District Court Rules

ORDER 40C

PROCEDURE IN STATUTORY APPLICATIONS BY NOTICE OF APPLICATION

1 Definitions

1. (1) In this Order—

‘relevant authority’ means any agency, board, authority, commission, council, ombudsman, tribunal, or other body (not including a company formed under the Companies Acts) established by or under an enactment, which is authorised by an enactment:

(a) to exercise powers under an enactment to determine or decide, any complaint or issue, or

(b) to issue any notice or order addressed to a person requiring the taking or ceasing of any action,

and includes, where the context so requires, any committee, officer or member of the staff of such a body who has been authorised by an enactment or by such a body to exercise those powers;

‘relevant application’ means any of the following applications-

(a) an application to the Court under an enactment by a person authorised by law to apply to the Court for an order directing, requiring or compelling a person to take any step or do any thing (including, without limitation, to provide information or to produce a document or thing) or prohibiting or restraining a person from, or directing a person to cease or refrain from, taking a step or doing a thing (in the remainder of this Order, referred to as a ‘direction application’),

(b) an application to the Court by a person authorised by law to apply to the Court, for an order of the Court directing, requiring or compelling a person to perform, comply with, carry out or implement, or for the enforcement of, a decision, determination, notice or order of a relevant authority (in the remainder of this Order, referred to as an ‘enforcement application’) but does not include:

(i) any application for the issue by the Court or the Clerk of any order for execution of any such decision, determination, recommendation, or settlement which an enactment provides may be enforced or executed as, or in the like manner to, a judgment of the Court; or

(ii) any application for the issue of a summons; or

(iii) any claim for damages (which must be commenced by claim notice);

(c) except where a particular procedure for such an application is specified in another Order of these Rules, an application to the Court under an enactment by a person authorised by that enactment to apply to the Court, for any licence, certificate, authority or permission or, as the case may be, for the restoration of, or other relief from disqualification from holding or restriction on holding any licence, certificate, authority or permission (in the remainder of this Order, referred to as a ‘licence application’),

(d) except where a particular procedure for such an application is specified in another Order of these Rules, any other application to the Court for relief under an enactment (other than relief by way of damages, liquidated or unliquidated) which is, required, authorised or permitted by these Rules to be brought or made in accordance with this Order.

(2) Where an enactment provides for or permits a relevant application to be made to the Court or to a Judge and no other provision is made for the applicable procedure either by the enactment concerned or by these Rules, the procedure set out in the following rules applies.

(3) sub-rule (2) is subject to any requirement of the relevant enactment.

2 Venue for relevant application

2. (1) A relevant application must be brought:

(a) in the case of a direction application or an enforcement application, in the Court area where the person or one of the persons against whom an order or other relief is sought resides or carries on any trade, profession or business;

(b) in the case of a licence application:

(i) in the Court area where the applicant intends, in reliance on the licence, certificate, authority or permission sought (or, as the case may be, sought to be restored) to carry on any trade, profession or business; or

(ii) where the licence, certificate, authority or permission is not sought for the purpose of a trade, profession or business, in the Court area where the activity permitted by the licence, certificate, authority or permission is intended to be conducted; or

(iii) where the application is for the restoration of, or other relief from disqualification from holding, any licence, certificate, authority or permission, in the Court area where the disqualification or restriction concerned was imposed; or otherwise

(iv) in the Court area where the applicant resides.

(2) sub-rule (1) is subject to any provision or requirement to a different effect in the relevant enactment.

3 Commencement of relevant application

3. (1) The relevant application must be made by notice of application (in the remainder of this Order, referred to as ‘the notice of application’).

(2) The notice of application must be in Form 40C.01, Schedule C, modified as appropriate to the case, and must include particulars of the relief sought appropriate to the case.

(3) The notice of application must be entitled in the matter of the provision of the enactment under which the application is made.

(4) Where any order, direction or other relief is sought against any person, the notice of application must also be entitled as between the applicant as applicant and such person as respondent, and must contain the names and addresses of the applicant and of each respondent.

(5) Where the application is authorised by an enactment to be made ex parte, or where no order, direction or other relief is sought as against any person or persons, the notice of application must be entitled in the matter of the provision of the enactment pursuant to which the application is made and on the application of the applicant, and must contain the name and address of the applicant.

(6) The notice of application must specify the particular relief sought against each respondent and the particular provision of the relevant enactment authorising the granting of each such relief.

4 Documents to be attached to the notice of application

4. Where the relevant application is an enforcement application, a true copy of the decision, determination, notice or order concerned, if in writing, must be attached to the original notice of application and to any copy of the notice of application served on any respondent.

5 Evidence required at hearing in every case

5. (1) The applicant must adduce at the hearing of every relevant application:

(a) evidence of the standing and authority of the applicant to make the application under the relevant provision of the enactment;

(b) if the applicant is acting in a representative capacity, or relief is sought against any respondent in a representative capacity, evidence of the capacity of the applicant or, as the case may be, the respondent;

(c) evidence of the facts or circumstances which it is alleged authorise or entitle the applicant to make, or justify the applicant in making, the application and which support the granting of the relief sought; and

(d) all correspondence and documents passing between the applicant and each respondent (if any), or otherwise issuing from any of them, relevant to the matter or matters in respect of which relief is sought, but not including any correspondence or document which, by law, a person is obliged or entitled to refuse to produce.

(2) sub-rule (1) does not operate to limit the evidence which the applicant is required to adduce at the hearing of the relevant application.

6 Period of notice

6. (1) Not less than 21 days’ notice of an application by notice of application must be given to the Court.

(2) Each respondent must be served, in accordance with Order 41, with a copy of the notice of application (and copies of any documents required to be attached) not later than seven days before the return date.

(3) A statutory declaration as to the service of the notice of application on each respondent must be lodged with the Clerk not later than seven days before the return date.

(4) Where the relevant enactment requires prior publication of notice of the intended application, a print of the newspaper or other publication in which notice was published must also be lodged with the Clerk within the time specified in sub-rule (3).

(5) sub-rules (1) and (2) are subject to any provision or requirement to a different effect in the relevant enactment.

7 Orders which may be made by Court on return date

7. (1) On the return date, the Court may:

(a) hear the application; or

(b) give directions and make orders for the conduct of the proceedings as appear convenient for determining the application in a manner which is just, expeditious and likely to minimise the costs of those proceedings.

(2) Directions and orders under sub-rule (1)(b) may, where appropriate, include:

(a) directions that notice of the application be served on any other person, including mode of service and the time allowed for such service;

(b) directions that the parties furnish written submissions to the Court and deliver those written submissions to one another;

(c) an order directing the delivery and filing of any affidavit.

8 Application to vary or discharge an order

8. (1) Where the relevant enactment permits any subsequent application to vary or discharge an order made by the Court on the relevant application, the application to vary or discharge the order must be made by notice of motion to vary or discharge (as the case may be).

(2) A notice of motion to vary or discharge must be in Form 44.02, Schedule C, modified as appropriate to the case. The notice must include particulars of the relief sought appropriate to the case.

(3) Not less than 21 days’ notice of an application to vary or discharge must be given to the Court.

(4) The applicant for the original order and every respondent served with that application must be served, in accordance with Order 41, with a copy of the notice of motion to vary or discharge not later than seven days before the return date.

(5) A statutory declaration as to the service of the notice of motion on each respondent must be lodged with the Clerk not later than seven days before the return date.

(6) sub-rules (3), (4) and (5) are subject to any provision or requirement to a different effect in the relevant enactment.

[SI 17/14]

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