Application (Form 23)

Part 18 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) covers applications for court orders other than a judgment after trial. A party applies by lodging the approved form, which is Form 23, or orally at a hearing with the court's leave (r 109(2)). Before lodging, the party must confer with the other party to try to resolve the issue (r 109(3)). A written application must be lodged with a supporting affidavit (r 110) and, unless the rules or the court say otherwise, served on every other party after it is lodged (r 111). The other party then has 14 days after service to lodge and serve a response (r 112), and if no response is lodged a registrar may grant the application or refer it to a magistrate (r 113A). The court publishes separate versions of Form 23 for general procedure claims and minor case claims, as well as an older generic version.

When you need it

• You are a party to a general procedure claim and want an order before trial, for example summary judgment, dismissal of a claim or counterclaim, or leave to rely on expert evidence (Fact Sheets 21A and 50 give these examples).
• You cannot serve a document and want an order for substituted service or for service to be dispensed with. That application need not be served and may be dealt with in the absence of the parties (r 109A).
• You want a summary or default judgment set aside. The application must be made within 21 days after the date of the judgment, or such other time as the court orders (r 79).
• You need to correct a party's details, such as a misspelt name, or need leave to lodge a further witness statement after one has been lodged and served.

1. 1

   Use the right version

   For a general procedure claim use "Form 23 - Application in a General Procedure Claim", which comes in three parts: court registry copy, claimant's copy and defendant's service copy. Minor case claims have their own version. The older generic Form 23 (marked as at 01/09/2008) still says a response is due 3 working days before the hearing, which no longer matches r 112.

2. 2

   Complete the heading

   Enter the registry, case number and the claimant and defendant exactly as they appear on the claim.

3. 3

   Set out the orders sought

   Select the party making the application, then under "Nature of order sought" list each order you want as a separate numbered item, in the words you want the court to use. The other party must say whether it consents or objects to each order (r 112(1)(a)), so separate orders make the response and the decision clearer.

4. 4

   Tick the boxes that apply

   The general procedure version has a box asking for the application to be dealt with in the absence of the parties with service dispensed with, and a box confirming that conferral with the other party has occurred, as r 109(3) requires.

5. 5

   Sign, date and address it

   The applicant or their lawyer signs and dates the form. In the "To" boxes enter each party to be served and their address for service.

6. 6

   Complete the lodged-by panel

   Tick who is lodging and give an address for service and contact details. An unrepresented individual's address for service must be their usual residence, principal place of business or postal address (r 102(2)).

7. 7

   Prepare the supporting affidavit

   Set out the facts relied on in a Form 2 General Form of Affidavit (r 110). Keep it to facts within the deponent's own knowledge, or state the source of any information and belief (r 115).

• Lodge through eLodgment on the eCourts Portal. Electronic lodgment is mandatory in the court's civil jurisdiction unless you are exempt (r 98C; Practice Direction 6 of 2021).
• The supporting affidavit must be signed and presented in PDF format; keep the signed original in case the court asks for it (r 98E(5) and (6)).
• The court's fee schedule lists a filing fee for an interlocutory application, summary judgment or assessment of damages on Form 23. Fact Sheet 21A says applications dealt with without attendance do not require a fee. Check the current fee schedule.
• After lodging, serve a sealed copy of the application and the affidavit on every other party (rr 100 and 111), then lodge proof of service: a Form 11 Affidavit of Service if you served it yourself, or the bailiff's Form 10 certificate (Fact Sheet 21A).
• The other party has 14 days after being served to lodge and serve a Form 24 Response, plus an affidavit unless it consents to every order (r 112). The court may then list a hearing or decide the application without one.

• Confer with the other side before lodging and be ready to show that you did. Rule 109(3) makes it a precondition, and the form asks you to confirm it.
• Download the current general procedure version from the court's forms page rather than reusing an old copy; the 2008 generic version states a response time that the rules no longer use.
• If you lodge the application and then do not attend the hearing, the court may make orders in your absence, including dismissing the application (Fact Sheet 21A).