What Does Application In A Court Case Mean?
There are many complicated and confusing legal terms that the general population simply does not encounter regularly. We are here to clear some of them up!
So, what is the definition of application in a court case? Application is a legal term meaning a request or petition made to a court or judge; notice given to the other party; written statement submitted in support of an application. Note that many people use “application” as another word for “appeal”. This is incorrect and should be avoided.
Keep reading to learn more about this topic!
When Is Application Used?
An application is made when a party to legal proceedings makes a formal request to the court for an order or direction in respect of some matter involved in those proceedings.
This may take the form of an informal letter addressed to one of the judges, or it may involve serving and filing a notice (or application writ) which is a formal document setting out the terms of the application.
Definition Of Court Case
A court case is a legal conflict between two or more parties in which one side, known as the plaintiff, accuses the other of wrongdoing and seeks action to remedy that wrong. The defendant may apply with the court to dismiss or stay proceedings, or to recover costs. This article discusses the definition of “application” within a court case.
How Application Is Used In A Court Case
In a civil case, an application is made in most instances to either:
1. A higher court with jurisdiction or power to review lower court decisions.
An appeal is usually taken by filing a notice of appeal; the time for filing this notice is strictly limited; failure to file the notice of appeal within this time is fatal to an appeal.
2. A trial court with the power to review its own decisions through what is called a “motion for reconsideration.”
A party who wishes to seek appellate review, however, must file a notice of appeal within the time set by statute. The appellate court will not consider the matter until the appellant has filed a notice of appeal, to which is attached a copy of the judgment or order being appealed.
In criminal cases and some limited civil and appellate matters, an application may be made directly to this court without having first obtained relief from another court. However, many civil and family law matters must go through the Supreme Court to be heard.
A motion is a form of an application made to the court for an order or direction in the conduct of proceedings in action or summary procedure.
A party may seek any order that can be granted by way of application, but in certain cases must make a move because there are no available remedies at common law and only the court can provide relief.
Notice Of Motion
The notice of motion (or simply “motion notice”) is the document that sets out the order or direction sought. It must be served on all parties to the action, accompanied by an affidavit setting out particulars of the facts relied on by the party making the motion.
The party seeking relief must also file a memorandum of law in support of the motion. This is a brief containing submissions on why an order should be made.
A party must neither serve nor file any other document concerning the motion except by leave of the court or by consent of all parties involved. This means that if one wants to rely on something that was not included at the time he made the motion (or later), he will have to seek the court’s permission to do so.
The Principal Kinds Of Motions Are:
1. A notice of motion for an order like “interim” relief.
This is usually made on an ex parte (without notice) basis, but must be served at least one day in advance of the hearing. In some cases, where a party would suffer immediate irreparable harm if relief is not granted on an emergency basis, this notice may be served less than a day in advance. This motion is made without notice.
2. A motion for an order that a particular issue or question shall have priority in the proceedings.
This is claim is made on the ground that it will otherwise be unduly delayed or that some other party will suffer undue prejudice. This type of motion is ordinarily made on notice, which must be served at least 7 days before the hearing (15 days if made in the Court of Appeal).
3. A motion to vary an order previously given.
The party against whom the order is sought must be given at least 7 days’ notice of this motion.
4. A motion to rescind an order previously made.
At least 7 days’ notice of such a motion must be given to the other party or parties.
5. A motion that an action or proceeding be dismissed for want of prosecution when the court is not sitting.
Notice of at least one clear day must be served on the parties to whom the motion is directed.
6. A general notice of motion is given in advance.
This can result in numerous notices or motions being heard by the court at a single hearing (e.g., an application for special costs against an unrepresented litigant who fails to comply with a court order).
A motion for rehearing may be made. The power to grant a rehearing is discretionary and depends upon the nature of the order or direction that was given in the first instance.
When this has been one which grants an interlocutory (not final) relief, such as an order for the production of documents only, the court may not be prepared to hear a full rehearing and will direct that any further application should be made on notice as if it were an appeal.
Motion For Review
A motion for review of a procedural order is brought under Rule 53(24) of the Rules of Court. It must first be demonstrated to the satisfaction of the court that a substantial wrong or injustice has been caused by the order in question and then if in the judge’s opinion, there is sufficient ground to review it, he will either rescind or vary the original order.
A motion for a new trial on a particular issue is governed by Rule 60(b) of the Rules of Court. The court may make an order for a new trial on the ground that there has been a miscarriage of justice because of fraud, accident, or some other reason affecting the result.
These are applications made after judgment to enforce or set aside judgments or orders already obtained either under section 48(1) of the Supreme Court Ordinance (Cap. 4), or section 48 of the Old Court of Judicature (Consolidation) Ordinance.
There Are Four Principal Types:
1. An application to enforce a judgment.
This is made on notice after the time for appeal has expired. The principal ones are an application under section 48(1)(a) to enforce a judgment for the payment of money, and an action on the judgment under section 48(1)(b) to enforce an order or award of damages.
2. An application to set aside a default judgment may be made without notice.
This happens if it appears upon affidavit that either no notice was served upon the defendant, or he did not appear at the time when the judgment was entered, or the time for making an application to reverse it has not expired.
Otherwise, a notice of at least one clear day must be served on the party against whom it is sought to set aside the default judgment.
3. An application under section 48 (2)(a) to set aside a judgment by confession must be made on notice served at least 7 days before the hearing.
4. An application under section 48(2)(b) to set aside a judgment by default must be made within 28 days after the entry of the judgment or order.
In addition, it can be made within such an extended period as the court allows. Notice of at least one clear day must be served on the party against whom it is sought to set aside the judgment.
Where an order has been made by consent of the parties, no application for rescission or variation may be made. It can’t be made in a subsequent action in any other Court in which a fresh cause of action arises in respect of the same subject matter.
The exception is with leave of that court unless the defendant has not been served with notice of the application for rescission or variation.
Importance To Hire A Good Legal Team
There are many reasons why it is important to hire the proper professional in a court case. If you do not, you may end up losing your case, regardless of how valid your claims might be. Some laws and procedures must be followed when taking part in any legal situation – usually, these apply even if you have brought forth the right evidence.
For this reason, you need to ensure that the law firm you hire has experience in this particular field of law. Consulting with various attorneys can be time-consuming, so it is best if they have already worked in similar cases – they will know how to handle all of your needs promptly.