Originating application (Form 5)

Under the Uniform Civil Procedure Rules 1999 (Qld) a proceeding must start by claim unless the rules require or permit it to start by application, for example where an Act requires an application to the court, where the main issue is one of law with no substantial factual dispute, or where the relief is urgent (rr 9-11, as summarised in the court's fact sheet). An application that starts a proceeding must be in the approved form, Form 5 (r 26(1)). It must name as respondents everyone directly affected by the relief, list the affidavits the applicant will rely on, specify the orders sought, state the Act and section relied on if the application is made under an Act, and specify the hearing day (r 26). In the District Court or a Magistrates Court, the application or its material must show the court has jurisdiction (r 26(8)).

When you need it

• An Act or the UCPR requires you to apply to the court rather than sue by claim. The court's fact sheet gives a family provision claim under section 41(1) of the Succession Act 1981 as an example.
• The only or main issue is a question of law and the facts are not substantially in dispute.
• The relief is urgent and there is not enough time to prepare a claim and statement of claim.
• Do not use it for an application within an existing proceeding. Form 5 starts a new proceeding.

1. 1

   Complete the heading

   Choose the court, then add the registry and the names of the applicant and each respondent. The proceeding number is allocated when the application is filed.

2. 2

   Set out the orders sought

   List the orders in numbered paragraphs. Where an order is sought under a rule or a section of an Act, state the rule number or the Act and section (r 26(6)). Include any costs order you seek.

3. 3

   Leave the hearing details for the registry

   The registry lists the application and notes the hearing date and time on the original and the service copies (r 26(7)). The court's fact sheet says applications are listed to start at 10.00am, so have some alternative dates ready.

4. 4

   List your affidavits and options

   List each affidavit you will rely on, including any still to be sworn (r 26(4)). Keep the optional paragraphs only if they apply: suing or being sued in a representative capacity (r 18), or relying on the cross-vesting laws, which applies only in the Supreme Court (r 53).

5. 5

   Give a time estimate and the applicant's particulars

   Estimate the hearing length in hours or minutes. Complete the applicant's particulars: name, residential or business address, solicitor's details and address for service, or if you have no solicitor, your own address for service, phone number, and fax and email if any (r 17).

6. 6

   Sign and list who is to be served

   The applicant or solicitor signs, describes the signatory and dates the application, then fills in the name and address of each respondent to be served.

• File in the central registry of the court or in the district where a respondent lives or carries on business, or where the cause of action arose (r 35).
• A filing fee applies. Check the current fee schedule. The court's fact sheet notes you can apply to the registrar for a fee reduction if paying would cause financial hardship.
• File and then serve the application on each respondent at least 3 business days before the hearing day, with the service day and hearing day not counted (r 27(1)). Your supporting affidavits must also be filed and served at least 3 business days before the hearing (r 28).
• An originating process must be served personally (r 105).
• A respondent cannot file a notice of intention to defend an application, but may file and serve a notice of address for service in Form 8 (r 29).

• Name everyone directly affected by the orders as a respondent, unless a rule or law allows the application to be heard without notice (r 26(2) and (3)).
• If the application is not served in time, the court will only hear it on that day in limited circumstances, such as the respondents consenting or the court being satisfied they will suffer no significant prejudice (r 27(3)).
• There are no pleadings in an application. The dispute is explained through affidavit evidence, so the court's fact sheet suggests both sides prepare a short written outline of argument for the hearing.