Originating Application Intended to be Served (Form 37)

Rule 29A of the Magistrates Court (Civil Division) Rules 1998 (Tas) says that a proceeding which an Act allows to be commenced by application to the Magistrates Court is to be commenced by an originating application, in an approved form, filed in a registry. Form 37 is the version used when the application will be served on a respondent. It states the orders sought, the legislation relied on, and the hearing or mention date, and it includes a 'Notice to person served' telling respondents to file a notice of appearance within 7 days if they want to take part (r 29C). The form states that the applicant must file and serve an affidavit explaining why the orders are sought. Money claims are not brought this way: they start with a claim (Form 1) under rule 25.

When you need it

• An Act gives the Magistrates Court power to make an order on application, and the proceeding is not a money claim.
• The respondent or other people need to be given notice and an opportunity to be heard.
• If no one needs to be served, use the Originating Application Not Intended to be Served (Form 38) instead.

1. 1

   Heading and parties

   Enter the registry and its address, and the applicant and respondent. In 'To', give the name and address of each respondent.

2. 2

   Applicant and orders sought

   Give the applicant's name and address (and capacity, if relevant) and specify the orders sought or the questions the Court is asked to decide. Number them.

3. 3

   Legislation

   Insert the Act and section the application is made under. This is what gives the Court power to hear it (r 29A(1)).

4. 4

   Notice of hearing

   Record the hearing or mention date, time and court. Check with the registry how the date is allocated, because service must be at least 9 clear days before it (r 29B(1)).

5. 5

   Notice to person served

   Leave the printed notice in if the Rules require an appearance. The form says to omit or strike it out where no notice of appearance is required.

6. 6

   Sign and footer

   The applicant signs and dates it, and completes the 'filed by' footer with an address for service. Prepare the supporting affidavit at the same time.

• File the application in a registry (r 29A(3)) with the supporting affidavit. Outside an action, the proceeding is conducted at the Court closest to where the respondent lives or the cause of action arose (r 30(2A)). Check the fees page for the filing fee.
• Serve it as an originating process: personally, by registered post to the usual home or business, by leaving it with a person apparently 16 or over at that address, or for a company at its registered office (r 40(1)). If you use registered post, file the posting and delivery receipts with the affidavit of service (r 40A).
• Time for service in Tasmania: at least 9 clear days before the hearing if an appearance is required, or 2 clear days if not (r 29B(1)-(2)). Service outside Tasmania needs more time (r 29B(3)).
• Prove service by affidavit (r 43), using the Affidavit of Service (Form 3). Do not serve on Good Friday or Christmas Day (r 40(4)).

• Check the Act you rely on: it may set its own requirements about who must be notified or what must be shown.
• A respondent who has not entered a required appearance is generally not heard on the application (r 29C(3)), but that does not relieve you of proving your case at the hearing.
• Serve the affidavit with the application so the respondent knows the case they must meet.