Most of what happens in a National Court case between filing and trial happens on a motion. This is the sequence.
Step one — find your jurisdiction
All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing.
Before drafting anything, identify the rule or section that gives the Court power to make the order. Examples:
- Injunction — Order 14 Rule 10, or Constitution s 155(4);
- Default judgment — Order 12 Division 3;
- Summary disposal — Order 12 Division 4;
- Strike out a pleading — Order 8 Rule 27; dismissal — Order 12 Rule 40;
- Extension of time — Order 1 Rule 15;
- Amendment — Order 8 Division 4;
- Adding a party — Order 5 Rule 8.
Step two — the notice of motion
State the date, time and place; state concisely the nature of the order sought; name each party affected. Costs need not be specifically claimed.
Open with the jurisdiction: “…move the Court for Order pursuant to Order 12 Rule 40 of the National Court Rules…”.
Sign it personally — Rule 10 of the 2005 Rules: the motion must be signed by the lawyer or applicant with the name below the signature, and cannot be signed by the law firm.
If the respondent is an infant or a person of unsound mind and you know it, say so on the face of the motion — Order 4 Rule 41.
Set out numbered paragraphs in the exact terms you want. A judge minded to grant the application should be able to adopt your wording. Vague relief invites refusal or adjournment.
Remember the limit in Rule 9 of the 2005 Rules — motions are for interlocutory relief only, not for the substantive relief claimed in the originating process.
Step three — the supporting affidavit
Where the motion is founded on facts, an affidavit setting forth those facts and annexing the documents shall be filed with the notice of motion.
Rule 12(1) of the 2005 Rules is stricter still: all affidavits in support must be filed on the date of filing the Motion.
See what affidavit you need and how to prepare an affidavit.
Step four — filing and service
| When | What | Source |
|---|---|---|
| On filing | Notice of motion and supporting affidavits | 2005 Rules r 12(1) |
| As soon as practicable | Serve on or after the day of filing | 2005 Rules r 11(1) |
| At least 3 clear days before hearing | Service must be complete | O 4 r 42; 2005 Rules r 11(1) |
| By the day before | Affidavit of service filed | O 4 r 43(2) |
| By 2 pm the day before | Opposing affidavits and counter motions | 2005 Rules r 12(2) |
| The day before | Check the Motions List with the Motions Clerk | 2005 Rules r 13(1) |
Short service. Rule 11(1) of the 2005 Rules: if the three clear days have not been complied with, the court will adjourn the motion. Counsel are told not to let it be listed.
Not being on the List. Rule 13(1): any motion that does not appear on the Motions List is not before the Judge and it will not be dealt with.
Note also Order 4 Rule 43(1): where the person to be served has not given notice of intention to defend and is not in default, the motion must be served personally.
Step five — at the hearing
Twenty minutes. Rule 14 of the 2005 Rules — a motion must not exceed 20 minutes. If yours will, apply for a special fixture.
No cross-examination. Rule 12(5) — except in contempt hearings, there is no cross-examination of deponents except with leave. The case is fought on the affidavits.
Absence. Order 4 Rule 46 — the Court may hear and dispose of a motion in the absence of a party where service was not required or was duly effected.
Missing parties. Order 4 Rule 45 — if the Court thinks someone who was not served ought to have been, it may dismiss the motion or adjourn so notice can be given.
If it cannot be heard
A motion shall not be adjourned generally but to a fixed date and time, and — except for winding-up petitions — will not be adjourned twice except with leave.
A motion may be adjourned by consent using the form in Schedule A, presented to the Court, the Motions Clerk or the Judge’s Associate before the hearing. Counsel resident out of town must brief a lawyer in town to appear and seek it.
The Court may strike out or dismiss a motion not prosecuted within one month after filing, or adjourned twice — Rule 17.
Where a motion is not disposed of on the day, Order 4 Rule 48 allows the Court to hear it on a later day without a further notice of motion, unless the Court directs otherwise or a new party must be served.
On costs, see who pays the costs of an interlocutory application. On urgent applications where notice is impossible, see applying without notice.
Sources
- National Court Rules 1983 — O 1 r 15; O 4 rr 4, 37–48; O 5 r 8; O 8 rr 27, Div 4; O 12 rr 40, Divs 3–4; O 14 r 10; Motions (Amendment) Rules 2005
- Constitution — s 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.