Summons (Interlocutory) (Form 46A)

Order 46 of the Magistrates' Court General Civil Procedure Rules 2020 governs interlocutory and other applications in a proceeding. An application made on notice to another person must be made by summons, unless the Court orders otherwise, and supported by affidavit (r 46.02(1)). The summons must be in Form 46A and filed with a registrar at the proper venue (r 46.04). The application is made when the summons is filed (r 46.02(2)). The court's guide describes interlocutory orders as procedural orders that help a matter along, such as extending the validity of a complaint or allowing documents to be filed out of time.

When you need it

• You need a procedural order in an existing Magistrates' Court civil case and the other side must be given notice.
• Examples from the court's guide: orders that a party follow the court's directions, an extension of the validity of a complaint, or leave to file documents outside the usual time limits.
• In a federal jurisdiction residential tenancy matter, the court's page says Form 46A with an affidavit is used to ask for the 21-day notice period to be shortened.

1. 1

   Fill in the heading

   Use the case number, venue and party details from the complaint, and your filing details.

2. 2

   Say who the summons is addressed to

   Identify each party or other person to be summoned, and give the address of anyone who is not a party.

3. 3

   Name the applicant and the orders sought

   Insert the applicant's name and describe each order you want the Court to make, clearly enough that it could be made in those words.

4. 4

   Hearing details

   The venue, date and time of the hearing are inserted when the summons is issued.

5. 5

   Filing details

   Complete the name and address of the lawyer who filed it and the party they act for, or your own details if you act for yourself. The registrar signs the summons.

6. 6

   Prepare the affidavit

   The application must be supported by an affidavit (r 46.02(1)) sworn or affirmed before an authorised person.

• File the summons with a registrar at the proper venue (r 46.04(2)). The court's guide says to file the original and two copies of the summons and the affidavit with the court where the complaint was made, with copies of the pleadings (the complaint and any notice of defence), in person or by post.
• A filing fee applies - check the current civil fees page.
• Serve a copy of the summons and any affidavit in support on every person who is to get notice (r 46.05(1)), within a reasonable time before the hearing and no later than 2.00 pm on the day before, or 2.00 pm on the last day the office was open before the hearing (r 46.05(2)).
• The person who served it completes an affidavit of service (Form 6A).

• Attend the hearing. If the applicant does not attend, the Court may dismiss the application (r 46.07(2)); if a person served does not attend, the Court can hear it without them if satisfied of service (r 46.07(1)).
• If the summons has not yet been served, a registrar can amend it once to a new hearing day (r 46.05.1).
• An application to re-hear a case decided in your absence uses a different form, Form 46B (rr 46.08, 46.09).