The general rule is that the other side must be told. Order 4 Rule 38 of the National Court Rules 1983 sets out the exceptions.
(1) Subject to sub-rule (2), a person shall not move the Court for any orders unless before moving he has filed notice of the motion and has served the notice on each interested party who has an address for service.
(2) A person may move the Court without previously filing or serving notice —
(a) where the preparation of the notice, or the filing or service, would cause undue delay or other mischief to the applicant; or
(b) where each party interested, other than the applicant, consents to the order; or
(c) where under these Rules or the practice of the Court the motion may properly be made without prior filing or service; or
(d) where the Court dispenses with the requirements of sub-rule (1).
Which one applies
| Gateway | Typical case |
|---|---|
| (a) Undue delay or other mischief | Genuine urgency — assets about to be dissipated, an eviction tonight, evidence about to be destroyed |
| (b) Consent | Everyone agrees to the order — a consent adjournment or timetable |
| (c) Rules or practice allow it | Applications the Rules contemplate being made without notice — e.g. leave for joinder under Order 5 Rule 4(2) |
| (d) Dispensation | The Court excuses notice, usually as the first order sought on the motion itself |
The gateway is not limited to delay. It covers the case where giving notice would itself defeat the application — the classic example being a freezing order or a search order, where warning the defendant would allow assets or documents to disappear.
Note the words “to the applicant”. It is the applicant’s position, not general inconvenience, that must be prejudiced.
Rule 5 of the Motions (Amendment) Rules 2005
(a) A lawyer or party wishing to make an urgent ex parte application must first contact the Registrar or Deputy Registrar by telephone, and send a fax setting out the details of the application and why the matter is urgent.
(b) The Registrar fixes a time for hearing in consultation with the Motions Judge.
(c) If interim orders are granted, they must be made returnable before the Court on a fixed date, and the judge must order filing and service of the Court Order, originating process, notice of motion, supporting affidavit, undertaking as to damages, security for costs and other relevant documents.
(a) Contact the Registrar in writing, explaining the urgency and why dispensation with service is sought.
(c) The application will not be set down unless these are filed: originating process; notice of motion; supporting affidavit(s); where appropriate an undertaking as to damages; and a draft order.
(d) The notice of motion must first seek an order dispensing with the requirement for service, and the affidavit must demonstrate the urgency and the reasons dispensation is necessary — such as difficulty locating the defendant.
- an order dispensing with requirements of service;
- an interim order which provides some solution, until the return date;
- service of the order, originating process, motion, affidavit, undertaking and other documents by a specified date;
- liberty to apply;
- a specific return date when the interim orders become returnable before the Motions Judge;
- an affidavit of service of those documents.
Rule 5(ii)(f) — no substantive relief
“A party shall not and the judge shall not make any order in terms of the substantive relief sought in the originating process.”
An ex parte application can produce only interim relief holding the position until the return date. It cannot deliver the outcome of the case behind the other side’s back.
That reflects Constitution section 59, which makes natural justice a rule of the underlying law, its minimum requirement being to act fairly and be seen to act fairly; and Rule 9 of the 2005 Rules, under which motions are for interlocutory relief only.
What an ex parte applicant owes the Court
Full and frank disclosure. Because the respondent is absent, the applicant must put the material fairly — including facts and arguments that tell against the application. An order obtained on a one-sided account is vulnerable on the return date.
An undertaking as to damages, where appropriate. Rule 5 requires it to be among the filed documents.
Prompt service and a return date. The whole scheme depends on the respondent being brought in quickly to be heard.
Rule 7 of the 2005 Rules — motions to be moved after official sitting time, on weekends and public holidays, must be done by prior arrangement with the Registrar. The Motions Judge is the duty judge, or in their absence another judge assigned by the Judge Administrator (Civil). They are treated as urgent applications under Rule 5.
See also Order 2 Rules 12 and 13 on requiring the Registry to open outside hours, and getting an injunction without notice.
Where an order has been made in your absence, the remedy is an application to set it aside — ordinarily on the return date the Court will itself have fixed.
Sources
- National Court Rules 1983 — O 2 rr 12, 13; O 4 rr 38, 42–46; O 5 r 4; O 14 rr 9–16; Motions (Amendment) Rules 2005 rr 5, 7, 9
- Constitution — ss 59, 155(4)
Before relying on anything here, read the current text of the National Court Rules 1983 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.