Ex parte
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In
The term is also used more loosely to refer to improper unilateral contacts with a
Australia
In Australian law ex parte is used in two senses. The predominant use is to refer to an ex parte hearing, being one which is heard in the absence of one or more parties. Where proceedings are heard ex parte, a high degree of candour is required, including full and fair disclosure of facts adverse to the moving party. A failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made.[3]
The other use means 'on the application of' when used in the case name where prerogative relief is sought, such as a
United States
In the United States, the availability of ex parte orders or decrees from both federal and state courts is sharply limited by the Fifth and Fourteenth Amendments, which provide that a person shall not be deprived of any interest in liberty or property without due process of law. In practice this has been interpreted to require adequate notice of the request for judicial relief and an opportunity to be heard concerning the merits of such relief. A court order issued on the basis of an ex parte proceeding, therefore, will necessarily be temporary and interim in nature, and the person(s) affected by the order must be given an opportunity to contest the appropriateness of the order before it can be made permanent.
There are exceptions to this. The secret
The phrase has also traditionally been used in the captions of petitions for the writ of habeas corpus, which were (and in some jurisdictions, still are) styled as "Ex parte Doe," where Doe was the name of the petitioner who was alleged to be wrongfully held. As the Supreme Court's description of nineteenth century practice in Ex parte Milligan shows, however, such proceedings were not ex parte in any significant sense. The prisoner's ex parte application sought only an order requiring the person holding the prisoner to appear before the court to justify the prisoner's detention; no order requiring the freeing of a prisoner could be given until after the jailer was given the opportunity to contest the prisoner's claims at a hearing on the merits.
State trial courts
State courts vary in their use of ex parte proceedings (for example, in custody cases, replevin cases and other civil matters), though most have it in one form or another. For example, in the States of California and Illinois, ex parte proceedings are available if notice is given before 10 a.m. the previous court day, or even shorter upon showing of emergency need.[11] As most courts in these two states hold law and motion hearings in the early morning, this notice is typically confirmed by facsimile although oral notice may be effective. Some courts in California have procedures to allow opponents to appear telephonically, while other courts do not allow any oral argument and only consider written papers.[12] In California, the party who files an ex parte application must file a declaration showing compliance with these requirements, and no relief may be granted absent such declaration.[13] In addition to the notice requirements, an ex parte application must contain an affirmative actual showing in a declaration based on personal knowledge of "irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte".[14]
United Kingdom
Before the
See also
- Ex parte Endo
- Ex parte Merryman
- Ex parte Milligan
- Ex parte Quirin
- Inter partes
- Temporary injunction
- R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet
- R v Burgess; Ex parte Henry
- R v Commonwealth Court of Conciliation and Arbitration; Ex parte BHP
- R v Department of Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union
- R. v. North and East Devon Health Authority, ex parte Coughlan
References
- ^ Cassell's Latin Dictionary, Marchant, J. R. V., & Charles, Joseph F. (eds.), Revised Edition, 1928, pp. 200-201
- ^ Burgess John A., (1 January 1968). "Demise of Res Judicata in Ex Parte Patent Office Practice". Notre Dame Law Review. 43:2. pp. 214–226.
- ^ Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3 at [15] per Gageler J.
- ^ R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' case) [1956] HCA 10, (1956) 94 CLR 254.
- ^ Re Wakim; Ex parte McNally [1999] HCA 27, (1999) 198 CLR 511
- ^ Secret-court judges upset at portrayal of 'collaboration' with government, The Washington Post, 30 June 2013. Retrieved 30 June 2013.
- ^ Response of the Honorable Reggie B. Walton of the Foreign Intelligence Surveillance Court to Senator Patrick Leahy, July 29, 2013.
- ^ See for example 50 U.S.C. 1805
- ^ "Civil Protection Order Remedies and Procedures — public". Archived from the original on 2 November 2016.
- ^ Stark, Debra; Choplin, Jessica (2017). "Seeing the Wrecking Ball in Motion: Ex Parte Protection Orders and the Realities of Domestic Violence". Wisconsin Journal of Law, Gender & Society. University of Wisconsin Law School. Retrieved 22 November 2018.
- ^ See California Rule of Court 3.1200, et seq
- ^ See California Rule of Court 3.1213, Rule 3.1203. Time of notice to other parties.
- ^ California Rules of Court, Rule 3.1204
- ^ California Rules of Court, Rule 3.1202
External links
- The dictionary definition of ex parte at Wiktionary