Applications in the Queensland Courts – a short guide

There are two types of applications:

• An Originating Application (Form 5) is a document that commences certain types of court proceedings;
• An Application in a proceeding (Form 9) is a document that is used for an application that is brought in court proceedings that have already commenced.

Originating Application versus Claim

The main difference between court proceedings commenced by claim and those commenced by originating application are that proceedings commenced by claim require pleadings. Pleadings are of use to the court when there are serious disputes of fact between the parties (pleadings narrow the issues of fact to be decided).

Originating Applications are rarer. Most commonly, Originating Applications are used for cases such as:

• Applying for further provision from the estate of a deceased person under section 41(1) of the Succession Act 1981 (family provision)
• Applications under the Corporations Act 2001 to wind up a company based on a failure to comply with a statutory demand, or to have a statutory demand set aside
• Certain applications under the Property Law Act 2023 (e.g. for the possession of a property, for the appointment of trustees for the partition and sale of a property) and the Status of Children Act 1973.

You should use an Originating Application when the Uniform Civil Procedure Rules 1999 (UCPR) or another Act require or allow a person to apply to the court for relief: (rules 10 and 11 UCPR).

You can (but don’t have to) use an Originating Application in cases where:

• there are not going to be substantial disputes of fact; or
• urgent relief is sought; or
• there is not a respondent (rule 11), although this is very rare.

If you complete an Originating Application:

• you will have to pay a court filing fee;
• the court will set a hearing date;
• in most cases you will need to serve the Respondent; and
• the court can make an order requiring the parties to exchange pleadings, if it considers that these are required (rule 14).

Completing an application form

You can find the court forms are on the court’s website.

For an Originating Application use a Form 5, for an Interlocutory Application use a Form 9. The application forms ask you to give an estimate of the time it will take the Court to consider the event. For a contested application, with affidavit material and written submissions to read, as well as oral argument to hear, at least 45 minutes will usually be required.

Originating Application

For an Originating Application, the Applicant is the person seeking relief, the Respondent is the person you are seeking relief from. Note that for some rare Originating Applications, there will not be a Respondent because the order that you are asking the court to make is not against any other person.

• For example:

John is seeking a declaration of paternity under section 10 of the Status of Children Act 1978 that Joseph Grande was the father of John’s deceased mother Mary. Joseph passed away in 1960. There is no Respondent to this Application.

When you write the orders that you are applying for always write the section of the Act or the rule that gives the court the power to make the orders that you are asking for. This is the section or rule that you are “relying on.”

• For example:

That pursuant to section 38 of the Property Law Act 1974 John Smith Solicitor be appointed as trustee for the sale of the property at 100 John Road, East Brisbane, described as Lot 1 on RP 765 432 County of Stanley, Parish of Bulimba, Title Reference 1098 7654.

Interlocutory Application

For an Interlocutory Application in an existing proceeding, just use the parties’ descriptions in the existing proceedings (e.g. Plaintiff, Defendant, Third Defendant added by Counterclaim, etc).

When you write the orders that you are applying for always write the rule or the section of the Act that gives the court the power to make the orders that you are asking for. This is the rule or section that you are “relying on.”

• For example:

That pursuant to rule 377(1)(a) of the Uniform Civil Procedure Rules 1999 the Plaintiff have leave to amend the Statement of Claim in accordance with exhibit A to the affidavit of Joe Bloggs filed 21 June 2013.

For an Interlocutory Application it is also worth considering:

• Should the court set a time limit on when the Respondent must comply with the order?
• What will happen in the event that the Respondent does not comply with the order?
  • If the order does not say what happens if it is not complied with, then you may need to make a further application to enforce the order or respond to the breach. Sometimes an order will say that if the Respondent does not comply then the Respondent’s case can come to an end; this will usually happen when the Respondent has previously been in breach of the rules.
• If you have previously sent a Rule 444 letter and are bringing an application to progress your matter, do the orders that you are seeking match the relief you mention in your Rule 444 letter?

Costs

The general provision is that “costs follow the event.” This means that the successful party’s costs are paid by the unsuccessful party. A self represented party is generally entitled only to their disbursements (filing fees etc.)

Other orders

You can also ask the court to make “such further orders as the Court considers appropriate.”

Affidavits

• Your Application should list the Affidavits you will rely on to support your application. You should list these by the name of the person giving the affidavit (deponent) and the date the affidavit is sworn.
• You do not have to file all of your affidavits at the time that you file your Application, although you should list that you expect to file an affidavit from that other person.
• For example:

Affidavit of Derek Dawson to be filed.

• If you are filing any affidavits after you have filed your application, you should file and serve these as soon as possible. You can ask for the leave of the court to file these on the day of your hearing if necessary.

Preparing an Affidavit

Chapter 11, Part 7 of the UCPR contains the formal rules for preparing an affidavit.

Serving the application documents

Once your Application is filed, you should serve it on the other party as soon as possible. Under the UCPR, material for an application needs to be served at least three business days before a hearing (Rule 28 UCPR).

For example, if a hearing is to be heard on a Friday, the material should be served by Monday.

The Court can give leave to rely on material that is provided less than three business days before the hearing (Rule 28(2)).

Ex parte applications

In some circumstances an application can be made ex-parte, which means that only the Applicant appears at hearing, and that the Respondent is not served with the application and does not appear at the hearing.

Ex Parte Applications are rare, they are usually brought in urgent situations. For example, when you are seeking a freezing or preservation order about property that is at serious risk of being destroyed or removed from Queensland before the court has a chance to make a final decision in the matter (Chapter 8 Part 2 of the UCPR).

Commencing court proceedings

This fact sheet should be used when you want to bring a claim for damages in the Magistrates, District or Supreme Courts.

There are a number of issues which you should consider before bringing a claim such as:

• Has the relevant time limit or “limitation period” expired?
• Are there alternative avenues for recovering damages, such as a letter of demand or mediation?
• Do I have a legal “cause of action” that might entitle me to damages (just because you have a grievance, does not mean you will necessarily be entitled to damages)?

Starting proceedings in court claiming damages is a serious step. There may be serious cost consequences for you if your claim is not successful. There are a number of different sources of free legal advice (such as Legal Aid and community legal centres) that you should consult before you start a claim.

This fact sheet is designed to help you get started.

Before we get started

In this factsheet, “UCPR” means Uniform Civil Procedure Rules 1999.

The UCPR are the formal rules that set out how civil court claims must be conducted, from the first step to initiate proceedings right through to what to do after the court has made final orders after a trial. If you ever need to know what the next step is in your court proceedings, or how to complete a particular step, you can look it up in the UCPR.

Step 1: Select the court (and registry)

Once you have decided to bring a claim and confirmed that you have a valid cause of action, the first step is to decide in which court and in which registry to bring your claim.

You firstly need to ask – what result do I want?

The table below shows in which court you should bring a claim, based upon the amount of damages that you are claiming.

In some cases, you will want the court to do something other than award compensation. You might want the court to make a declaration, to order specific performance of an agreement or to grant an injunction preventing a defendant from doing something. In such a case you must bring your claim in either the District or Supreme Courts.

Once you have decided which court you need to use, you will need to select the correct registry. Unfortunately, you cannot necessarily bring your claim in the registry that is most convenient to you. You must bring your claim in the registry where:

• The defendant is located; or
• Where the incident or contract giving rise to the claim occurred.

If your claim needs to be started in a registry that is outside Queensland, stop now! This factsheet is only relevant for claims commenced in Queensland.

It is important to be clear about in which court and which registry to start your claim. If you select the wrong court or the wrong registry, your claim may need to be transferred, which could be expensive for you.

Chapter 2, Part 6 of the UCPR has more information about selecting the correct court and registry.

Step 2: Drafting a Statement of Claim

For information on drafting a Form 16 statement of claim, see our Drafting a Statement of Claim – tips and examples factsheet.

Step 3: Filing and service

“Filing” a document means placing a copy of the document on the court file, which is held at the court registry. The contact details of each court registry are available on the Queensland Courts website.

Keep both your claim and your statement of claim together.

You will be required to pay a filing fee at the time of filing your claim, unless you apply for a fee waiver. Current filing fees are contained in the Uniform Civil Procedure Rules (Fees) Regulation 2009, available on the Queensland legislation website.

You can file your claim:

• In person: by taking 1 copy plus an additional copy for each defendant and one copy for you to the registry in person; or
• By post: by sending the required number of copies of your claim, with the filing fee and a reply-paid self-addressed envelope, to the registry to be filed. If you are filing by post, the Court Registry accepts no responsibility for any documents being delayed or lost in the post. We recommend that you file your Claim and Statement of Claim in person.

The registry will stamp and retain one of the copies of your claim. This will be kept on the court file. The registry will also stamp the other copies and return them to you.

You must then serve a copy of the claim on each of the defendants personally – ordinary post is usually insufficient. If your claim is not served properly, you may not be entitled to proceed with the claim.

Different forms of service, and how to properly serve court documents, are dealt with our Serving court documents factsheet. Alternatively, you can read the formal rules about service by checking Chapter 4 of the UCPR.

You must serve your claim as soon as possible – if you wait too long, you may not be entitled to proceed with the claim. See our Time limits – calculating time factsheet for more information. Make sure you keep a copy of the claim for your own future reference.

If you need more information about how to complete a claim and statement of claim, please contact the Self Representation Service.

Checklist

Commencing proceedings:

1. Do I have a cause of action? Please see our cause of action factsheet for more information.
2. What are the elements of that cause of action?
3. In which Court/Tribunal should I commence proceedings?
4. In which District should I commence proceedings?

Filing and serving the statement of claim:

1. Have I filed both my Claim and Statement of Claim at the appropriate court registry, either in person or by post? Note: You will be required to pay a filing at the time of your claim.
2. Have I served a copy of the Claim and Statement of Claim on each of the defendants personally? Note: this should be done as soon as possible. You must serve your Claim within one year.

Deciding to commence legal action

The following information may help you to decide whether you should start court proceedings. Ideally, you should always seek legal advice and assistance from a solicitor before commencing legal action.

Do you know what you want?

Before commencing legal action, it is important to identify what it is you want as a result of the legal proceedings. Is it compensation? Is it reinstatement of your job? Or is it simply an acknowledgement of fault and an apology? It is important to know this to determine, first, whether the court can in fact give you want you want and, second, whether what you want is worth the stress of going to court.

Do you have a cause of action?

It is not enough just to have a grievance. You must have a cause of action that is recognised by legislation or common law as giving rise to an entitlement to legal action. Negligence for example, is a cause of action. In common law, negligence has 3 elements to be proved – that another person owed you a duty of care, that the person breached their duty and the breach caused you damage. You cannot ask a court to hear a negligence claim if your claim does not satisfy all 3 elements. For example, the first two elements may be satisfied, but you may not have suffered any real damage (see our factsheet on Damages and loss).

Be aware that the court in which you raise your grievance must have power to deal with that grievance. Certain courts have the power to deal with certain causes of action. For example, negligence is a civil tort or wrong that courts exercising civil jurisdiction can hear. You cannot ask the Family Court to hear a negligence claim.

For more detailed information, see our Cause of action factsheet.

Do you have sufficient evidence?

You cannot just say what you think happened. You have to prove it; you have to produce evidence.

Evidence can be in the form of documents, sound and video recordings, written witness statements and oral statements made in court. Keep in mind that if a person gives evidence of an event, such as a car crash, then they normally have to have knowledge of that event first hand, that is, they personally saw the crash happen.

In addition, your evidence has to be believed. If you say one thing and the other party contradicts what you say, then the judge (or jury) has to decide which version he or she accepts. The judge will make the decision on the basis of considering all of the evidence and his or her assessment of the character of each witness. The solicitor or barrister for the other side will try to question the reliability or character of you and your witnesses and point out the negative aspects of your case.

For more detailed information about evidence see our Evidence and proof in civil proceedings factsheet.

Do you have a lawyer?

Legal action can be a complex and frustrating process. A lawyer can help you negotiate and understand this process and will give you the best chance of succeeding.

If you cannot afford a private lawyer, then some alternatives may be:

• A solicitor on a ‘no win, no fee’ basis – see the Queensland Law Society website
• A community legal centre – see the Community Legal Centres Queensland website.
• Legal Aid Queensland – see the Legal Aid Queensland website.
• A pro-bono lawyer (who provides legal assistance on a free or reduced fee basis) – see LawRight’s website.
• A mediator, for alternative dispute resolution – see the Department of Justice’s Dispute Resolution Services website.

In exceptional circumstances you may be able to ask the court to allow another non-legally qualified person to represent you, or at least help you in court by sitting beside you, take notes and give advice. You would need to show the court why you cannot represent yourself, for example, unable to attend court because you are in prison, English is your second language or you are unable to afford a lawyer.

If you are representing yourself, LawRight’s Court and Tribunal Services may be able to help you. See the LawRight website under Services for more information.

Other factors to consider before commencing legal action

Going to court should be a carefully measured decision. Representing yourself in court is NOT easy. There are many risks involved, and you should be aware of the possible consequences:

• It is expensive – if you lose you will likely be ordered to pay the legal costs of the winning party.
• It is very difficult to know the likelihood of success before you start proceedings. Do not let feelings of anger, injustice or retribution fuel you into pursuing your case through the courts. Make sure you have a valid cause of action and sufficient evidence in support.
• It is likely to be a long process.
• It can have adverse effects on other parts of your life, such as your health, relationships and family.
• Managing and presenting your own case requires compliance with the rules and practices of the court. Cases frequently revolve around the finer points of law or evidence, which can be difficult to understand and navigate.
• It can be extremely stressful.

Alternatives to court proceedings

Before commencing legal action, have you:

• Advised the other side of your complaint? It may be worthwhile writing to the other side, setting out your grievance, to give them an opportunity to put forward their point of view or even offer a solution out of court.
• Made a complaint to the relevant regulatory body? Depending on the type of dispute, you may be able to access dispute resolution processes offered by various regulating authorities such as the Office of Fair Trading or the Health Quality and Complaints Commission
• Tried mediation? The Department of Justice and Attorney-General provides mediation services which are generally free to the public and for a fee in relation to facilitations and workplace mediations. See their website or telephone 07 3728 7000 or 1800 017 288. See also LawRight’s fact sheet on Mediation – a short guide.

However, you need to be aware of any time limitations that apply to your case. If you do not commence legal action within the relevant time period, then it may be difficult or even impossible to have your matter heard. See our factsheet on Limitation periods for further information.

Cause of action

Not everyone who has suffered loss, damage or injury may claim against a person or organisation they believe is the cause of their harm – a cause of action is required.

What is a cause of action?

A cause of action is the technical legal name for the set of facts which give rise to a claim enforceable in court. It is a legally recognised wrong that creates the right to sue. Each cause of action consists of points the plaintiff must prove and all of these elements must be satisfied in order to take court action.

A cause of action may arise from either a law passed by the parliament (statute) or from the common law. The common law has evolved gradually over time, and is law made by judges when they give their judgment on a case brought before them. This process has led to the development of various causes of action which may be used to bring an action in the courts. Which court will hear your case depends on the type of cause of action.

A lawyer cannot help you in taking your case to court if you do not have a cause of action. The court cannot hear your dispute nor make a decision without a valid cause of action. If you decide to proceed to court without a valid cause of action, the court is likely to dismiss your claim and order you to pay costs.

Why do I need a cause of action?

There are public policy reasons for only allowing certain causes of action. People are always suffering loss or injury, but if everyone was allowed to sue anyone without having a proper cause of action, the courts would be clogged with hearing every case brought before them. This would mean that the people who do have a clear and justifiable case may not get the justice they deserve.

For these reasons, the legal system has evolved and formed sets of conditions to separate cases that do have a likely cause of action from those that do not.

Examples of causes of action

There are many specific causes of action. The following are examples of some common causes of action that may be taken to court.

• If a person unjustifiably enters or remains on your property without your permission, even where no damage is done, you may have an action in trespass to land. This can range from someone squatting on your land, to someone dumping their rubbish on your lawn. If this is a one-off event such as a drunk person sleeping in your front lawn, the police can be called to remove the offender. However, if it is continued, you can seek an order (an injunction) from the court to stop the trespass and ask the court for damages.
• If you have made a legally binding agreement with a person and they fail to do what you both agreed to, you may have an action against them for breach of contract. This could include when you hire a plumber to install new pipes but instead the plumber only changes the washers in the taps.
• If a person is substantially and unreasonably interfering with the use of your land without physically interfering with it, you may have an action in private nuisance. This could include a neighbour flooding your land, a neighbour deliberately watching and recording you, or a neighbour who has regular, loud, late-night parties involving shouting and swearing. However, you must not be particularly susceptible to the interference and the interference must be substantial and unreasonable.
• If a person directly, intentionally, unlawfully restrains you against your will preventing your escape, you may have an action for false imprisonment. This could include somebody locking you in a vehicle or an office and not allowing you to leave, or bullies cornering you in a room. However, false imprisonment does not apply to lawful police detention.
• If a person or organisation causes you or your property harm unintentionally by not exercising proper care and skill, you may have a claim in negligence. The law of negligence is quite complex and broad, and may include an injury you suffer from a driver who is speeding, or a doctor who leaves a medical instrument in your body after an operation they perform on you.
• If as a tenant you are asked to leave your rental property without proper reasons by your landlord, you may have a cause of action to the Queensland Civil and Administrative Tribunal under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). This may include the situation where after you asked the landlord to fix the broken oven they asked you to leave the property with no grounds for this request. The landlord cannot ask you to leave the property to retaliate against you for taking actions to enforce your legal rights.

What can I do if I have a valid cause of action?

Even if you seem to have a cause of action, this does not mean that you will automatically win the case or receive monetary or another form of compensation. There are many other factors which must be considered, but establishing a cause of action is the first step in going to court.

In order to successfully commence a legal action you must also have standing to appear before the court and evidence that the person accused of causing the harm did in fact cause the harm. Please see LawRight’s factsheets on Standing and involvement in legal proceedings and Evidence and Proof in Civil Proceedings for more information on these issues.

You should also ensure that you commence your matter in the appropriate court or tribunal. For further information see the Queensland Courts Website.

Setting a civil trial date

Court etiquette

Evidence and proof in civil proceedings

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

Damages and loss

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

Personal injuries

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.