18.1 Applications for court orders to be made by motion
(cf SCR Part 19, rule 1; DCR Part 16, rule 1; LCR Part 15, rule 1)
An interlocutory or other application is to be made by motion unless these rules otherwise provide.
(cf SCR Part 19, rule 2; DCR Part 16, rule 2; LCR Part 15, rule 2)
(1) A person may not move the court to make any order unless notice of motion has been filed and served on each person affected by the proposed order.(2) Despite subrule (1), a person may move the court to make an order without notice of motion having been filed or served on a person if:(a) that person consents to the making of the order, or(b) the preparation, filing or service of the notice would cause undue delay or other prejudice to the person by whom the order is sought, or(c) the court dispenses with the requirement for such notice to be filed or served, or(d) under these rules or the practice of the court, the motion may be made without the prior filing or service (as the case may be) of notice of motion.
18.3 Contents of notice of motion
(cf SCR Part 19, rule 2 (4) and (5); DCR Part 16, rule 2 (3) and (4); LCR Part 15, rule 2 (3) and (3A))
(1) A notice of motion for an order:(a) must identify the person by whom the order is sought:(i) if the person is already a party to the proceedings, as that party (for example, as first plaintiff or second defendant), or(ii) if the person is not yet a party to the proceedings, as the applicant, and(b) must identify each person affected by the order:(i) if that person is already a party to the proceedings, as that party (for example, as second plaintiff or first defendant), or(ii) if that person is not yet a party to the proceedings, as the respondent, and(c) if the person by whom the order is sought is not already an active party, must state an address for service for that person, and(d) unless the motion is to be moved in the absence of the public, must state the date and time when, and the place where, the motion is to be moved, and(e) if the court makes an order as to the time by which the notice is to be served, must bear a note of the order made, and(f) must state concisely the nature of the proposed order.(1A) In the case of proceedings in Class 1, 2, 3 or 4 of the Land and Environment Court’s jurisdiction, a notice of motion must identify a person who is not yet a party to the proceedings by name alone, and not as the applicant or respondent as required by subrule (1) (a) (ii) or (b) (ii).(2) Costs need not be specifically claimed in the notice of motion.(3) If a notice of motion is of a kind that, under any Act, any rules of court or any practice of the court, is dealt with in the absence of the public, the notice of motion must contain a statement to the effect that the motion is to be so dealt with.(4) If it becomes necessary for an application under subrule (3) to be dealt with in court, the registrar is to refer it to the court and give notice to the parties that the application has been so referred.
18.4 Time for service of notice
(cf SCR Part 19, rule 3; DCR Part 16, rule 3; LCR Part 15, rule 3)
Unless the court orders otherwise, a notice of motion must be served at least 3 days before the date fixed for the motion.
18.5 Notice to be personally served on persons who have not entered appearance
(cf SCR Part 19, rule 4; LCR Part 15, rule 2 (4))
A notice of motion must be personally served if the person on whom it is to be served:(a) is not a party to the proceedings, or(b) is a party to the proceedings, but is not an active party (otherwise than because the party has failed to comply with the requirements of these rules with respect to entering an appearance).
18.6 Hearing of interlocutory applications
(cf LCR Part 15, rule 5)
(1) A party’s notice of motion in any proceedings must include, so far as practicable, all applications that the party desires to make in relation to the proceedings and that, having regard to the nature of the proceedings, can conveniently be dealt with at the one time.(2) On the hearing of a party’s notice of motion, any other party may make any application in relation to the proceedings.(3) If on the hearing of a party’s notice of motion, any other party makes an application under subrule (2), the court:(a) may deal with both applications at the hearing, or(b) may adjourn the hearing and, if appropriate, may direct any necessary notice of motion to be given to the other parties.
18.7 Motion may be dealt with in party’s absence
(cf SCR Part 19, rule 5; DCR Part 16, rule 5; LCR Part 15, rule 5 (2A))
If service of a notice of motion on any party is required by these rules, and notice of motion has been duly served on that party, the court may hear and dispose of the motion in the absence of that party.
(cf SCR Part 19, rule 8)
(1) If notice of a motion for any day has been filed or served, and the motion is not disposed of on that day:(a) the court may hear and dispose of the notice of motion on any later day fixed by the court, and(b) subject to subrule (2), filing or service of a further notice of motion is not required.(2) Subrule 1 (b) does not apply:(a) if the court directs the filing or service of a further notice of motion, or(b) if service is required on a person on whom notice of motion has not previously been served.
18.9 Directions as to conduct of proceedings on notice of motion
(cf SCR Part 34, rule 6 (1))
In proceedings on a notice of motion, the court may give directions as to the order of evidence and address and generally as to the conduct of the proceedings.