Judge; and (f) for filing an affidavit of service.
The design is a short interim order followed by an inter partes return date, not a final determination. The respondent then has the chance to be heard, and the interim order is either continued, varied or discharged. Section 5(3) of the Supreme Court Act allows the full Court to discharge or vary any order a single Judge makes under section 5.
The jurisdictional limit
The Duty Judge sits as a single Judge. A stay pending appeal is within section 5(1)(b) of the Act, an interim order to prevent prejudice, and section 19 confirms that an appeal is not itself a stay. An urgent application for something a single Judge cannot grant, such as an order that effectively decides the appeal, or relief in a matter where the Rules reserve the decision to the Court, will be refused however urgent it is. Rule 15 requires every application for interlocutory orders to state the source of the Court’s jurisdiction, and for an urgent application that statement should identify section 5 or the specific rule relied on. See when a single Judge can decide.
The typical case: a stay
The applicant has lost in the National Court, has filed a notice of appeal, and the respondent is about to execute. The request to the Registrar explains the imminent execution. The affidavit exhibits the judgment, the notice of appeal, evidence of the threatened enforcement and evidence of the prejudice if it proceeds. The application seeks a stay under section 19 and section 5(1)(b) pending the appeal, and if the respondent cannot be served in time, an order dispensing with service. The Duty Judge will usually grant a short stay to a return date and direct service. The principles the Judge applies on the return date are in what the Court considers on a stay application; the mechanics of the application are in applying for a stay pending appeal.
Practical notes
First, the request letter is vague. The Registrar must be “satisfied with the reasons for urgency” under Rule 14(5); a letter that says only that the matter is urgent is not referred. Second, the undertaking as to damages is left out because the applicant does not want to give it. Where the order will hold up a money judgment the undertaking is expected, and its absence is a reason to refuse. Third, the ex parte hearing is used when the respondent could easily have been served by telephone or email to the lawyer on the record. Rule 14(8) requires an explanation such as difficulty locating the respondent; an applicant who proceeds ex parte without good reason may have the order discharged on the return date with costs.
Applications that are not urgent go to the Duty Judge on a scheduled motions day under Rule 15; see how to make an application. Interim relief more generally is covered in interim orders while the appeal is pending.
Sources
- Supreme Court Rules 2012 — O 13 rr 2, 14, 15; Forms 4, 10C
- Supreme Court Act (Chapter 37) — ss 5, 19
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.