Interlocutory application (Rule 17.01(1)) (Form 35)

Rule 17.01 of the Federal Court Rules 2011 says a party who wants an order in a proceeding that has already started must file an interlocutory application in accordance with Form 35. It must state, briefly but specifically, each order sought and, if appropriate, be accompanied by an affidavit. It must be served on the other parties at least 3 days before the hearing. A Registrar fixes the return date and place for hearing when it is filed. An interlocutory application is any application in a proceeding already started other than a cross-claim (Dictionary).

When you need it

• You need an order in an existing Federal Court case, such as procedural directions or other interlocutory orders.
• The example in rule 17.01 is an application to have a proceeding dismissed as disclosing no cause of action.
• You want an order under the Trans-Tasman Proceedings Act 2010 in a proceeding already started (r 34.64).
• Some interlocutory applications have their own forms, such as Form 97 (leave to serve a subpoena in New Zealand) or Form 105 (native title joinder).

1. 1

   Copy the heading

   Use the proceeding number, District Registry, Division and party names from the originating application.

2. 2

   Address it and identify who applies

   In the 'To' line name each party who may be affected, and state the role of the party applying, such as Applicant or Respondent.

3. 3

   Leave the hearing details blank

   The Registry inserts the hearing time, date and place, and any order abridging time for service.

4. 4

   State the orders sought

   Set out briefly but specifically each order sought in numbered paragraphs (r 17.01(1)(a)).

5. 5

   Service option, date and sign

   Choose whether you will serve all, some (named) or none of the other parties, then date and sign as the party or its lawyer.

• File the application and any supporting affidavit through eLodgment or at a District Registry.
• Serve the sealed application and affidavit on each other party at least 3 days before the hearing date (r 17.01(2)). In the rules, file means file and serve.
• If you rely only on correspondence or documents whose authenticity is not disputed, you can do without an affidavit by following the listing and filing steps in rule 17.02.
• You may ask for an order that the application be served on a party who has not filed an address for service or on a non-party (r 17.03). A filing fee may apply; check the fee schedule.

• Draft the orders exactly as you want the Court to make them.
• The application may be decided in your absence if you were served and do not appear (r 17.04), so diarise the return date.
• You can also make an oral application for an interlocutory order at a hearing (r 17.01(3)).