Interlocutory process 

Not every question in civil litigation waits for trial. An interlocutory application is an application made for orders while the substantive proceeding is still on foot, resolving some issue short of, and usually well before, a final hearing on the merits. Interlocutory process is where much of the practical work of civil litigation actually happens, because most disputes never reach a final trial at all.

Why interlocutory decisions look different from trial decisions

A final trial decides the merits of the dispute after a full hearing of the evidence, usually with each side having had the benefit of complete disclosure and the opportunity to test the other side's witnesses. An interlocutory application, by contrast, is typically decided quickly, often on affidavit evidence alone, without cross-examination, and before either side's case has been fully tested or fully disclosed. Courts recognise that requiring the same level of certainty at the interlocutory stage as at trial would make urgent or preliminary relief impossible to obtain in time to be useful, or would let a party win a case in substance under the guise of an interim order without ever having to prove it properly. Interlocutory tests are accordingly built to operate on incomplete information and are often expressed in terms of thresholds — a serious question to be tried, reasonable prospects, or similar language — rather than final findings of fact.

Interlocutory injunctions

An interlocutory injunction restrains a party from doing something (or, less commonly, compels action) until trial or further order, with the purpose of preserving the status quo so that the dispute can still be meaningfully resolved at trial. Without such relief, a final judgment might arrive too late to be of any real use — for example, if the asset in dispute has already been sold, or the confidential information already disclosed. Australian courts typically approach an application for an interlocutory injunction by asking, first, whether the applicant has shown a sufficiently serious question to be tried (not that they will necessarily win), and second, where the balance of convenience lies — including whether damages would be an adequate remedy if the injunction is refused, and what harm each side would suffer from granting or refusing the order. An applicant is usually required to give an undertaking as to damages, compensating the other side if it later turns out the injunction should not have been granted.

For the equitable-remedy analysis that sits behind that procedural test, see Equitable relief: specific performance, injunctions and declarations.

Summary judgment

Summary judgment allows a court to decide a claim, or a defence, without a full trial, where one side's case (or the opposing side's) has no real prospect of success. It exists to prevent court time and the parties' resources being spent on a full trial where the outcome is not genuinely in doubt. Because it can deprive a party of their day in court, summary judgment is generally only granted where the absence of a real prospect of success is clear — it is not simply an assessment of which side's case currently looks stronger on the papers.

Strike-out applications

A strike-out application attacks a pleading itself — asking the court to remove all or part of a statement of claim or defence because it discloses no reasonable cause of action or defence, is embarrassing or unintelligible, or is otherwise an abuse of process, rather than attacking the underlying merits of a properly pleaded case. Strike-out and summary judgment often overlap in practice but ask different questions: strike-out asks whether the pleading itself is adequate; summary judgment asks whether the case, properly pleaded, has any real prospect of succeeding.

Interlocutory orders and final outcomes

Interlocutory relief is provisional. Granting an interlocutory injunction does not decide who is ultimately right, and refusing one does not mean the applicant's underlying claim is weak — both determinations are made on incomplete evidence, at speed, and are revisited (formally or informally) once the matter is fully tried or otherwise resolved.

Applying this in a problem question

1. Identify what kind of interlocutory relief is being sought and what practical problem it is meant to solve before trial.
2. For an interlocutory injunction, work through the serious-question and balance-of-convenience framework, and consider the undertaking as to damages.
3. For summary judgment, ask whether the opposing case truly has no real prospect of success, not merely whether it looks weaker.
4. For a strike-out application, focus on the adequacy of the pleading itself rather than the ultimate merits.
5. Keep the lower-certainty, provisional nature of interlocutory decisions in mind — do not treat an interlocutory outcome as if it finally resolved the dispute.