STATUTORY RULES.

1928. No. 118.

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HIGH COURT OF AUSTRALIA.

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Rules of Court.

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As of Friday the second day of November a.d., 1928.

Pursuant to the Judiciary Act 1903-1926 and the High Court Procedure Act 1903-1925, and to all other powers thereunto enabling, IT IS ORDERED as follows:—

1. On and after the thirty-first day of December, 1928, all Rules of Court regulating the practice and procedure in the High Court of Australia, except Order XLII.a thereof, shall be repealed, but without prejudice to the validity of any proceedings theretofore taken under the said Rules of Court, and on the said thirty-first day of December, 1928, the Rules of Court hereinafter set out shall come into force and apply thenceforth to all suits, causes, matters, and appeals then pending or commenced on or after that date.

ADRIAN KNOX, C.J.

ISAAC A. ISAACS, J.

HY. B. HIGGINS, J.

CHAS. POWERS, J.

SEAFORTH MACKENZIE, Principal Registrar.

1539/27.—Price, 5s.

RULES OF COURT.

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Part I.—Original Jurisdiction  page

Part II.—Appellate Jurisdiction.

Appeal Rules.

Part I.—Original Jurisdiction.

ORDER I.

Commencement of Civil Proceedings.

Mode of commencement

1. Causes and matters in the High Court may be commenced by writ of summons, motion, originating summons, or order to show cause.

Causes and matters which are by any Act or Rules of Court required or authorized to be commenced by motion, whether on notice or ex parte, or by originating summons, or order to show cause, or in any other specified manner, shall or may, respectively, be so commenced.

When by any Act or Rules of Court any person is authorized to make any application to the Court or a Justice with respect to any matter which is not already the subject-matter of a pending cause or matter, and no other mode of making the application is prescribed by the Act or Rules, the application, if made to the Court, shall be made by motion, and, if made to a Justice, shall be made by originating summons.

Except as aforesaid, and except as otherwise provided by any Act, all causes in the Court shall be commenced by writ of summons.

Causes commenced by writ of summons are called actions.

The document by which a cause or matter is commenced is called an “originating proceeding.”

Titles of proceeding.

2. Every proceeding in the Court shall be entitled “In the High Court of Australia.” If the cause is pending in a District Registry, the word “Registry” shall be added with the name of the State prefixed, and, if there is more than one District Registry in the State, the name of the place at which the Registry is situated shall also be added.

Address of suitor and of his solicitor to be endorsed on originating proceeding.

Address for service.

Name of principal and agent.

3. The solicitor of a party suing by a solicitor shall endorse upon the originating proceeding, and upon every notice in lieu of service of an originating proceeding, the address of the plaintiff, and also his own name or firm and place of business, and also, if his place of business is more than one mile from the Registry in which the cause or matter is commenced, a place to be called his address for service, which shall not be more than one mile from the Registry, where any proceedings in the cause or matter may be left for him. And, if the solicitor is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor.

Party sitting in person to endorse address for service.

4. A party suing in person shall endorse upon the originating proceeding, and upon every notice in lieu of service of an originating proceeding, his place of residence and occupation, and also, if his place of residence is more than one mile from the Registry in which the cause or matter is commenced, another proper place to be called his address for service, which shall not be more than one mile from the Registry, where any proceedings in the cause or matter may be left for him.

Change of solicitor.

5. A party suing or defending by a solicitor may change his solicitor in any cause or matter without an order for that purpose, upon notice of such change being filed in the Registry, but until such notice is filed and a copy thereof served, the former solicitor shall be considered the solicitor of the party.

ORDER II.

Parties to Actions.

1. Generally.

Persons claiming jointly severally, or in the alternative may be plaintiffs.

1. All persons in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may be joined in an action as plaintiffs, provided that the case is such that if such persons brought separate actions some common questions of law or fact would arise.

Provided that the Court or a Justice may, in any case in which separate and distinct questions arise, order that separate pleadings be delivered, or separate trials had, or may make such other order as is just.

When several plaintiffs are joined in an action, judgment may be given for such of them as are entitled to relief for such relief as they are entitled to, without any amendment. But the defendant shall be entitled to his costs occasioned by joining as a plaintiff any person who is not entitled to relief, unless the Court or a Justice in disposing of the costs otherwise directs.

Action in name of wrong plaintiff.

2. When an action has been commenced in the name of the wrong person as plaintiff, or it is doubtful whether an action has been commenced in the name of the right plaintiff, the Court or a Justice may order that any other person be substituted or added as plaintiff upon such terms as are just.

Cross-claim misjoinder.

3. When any person has been improperly or unnecessarily joined as a plaintiff in an action, the defendant shall be entitled to the same relief by way of cross-claim or set-off against the other plaintiffs or any of them, as if that person had not been so joined, notwithstanding such misjoinder or any proceeding consequent thereon.

Persons to be joined as defendants.

4. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such of the defendants as are found to be liable, according to their respective liabilities, without any amendment.

Defendant need not be interested in all the relief claimed.

5. It shall not be necessary that every defendant shall be interested as to all the relief claimed in the action, or as to every cause of action included in the action; but the Court or a Justice may make such order as is just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he has no interest.

Joinder of persons severally or jointly and severally liable.

6. The plaintiff may, at his option, join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

Plaintiff in doubt as to person from whom redress is to be sought.

7. When a plaintiff is in doubt as to the person from whom he is entitled to relief, he may join two or more persons as defendants, to the intent that the questions as to which, if any, of the defendants is liable, and as to what relief the plaintiff is entitled to, may be determined as between all parties.

Numerous persons.

8. When there are numerous persons having the same interest in the subject-matter of a cause or matter, one or more of such persons may sue, and the Court or a Justice may authorize one or more of such persons to be sued, or may direct that one or more of such persons shall defend, in such cause or matter, on behalf or for the benefit of all persons so interested.

Misjoinder and nonjoinder.

9. The Court shall not refuse to determine a cause or matter by reason only of the misjoinder or nonjoinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

Striking out and adding parties.

The Court or a Justice may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as appear to the Court or Justice to be just, order that the names of any persons improperly joined, whether as plaintiffs or as defendants, be struck out, or that the names of any persons who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added, either as plaintiffs or defendants.

Consent of plaintiff or next friend.

But no person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing.

Application to strike out.

10. An application to add or strike out or substitute a plaintiff or defendant may be made to the Court or a Justice, at any time before the hearing of the cause, or may be made at the hearing in a summary manner.

When defendant added.

11. When a defendant is added or substituted, he shall, unless he waives such service, be served with the amended originating proceeding, or with notice in lieu of service, as the case may be, and the proceedings as against him shall, unless otherwise ordered, be deemed to have begun only on such service being effected.

Such service shall, unless otherwise ordered by the Court or a Justice, be effected in the same manner in which original defendants are served.

2. Persons under Disability.

Infants.

12. An infant may sue or carry on the proceedings in any cause or matter by his next friend, and may appear in any cause or matter by his guardian ad litem.

Married women.

13. A married woman may sue or defend in her own name, being described as the wife of her husband, naming him.

Lunatics.

14. A person found or declared to be of unsound mind may sue or defend by the committee of his person or estate, as the case may be.

Persons of unsound mind without committees.

A person who is of unsound mind, but has not been so found or declared, and a person so declared, but of whom a committee of his person or estate, as the case may be, has not been appointed, may sue by his next friend, and may defend or intervene by a guardian appointed by a Justice for that purpose.

Next friend.

15. Before the name of any person is used in any cause or matter as next friend of any infant or other party, such person shall sign a written

authority to the solicitor for that purpose, and the authority shall be filed in the Registry with the originating proceeding. The authority shall not extend to any other proceeding than that specified in it.

A married woman or a corporation cannot be a next friend or a guardian for the purpose of bringing or defending an action.

Removal and appointment of next friend and guardian ad litem.

16. The Court or a Justice may, for sufficient cause shown, remove a next friend or guardian ad litem.

Whenever for any reason there is no next friend or guardian ad litem of an infant, the Court or a Justice may appoint a fit person, with his own consent, to be such next friend or guardian.

Consent of persons under disability to procedure.

17. In any cause or matter to which any infant or person of unsound mind, whether so found or declared or not, or a person under any other disability, is a party, any consent as to the mode of taking evidence or as to any other procedure shall, if given with the sanction of the Court or Justice by the next friend, guardian, committee, or other person acting on behalf of the person under disability, have the same force and effect as if the party were under no disability and had given the consent.

ORDER III.

Proceedings by and against Paupers.

Suing or defending as pauper.

1. Any person may be allowed by the Court or a Justice to sue or defend in any cause or matter as a pauper on proof that he is not worth £25, his wearing apparel and the subject-matter of the cause, or matter if any, only excepted.

Case to be laid before counsel.

2. A person desirous of suing as a pauper shall lay a case before a practitioner of the High Court for his opinion whether or not he has reasonable grounds for proceeding.

Affidavit by party or solicitor that case is true.

3. A person shall not be permitted to sue as a pauper unless the case laid before counsel for his opinion, and his opinion thereon, with an affidavit of the party or his solicitor, stating that the case contains a full and true statement of all material facts to the best of his knowledge and belief, and referring to the case as an exhibit, are produced before the Court or Justice to whom the application is made.

No Court fee payable.

4. A person admitted to sue or defend as a pauper shall not be liable to any Court fees.

Counsel and solicitor may be assigned.

5. When a person is admitted to sue or defend as a pauper, the Court or a Justice may, if necessary, assign a barrister or solicitor, or both, to assist him; and a barrister or solicitor so assigned shall not be at liberty to refuse his assistance unless he satisfies the Court or a Justice that he has some good reason for refusing.

Default in proceeding by pauper.

6. When a person who has been admitted to sue as a pauper neglects to proceed with the cause or matter he may be ordered to pay costs, although he has not been dispaupered; and all further proceedings in the cause or matter may be stayed until payment of any costs so ordered to be paid by him.

Notices, &c., on behalf of pauper, how to be signed.

7. A notice of motion shall not be served or summons issued, nor shall a petition be presented, on behalf of any person admitted to sue or defend as a pauper, except for the discharge of his solicitor unless it is signed by his solicitor.

Duty of solicitor.

8. It shall be the duty of a solicitor assigned to a person admitted to sue or defend as a pauper to take care that no notice is served, or summons issued, or petition presented, without good cause.

Pauper not to recover costs.

9. A person admitted to sue or defend as a pauper shall not be entitled to recover costs from any other party without the order of the Court or a Justice.

Taxation of costs.

10. Costs ordered to be paid to a person admitted to sue or defend as a pauper shall, unless the Court or a Justice otherwise directs, be taxed as in other cases.

ORDER IV.

Partial Relief.

Declaratory judgments and orders.

1. An action shall not be open to objection on the ground that a merely declaratory judgment or order is sought thereby; and the Court may make binding declarations of right in an action properly brought, whether any consequential relief is or could be claimed therein or not.

ORDER V.

Writs of Summons.

Action to be commenced by writ.

1. Every action shall be commenced by a writ of summons, which shall have endorsed thereon a concise statement of the nature of the claim made, or of the relief or remedy sought in the action.

Amendment allowed.

2. The endorsement required by the last preceding rule shall not be invalid by reason of failure to set forth the precise ground of complaint, or the precise remedy or relief to which the plaintiff considers himself entitled.

The plaintiff may, by leave of the Court or a Justice, amend the endorsement so as to extend it to any other cause of action or any additional remedy or relief.

Endorsement to show representative capacity.

3. If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the endorsement shall show in what capacity the plaintiff or defendant sues or is sued.

Special endorsement of liquidated claims.

4. In any action in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, the writ of summons may be specially endorsed with particulars of the nature of his claim, and of the amount, if any, sought, to be recovered.

Further endorsement in case of liquidated claim.

5. When the plaintiff’s claim is for a debt or liquidated demand only with or without interest, the endorsement, besides stating the nature of the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs, respectively, and shall further state that upon payment thereof within the time allowed for appearance, further proceedings will be stayed. The defendant may, notwithstanding such payment, have the costs taxed, and if more than one-sixth be disallowed the plaintiff’s solicitor shall pay the costs of taxation.

The plaintiff may claim for costs under this Rule the following amounts, exclusive of mileage:—For costs on issuing the summons, the

sum of £4 14s. 6d., and a further sum of £4 14s. 6d. for costs of judgment in default of appearance; and when judgment is so obtained such costs shall not be subject to taxation.

Ordinary account.

6. In an action in which the plaintiff desires to have an account taken in the first instance, the writ of summons shall be specially endorsed with a claim that such account be taken.

Kinds of actions.

7. Actions shall be of two kinds, actions in personam and actions in rem.

Crown action

8. Actions for condemnation of any property, or for recovery of any pecuniary forfeiture or penalty, shall be instituted in the name of the King.

Title of actions.

9. The title of actions shall be as set forth in the Appendix.

Form of writ.

10. A writ of summons for the commencement of an action shall be in such one of the forms in the Appendix as is applicable, with such variations as circumstances require.

Writ issued from District Registry.

11. When a writ is issued from a District Registry, and any defendant neither resides nor carries on business in the State in which the Registry is situated, there shall be a statement upon the face of the writ that such defendant may, at his option, cause an appearance to be entered either at the District Registry or at the Principal Registry, or to the like effect.

Writ for service out of the jurisdiction.

12. A writ of summons to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction, may be issued without leave.

Form for writ and notice for service out of the jurisdiction.

13. Notice of a writ to be given out of the jurisdiction shall be in the form in the Appendix with such variations as circumstances require.

Time for appearance to be limited by writ.

14. The time to be limited in the writ of summons for the appearance of any defendant shall be the time next hereinafter specified, according to the place of service, that is to say:—

For the purposes of this Rule the State of Tasmania is to be deemed to be adjacent to the States of New South Wales, South Australia, and Victoria, and the State of Queensland is not to be deemed adjacent to the State of South Australia.

Distances are to be reckoned according to the nearest route ordinarily used in travelling.

Copy to be left.

15. The plaintiff, or his solicitor, shall, on presenting any writ of summons for issue, leave with the officer a copy of the writ, and of all the endorsements thereon, and the copy shall be signed by or for the solicitor leaving it, or by the plaintiff himself if he sues in person. No præcipe shall be required.

ORDER VI.

Concurrent Writs.

Concurrent writ, how issued.

1. The plaintiff in any action may, at the time of, or at any time during twelve months after, the issuing of the original writ of summons, issue one or more concurrent writs. Each concurrent writ shall be dated as of the same day as the original writ, and shall be marked with a seal bearing the word “Concurrent,” and the date of issuing the concurrent writ; and such seal shall be impressed upon the writ by the proper officer. Provided always that any such concurrent writs shall only be in force for the period during which the original writ in the action is in force.

Concurrent writs for service, within and without the jurisdiction.

2. A writ of summons to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction, may be issued and marked as a concurrent writ with a writ to be served within the jurisdiction; and a writ of summons to be served within the jurisdiction may be issued and marked as a concurrent writ with a writ to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction.

ORDER VII.

Renewal of Writs: Lost Writs.

Original writ in force for twelve months, but may be renewed.

1. Original writs of summons shall be in force for twelve months from the date thereof, including the day of that date, and no longer; but if any defendant therein named has not been served within that time, the plaintiff may, before the expiration of the twelve months, apply to the Court or a Justice for leave to renew the writ; and the Court or Justice, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of renewal, including the day of that date, and so from time to time during the currency of the renewed writ.

The writ shall be renewed by being marked with the word “Renewed,” and with a seal bearing the date of the day, month and year of the renewal; which seal shall be provided and kept for that purpose at the Registry, and shall be impressed upon the writ by the proper officer, upon delivery to him by the plaintiff or his solicitor of a præcipe to that effect.

A writ of summons so renewed shall remain in force and be available to prevent the operation of any Act whereby the time for the commencement of the action is limited, and for all other purposes, from the date of the issuing of the original writ.

Evidence of renewal.

2. The production of a writ of summons purporting to be marked with the seal of the Court, showing it have been renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, and of the commencement of the action as of the date of the original writ, for all purposes.

Lost writ.

3. When a writ of which the production is necessary has been lost, the Court or a Justice, upon production of a copy thereof, and upon being satisfied of the loss, and of the correctness of the copy, may order that the copy shall be sealed and served, or otherwise made use of, in lieu of the original writ.

ORDER VIII.

Service of Originating Proceedings.

1. Generally.

Personal service.

1. Unless otherwise prescribed or allowed, service of an originating proceeding shall be made personally. But personal service shall not be required when the party to be served, by his solicitor, undertakes in writing to accept service, and enters an appearance.

Personal service, how effected.

2. Personal service shall be effected, in the case of a writ of summons, originating summons, or other document authenticated by signature or seal, by delivering to and leaving with, or offering to deliver to and leave with, the person to be served, a copy of the writ, summons, or other document, in such a condition as to be open for examination, and at the same time showing him the original writ, summons, or other document, if he requires it; and, in the case of any other document, by delivering or offering to deliver it to the person to be served in such a condition as to be open for examination.

2. On Particular Defendants.

Husband and wife.

3. When a husband and his wife are both parties to a cause or matter, they shall both be served unless the Court or a Justice otherwise orders.

Infants.

4. When an infant is a party to a cause or matter, service on his father or guardian, or, if he has none, then upon the person with whom the infant resides or under whose care he is, shall, unless the Court or a Justice otherwise orders, be deemed good service on the infant; but the Court or Justice may order that service made or to be made on the infant himself shall be deemed good service.

Lunatics.

5. When a person of unsound mind is a party to a cause or matter, service on the committee, if any, of his person or estate, as the case may be, or, if he has not been found or declared to be of unsound mind, or if he has been so declared but a committee of his person or estate, as the case may be, has not been appointed, service on the person with whom he resides or under whose care he is shall, unless the Court or a Justice otherwise orders, be deemed good service on such party.

3. On Corporations and other Bodies.

Service on corporations, &c.

6. In the absence of any statutory provision regulating service of process, an originating proceeding to be served on a corporation aggregate, whether incorporated under the laws of the Commonwealth or of

a State or not, may be served on the mayor or other head officer, or on the town clerk, manager, or other chief officer, of the corporation within the Commonwealth; and when by any Act provision is made for service of any legal process upon any corporation, or upon any society or fellowship, or any body or number of persons, whether corporate or unincorporate, an originating proceeding may be served in the manner so provided.

4. Endorsement of Date of Service.

Endorsement to be made on writ within three days.

7. The person serving a writ of summons shall, within three days after the service, endorse on the writ the day of the month and week of the service thereof; otherwise the plaintiff shall not, without leave of the Court or a Justice, be at liberty, in case of default of appearance, to proceed as upon default; and every affidavit of service of the writ shall mention the day on which such endorsement was made.

5. Substituted Service.

Substituted service may be allowed.

8. If it is made to appear to the Court or a Justice that a party is from any cause unable to effect prompt personal service, or service in any other prescribed manner, of the originating proceeding, or any other proceeding requiring service, the Court or Justice may make such order for substituted service, or for the substitution for service of notice, by advertisement or otherwise, as is just.

Evidence.

9. Every application to the Court or a Justice for an order for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon which the application is made.

ORDER IX.

Service out of the Jurisdiction.

In certain cases service of writ, &c., allowed out of jurisdiction.

1. An originating proceeding, or notice thereof, may be served out of the jurisdiction of the Court in any of the following cases, that is to say:—

(1) When the subject matter of the cause, so far as it concerns he party to be served, is—

(a) Land or other property situate within the Commonwealth, with or without rents or profits thereof; or

(b) Any shares or stock of a corporation or joint stock company having its principal place of business within the Commonwealth; or

(c) Any instrument or thing affecting any such land, property, shares, or stock;

(2) When any contract in respect of which relief is sought in the cause against the party by way of enforcing, rescinding, dissolving, annulling, or otherwise affecting the contract, or by way of recovering damages or obtaining any other remedy against the party for a breach thereof, was made or entered into within the Commonwealth;

(3) When the relief sought against the party is in respect of a breach within the Commonwealth of a contract, wherever made; or

(4) When any act or thing sought to be restrained or recovered or for which damages are sought to be recovered, was done or is to be done or is situate within the Commonwealth.

In the case of an action, the endorsement of claim on the writ of summons shall be in such a form as to show that the subject-matter of the action is within the provisions of this Rule.

As to British subjects residing beyond the Commonwealth.

2. If the party to be served is a British subject, the Court or a Justice, upon being satisfied by affidavit that the subject-matter of the cause is such that, under the provisions of the last preceding Rule, the originating proceeding may be served out of the jurisdiction, and that it was personally served upon a party out of the jurisdiction, or that reasonable efforts were made to effect personal service thereof upon the party and that it came to his knowledge, and either that he wilfully neglects to appear in the cause, or that he is living out of the jurisdiction of the Court in order to defeat and delay the plaintiff, may direct from time to time that the plaintiff or petitioner shall be at liberty to proceed in the cause in such manner and subject to such conditions as the Court or Justice thinks fit.

As to foreigners residing out of the jurisdiction.

3. When the originating proceeding is an instrument under the seal of the Court and the defendant is neither a British subject nor in British dominions, notice of the instrument, and not the instrument itself, is to be served upon him. Such service shall have the same force and effect as service of a writ of summons or other originating proceeding upon a British subject; and by leave of the Court or a Justice, upon their or his being satisfied by affidavit as aforesaid, the like proceedings may be had and taken thereupon.

ORDER X.

Appearance.

1 General.

Appearance to writ of summons.

1. A defendant shall enter his appearance to a writ of summons in the District Registry from which the writ was issued, or, at his option, in cases in which he is permitted by the High Court Procedure Act 1903-1925 to enter it at the Principal Registry, at the Principal Registry; according to the exigency of the writ.

Mode of entering appearance.

2. A party entering an appearance shall do so by delivering to the proper officer a memorandum in writing dated on the day of its delivery, and containing the name of his solicitor, or stating that he appears in person.

There shall at the same time be delivered to the officer a duplicate of the memorandum, which the officer shall seal with the official seal, showing the date on which it is sealed, and shall then return to the person entering the appearance. The duplicate memorandum so sealed shall operate as a certificate that the appearance was entered on the day indicated by the seal.

Defendant’s address for service.

3. The solicitor of a defendant appearing by a solicitor shall state in such memorandum his name or firm and place of business, and also, if his place of business is distant more than one mile from the Registry

at which the appearance is entered, a place to be called his address for service, which shall not be more than one mile from that Registry, where any proceedings in the action may be left for him. And, if the solicitor is only agent for another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor.

Defendant appearing in person.

4. A defendant appearing in person shall state in such memorandum his address, and also a place, to be called his address for service, which shall not be more than one mile from the Registry at which the appearance is entered.

Irregular memorandum.

Fictitious address.

5. If the memorandum does not contain such address it shall not be received; and, if the address is illusory or fictitious, the appearance may be set aside by the Court or a Justice on the application of the plaintiff.

Memorandum of appearance.

6. The memorandum of appearance shall be in the form in the Appendix with such variations as circumstances require.

Defendants appearing by same solicitor.

7. If two or more defendants in the same cause appear by the same solicitor and at the same time, the names of all the defendants so appearing shall be inserted in one memorandum.

Notice of appearance.

8. A defendant shall, on the day on which he enters his appearance, give notice of his appearance, in the form in the Appendix, to the; plaintiff’s solicitor, or, if the plaintiff sues in person, to the plaintiff himself. The notice may be given either by notice in writing served in the ordinary way at the address for service, or by prepaid letter directed to that address and posted on the day of entering appearance, and shall in either case be accompanied by the sealed duplicate memorandum.

Appearance at Principal Registry to be notified by telegraph to District Registry in certain cases.

9. If a defendant, being entitled to enter his appearance either at a District Registry or at the Principal Registry, elects to enter it at the Principal Registry, the Principal Registrar shall on the same day at the cost of the defendant, notify to the District Registrar by telegraph that the appearance has been entered.

Solicitor not entering appearance.

10. A solicitor who fails to enter an appearance in pursuance of his written undertaking so to do shall be liable to attachment.

Time for appearance.

11. A defendant may appear at any time before judgment. If he appears after the time limited for appearance, he shall not, unless the Court or a Justice otherwise orders, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the exigency of the writ.

Admiralty intervention.

12. In an action in rem, any person not named in the writ may intervene and appear on filing an affidavit showing that he is interested in the res under arrest, or in the fund in Court.

Conditional appearance.

13. A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court, and shall not thereby be deemed to have submitted to the jurisdiction, except as to the costs occasioned by the appearance or by any application under this Rule; and he may thereupon apply to the Court or Justice for an order to set aside the service upon him of the originating proceeding, or the service upon him of notice thereof, as the case may be.

Or he may make such application before appearing, and without entering a conditional appearance.

If he enters a conditional appearance, and does not make such application promptly, the Court or Justice may set aside the conditional appearance with costs, to be paid by the defendant by whom it was entered.

If the application is made and dismissed, the conditional appearance shall be struck out, and the defendant may enter an appearance as in other cases.

2. Persons under Disability.

Appearance by Infant.

14. An order for the appointment of a guardian ad litem of an infant in an action shall not be necessary but the solicitor applying to enter an appearance for the infant shall make and file an affidavit in the form in the Appendix, with such variations as circumstances require.

Guardian ad litem in matters other than actions.

15. An infant served with an originating proceeding in any cause or matter, not being an action, may appear on the hearing of the cause or matter by a guardian ad litem in all cases in which the appointment of a special guardian is not provided for. An order for the appointment of such guardian shall not be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last preceding Rule mentioned.

Other cases.

16. When proceedings in any cause or matter are directed to be continued against an infant, or an infant is at liberty to attend any proceedings in a cause or matter, he shall appear as in the last preceding Rule directed.

ORDER XI.

Default of Appearance.

Default of appearance by infant or person of unsound mind.

1. When no appearance is entered to a writ of summons for a defendant who is an infant or a person of unsound mind who has not been so found or declared, the plaintiff shall, before proceeding with the action against the defendant, apply to the Court or a Justice for an order that some proper person be appointed as guardian of the defendant, by whom he may appear and defend the action.

Notice of application.

Such an order shall not be made unless it appears that the writ of summons was duly served, and that notice of the application was, after the expiration of the time allowed for appearance, and at least six clear days before the day in such notice named for hearing the application, served upon or left at the dwelling-house of the person with whom or under whose care the defendant is then residing, and also, if the defendant is an infant not residing with or under the care of his father or guardian, served upon or left at the dwelling-house of the father or guardian, if any, of the infant, unless the Court or Justice at the time of hearing the application dispenses with the last-mentioned service.

When a guardian has been appointed, he shall have the same time for appearance after the service of the order on him as if it were a writ of summons.

Default of appearance generally.

2. When a defendant fails to appear to a writ of summons, and the plaintiff is desirous of proceeding upon default of appearance under

any of the following Rules of this Order, he shall, before taking such proceeding upon default, file an affidavit of service of the writ, or of notice in lieu of service, as the case may be.

Liquidated demand endorsed.

3. When the writ of summons is endorsed for a debt or liquidated demand only, and the defendant fails, or all the defendants, if more than one, fail, to appear thereto, the plaintiff may enter final judgment against such defendant or defendants for any sum not exceeding the sum endorsed on the writ, together with interest at the rate claimed by the endorcement at the rate agreed upon, if any, or, if no rate is claimed to have been agreed upon, at the rate of five per centum per annum, to the date of the judgment, and costs.

Liquidated demand: Several defendants.

4. When the writ is endorsed for a debt or liquidated demand, and there are several defendants, of whom some appear to the writ, and others fail to appear, the plaintiff may enter final judgment as by the last preceding Rule provided against the defendants so failing to appear.

Detention of goods Damages.

5. When the writ is endorsed with a claim for detention of goods and pecuniary damages, or either, and the defendant fails, or all the defendants, if more than one, fail to appear, the plaintiff may enter interlocutory judgment against such defendant or defendants, and a writ of inquiry may issue to assess the value of the goods and the damages, or either, as the case may be, in respect of the causes of action disclosed by the endorsement on the writ. But the Court or a Justice, instead of issuing a writ of inquiry, may order that the value and the damages, or either, shall be ascertained in any other way which the Court or Justice directs.

Several defendants.

6. When the writ is endorsed as in the last preceding Rule mentioned, and there are several defendants, of whom some appear to the writ, and others fail to appear, the plaintiff may enter interlocutory judgment against the defendants so failing to appear. And in that case the value of the goods and the damages, or either, as the case may be may be assessed, as against the defendants suffering judgment by default, at the same time as the trial of the action or issue therein against the other defendants. But the Court or a Justice may order that instead of proceeding to such trial, the value and the damages, or either, shall be ascertained by a writ of inquiry as directed by the last preceding Rule, or in any other way which the Court or Justice directs.

Liquidated demand and detention of goods, and damages.

7. When the writ is endorsed with a claim for detention of goods and pecuniary damages, or either, and is further endorsed for a debt or liquidated demand, and any defendant fails to appear to the writ, the plaintiff may enter final judgment against him for the debt or liquidated demand, with interest and costs, and may also enter interlocutory judgment for the value of the goods and the damages, or either, as the case may be, and may proceed as provided in Rules 5 and 6 of this Order.

Setting aside judgment by default.

8. Any judgment by default under this Order may be set aside or varied by the Court or a Justice upon such terms as to costs or otherwise as the Court or Justice thinks fit.

Default of appearance in actions not otherwise specially provided for.

9. In all actions not by this Order otherwise specially provided for in case any defendant does not appear within the time limited by the

writ for appearance, the plaintiff may, upon filing a proper affidavit of service and a statement of claim, proceed in the action as if the defendant had appeared.

Effect of judgment by default.

10. In any case in which a plaintiff enters judgment under the provisions of this Order against any defendants who fail to appear, the entry of judgment shall not, nor shall the issue of execution thereon, prejudice his right to proceed in the action against the other defendants.

ORDER XII.

Change of Parties.

Action not abated where cause of actions continues.

1. A cause or matter shall not become abated by reason of the marriage, death, or insolvency of any of the parties, if the cause of action survives or continues, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite.

In case of marriage, &c., or devolution of estate, Court may order successor to be made a party or served with notice.

2. In case of the marriage, death, or insolvency, or devolution of estate by operation of law, of any party to a cause or matter, the Court or a Justice may, if it is necessary for the complete settlement of all the questions involved, order that the husband, personal representative, trustee, or other successor in interest, if any, of the party shall be made a party, or shall be served with notice in such manner and form as hereinafter prescribed, on such terms as are just, and may make such order for the disposal of the cause or matter as is just.

In case of assignment, creation, or devolution of estate or title, action may be continued.

3. In case of an assignment, creation, or devolution of any estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom the estate or title has come or devolved.

Order to carry out proceedings.

4. When by reason of marriage, death, or insolvency, or any other event occurring after the commencement of a cause or matter, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties and the new party may be obtained ex parte, either by any continuing party, or by any person who is made a party, on application to the Court or a Justice, upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence.

If the party applying to be made a party as plaintiff is an infant, the application must be made by him by his next friend.

Service of order to continue action.

5. Every order made under the last preceding Rule shall, unless the Court or Justice otherwise directs, be served upon the continuing parties, and also upon each, such new party, unless the person making the application is himself the only new party, and the order shall from the time of such service, subject nevertheless to the next two following Rules, be binding on the person served therewith; and every person served therewith who is not already a party to the cause or matter shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons. Notice of such obligation to appear shall be endorsed on the order before service.

Application to discharge order by person under no disability or having a guardian.

6. When any person who is under no disability, or who is under no disability other than coverture, or who, being under some disability other than coverture, has a guardian ad litem in the cause or matter, is served with an order made under Rule 4 of this Order, he may apply to the Court or a Justice to discharge or vary the order at any time within eight days after the time allowed for appearance.

By person under disability, having no guardian.

7. When any person who is under any disability other than coverture, and has no guardian ad litem in the cause or matter, is served with an order made under Rule 4 of this Order, he may apply to the Court or a Justice to discharge or vary the order at any time within eight days after the time allowed for the appearance of his guardian ad litem when duly appointed; and until the period of eight days has expired the order shall have no force or effect as against the last-mentioned person.

Death of sole plaintiff or defendant.

8. When the plaintiff or defendant in a cause dies, and the cause of action survives, but the plaintiff or the person entitled to proceed fails to proceed, the defendant, or the person against whom the cause may be continued, may apply to a Justice for an order requiring the plaintiff or the person entitled to proceed to do so within such time as is ordered: And in default the Justice may order the cause to be dismissed for want of prosecution, with or without costs, as in other cases.

ORDER XIII.

Leave to Sign Summary Judgment.

Application for summary judgment.

1. (1) When a defendant appears to a writ of summons specially endorsed under Order V., Rule 4, the plaintiff may, on affidavit made by himself or any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the action, apply to a Justice for liberty to enter final judgment for the amount so endorsed, or any part thereof, together with interest, if any, and costs. The Justice may thereupon, unless the defendant, by affidavit or viva voce evidence, or otherwise satisfies him that he has a good defence to the action on the merits, or discloses such facts as entitle him to defend, make an order giving the plaintiff leave to enter judgment accordingly.

(2) If on the hearing of an application under this Rule it appears that the plaintiff is not entitled to judgment for the full amount claimed or for all the relief claimed, the Justice may give the plaintiff leave to enter judgment for any sum which it appears that he is entitled to recover, or for any other relief to which it appears that he is entitled.

(3) When the sum for which leave is given to enter judgment in respect of a claim specially endorsed is not the whole amount for which leave to enter judgment is asked in respect of that cause of action, the Justice may either strike out the residue of the claim in respect of that cause of action or may allow the action to proceed in respect of such residue.

(4) Any defect in the special endorsement may be amended forth with upon such terms as a Justice may think just.

(5) When an application has been dismissed on the ground of formal defects in the proceedings or in the evidence, a fresh application may be made on amended proceedings.

Application by summons.

2. An application by a plaintiff for leave to enter final judgment under the last preceding Rule shall be made by summons, returnable not less than four clear days after service. Copies of the affidavits intended to be used upon the application, and of all exhibits therein referred to, shall be served with the summons, and no further evidence shall be given on behalf of the plaintiff except by leave of the Justice.

Defendant may show cause.

3. The defendant may show cause against such application by affidavit, or by leave of the Justice by oral evidence, or by offering to bring into Court the sum claimed.

If he shows cause by affidavit, the affidavit shall state whether the defence alleged goes to the whole or to part only, and, if so, what part of the plaintiff’s claim.

The Justice may, if he thinks fit, order the defendant, or, in the case of a corporation, any officer thereof to attend and be examined upon oath, or to produce any leases, deeds, books, or documents, or copies of or extracts therefrom.

Judgment for part of claim.

4. If it appears that the defence set up by the defendant applies only to a part of the plaintiff’s claim, or that any part of his claim is admitted, the plaintiff shall have judgment forthwith for that part of his claim to which the defence does not apply, or which is admitted, subject to such terms, if any, as to suspending execution, or the payment of the amount levied, or any part thereof, into Court by the Marshal, the taxation of costs or otherwise, as the Justice may think fit; and the defendant may be allowed to defend as to the residue of the plaintiff’s claim.

Where one defendant has good defence but other not.

5. If it appears to the Justice that any defendant has a good defence to the action, or ought to be permitted to defend, and that any other defendant has not such defence, and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment against the latter, and may issue execution upon such judgment without prejudice to his right to proceed with the action against the former.

Leave to defend.

6. Leave to defend may be given unconditionally or subject to such terms as to giving security, or as to the time or mode of trial, or otherwise as the Justice may think fit.

Summary disposal.

7. On the hearing of an application, the Justice may, with the consent of all parties; dispose of the action in a summary manner.

Directions as to trial.

8. When leave, whether conditional or unconditional, is given to defend, the Justice shall have power to give such directions as to the further conduct of the action as might be given on a summons for directions under Order XV., and may order the action to be forthwith set down for trial.

Costs.

9. When no order is made as to the costs of the application, or when the costs are referred to the Justice at the trial, and no trial afterwards takes place, or no order as to costs is made at the trial, the costs of the application shall be costs in the action.

ORDER XIV.

Summary Judgment.—Actions for Account.

Order for account.

1. When a writ of summons has been endorsed with a claim for an account under Order V., Rule 6, or when the claim endorsed on a writ of summons involves taking an account, the plaintiff may at any time after appearance, or after the time for entering an appearance has expired, apply to a Justice for an order to take the account.

Application how made.

2. An application for an order under the last preceding Rule shall be made by summons, and shall, when necessary, be supported by affidavits, stating concisely the grounds of the plaintiff’s claim to an account. If any defendant has made default in appearance, the application may, as against him, be made ex parte.

Evidence in answer.

3. If the defendant does not, by affidavit or otherwise, satisfy the Justice that there is some preliminary question to be tried, an order for the proper accounts, and for all necessary inquiries, with such directions as are usual in similar cases, shall be made forthwith.

ORDER XV.

Summons for Directions.

Summons for directions.

1. Any party to an action may, at any time after the appearance of any defendant who is affected thereby, take out a general summons for directions.

The summons shall specify the matters as to which directions are desired, and shall be addressed to and served upon all such parties to the action as may be affected thereby.

Interlocutory proceedings.

2. Upon the hearing of the summons, the Court or Justice shall, so far as practicable, make such order as is just with respect to all the interlocutory proceedings to be taken in the action before the trial and as to the costs of such proceedings, and more particularly with respect to the following matters:—Pleading, particulars, admissions, discovery, interrogatories, inspection of documents, inspection of real or personal property, examination of witnesses, place and mode of trial.

Adjournment.

3. The further hearing of the summons shall be adjourned from time to time until the conclusion of the action.

No affidavit necessary.

4. No affidavit shall be made or used on the hearing of the summons except by special order of the Court or Justice.

Parties to apply for directions.

5. On the hearing of the summons, any party to whom the summons is addressed shall, so far as practicable, apply for any order or directions as to any interlocutory matter or proceeding in the action which he desires.

Subsequent applications.

6. When such a summons has been taken out, any application subsequent to the first hearing of the summons for any directions as to any interlocutory matter or proceeding by any party shall be made under the summons, which shall be set down for further hearing on two clear days’ notice to the other party, stating the nature of the order or directions intended to be asked for.

Costs of subsequent applications.

7. Any application by any party which might have been made at the first hearing of the summons shall, if granted on any subsequent application, be granted at the costs of the party applying, unless the Court or Justice is of opinion that the application could not properly have been made at the first hearing of the summons.

Effect of Order.

8. The operation of these Rules with respect to the proceedings to be taken by the parties as to any of the matters particularly specified in Rule 2 of this Order shall be subject to any directions given upon the Summons for directions.

ORDER XVI.

Trial without Pleadings.

Endorsement.

1. When the endorsement of the writ of summons in an action contains a statement sufficient to give notice of the nature of the plaintiff’s claim or of the relief or remedy sought in the action, the plaintiff may also endorse on the writ a notice stating that if the defendant appears the plaintiff intends to proceed to trial without pleadings.

Notice of trial.

2. When the writ is so endorsed, no pleadings shall be required or delivered, except by order of the Court or a Justice; and the plaintiff may, at the expiration of ten days after appearance, serve notice of trial without pleadings.

Defendant may apply for statement of claim.

3. When the writ is so endorsed, the defendant may, within ten days after appearance, apply to a Justice for an order for the delivery of a statement of claim, and on such application the Justice may order that a statement of claim shall be delivered, in which case the action shall proceed as if no such endorsement had been made; or may order that the action shall proceed to trial without pleadings. In the latter case the Justice may, if he thinks fit, further order that either party shall deliver particulars of his claim or defence within a time to be specified in the order.

Particulars.

4. If the Justice orders that the action shall proceed to trial without pleadings, and makes no order as to particulars, all defences shall be open at the trial to the defendant.

When particulars are ordered to be delivered, the parties shall be bound by the particulars so far as regards the matters in respect of which the order for particulars is made.

Special defences.

5. When the writ is so endorsed, and the defendant does not make application under Rule 3 of this Order, he shall not be allowed to rely on a set-off or cross-claim, or on the defence of infancy, coverture, fraud, a Statute of Limitations or discharge under the laws relating to bankruptcy or insolvency, unless within ten days after appearance he gives notice to the plaintiff, stating the defence upon which he so relies, and, in the case of a set-off or cross-claim, or of the defence of fraud, giving particulars thereof; but all other defences shall be open at the trial to the defendant.

If the plaintiff sets up in reply to a set-off or cross-claim any such defence as hereinbefore enumerated, he shall give like notice thereof to the defendant before giving notice of trial.

ORDER XVII.

Pleading Generally.

Pleading to state material facts and not evidence.

1. Every pleading shall contain a statement, as brief as the nature of the case allows, setting out the material facts on which the party pleading relies to support his claim or defence, as the case may be, but not the evidence by which they are to be proved; and shall, when necessary, be divided into paragraphs, numbered consecutively, and each containing, as nearly as may be, a separate allegation. Dates, sums, and numbers may be expressed in figures or in words. Every pleading shall be signed by the solicitor of the party, or by the party himself if he sues or defends in person.

Cost of prolix pleadings.

The Court or a Justice in adjudging the costs of the action shall at the instance of any party, and may without any request, inquire into any unnecessary prolixity, and may order the costs occasioned by the prolixity to be borne by the party responsible for it.

Delivery of pleadings.

2. Except in cases in which no pleadings are required the plaintiff shall, at the time and in the manner prescribed by Order XIX., deliver to the defendant a statement of his claim, and of the relief or remedy to which he claims to be entitled. The defendant shall, at the time and in the manner prescribed by Order XX., deliver to the plaintiff his defence, if any; and the plaintiff shall, at the time and in the manner prescribed by Order XXII., deliver his reply, if any, to the defence.

Set-off and cross-action.

3. A defendant may plead by way of set-off, or set up by way of cross-action, against the claim of the plaintiff or any of the plaintiffs, if more than one, any right or claim arising out of the plaintiff’s claim or connected with it, whether the set-off or cross-claim sound in damages or not; and the set-off or cross-claim shall have the same effect as a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original claim and on the cross-claim. But the Court or a Justice may strike out a defence by way of set-off or cross-claim, if in the opinion of the Court or Justice the set-off or cross-claim cannot be conveniently disposed of in the pending action or ought not to be allowed, or may order that it shall be disposed of separately.

Relief founded on separate facts.

4. When the plaintiff seeks relief in respect of several distinct claim or causes of complaint founded upon separate and distinct ground they shall be stated, as far as may be, separately and distinctly. And the same rule shall apply where a defendant relies upon several distinct grounds of defence or cross-claim founded upon separate and distinct facts.

Particulars to be given in certain cases.

5. If the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars are necessary, particulars, with dates and items if necessary, shall be stated in the pleading: Provided that, if the particulars are of debt, expenses, or damages, and exceed three folios, the fact shall be so stated, with a reference to full particulars already delivered or to be delivered with the pleading.

Printing pleadings.

6. Pleadings may be either printed or written, or partly printed and partly written.

Delivery by filing.

7. Every pleading or other document required to be delivered to a party, or between parties, shall be delivered at the address for service to the solicitor of every party who sues or appears by a solicitor, or to the party if he does not sue or appear by a solicitor; but if no appearance has been entered for any party, then the pleading or document shall be delivered by being filed in the Registry.

Marking pleadings

8. Every pleading shall be marked on the face with the number of the action, the title of the action, the date of the day on which the pleading is delivered and the description of the pleading, and shall be endorsed with the name and address for service of the solicitor and agent, if any, delivering it, or the name and address for service of the party delivering it if he does not sue or appear by a solicitor.

Plea of “Not guilty by statute” not to be used.

9. The defence of “Not guilty by statute” shall not be used.

Specific denial.

10. Every allegation of fact in any pleading, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant or a person of unsound mind.

Conditions precedent to be specified by party denying performance.

11. An averment of the performance or occurrence of all conditions precedent necessary for the case of either party shall be implied in his pleading: And when the performance or occurrence of any condition precedent is denied, the condition must, unless it appears already by implication, be distinctly specified in his pleading by the party denying it.

Several defences or answers.

12. Any party may, without leave, plead any number of separate defences or other replies or answers to the previous pleading of the opposite party.

Pleadings to raise all grounds of defence or reply.

13. Each party must raise by his pleading all matters of fact which show that the claim of the opposite party is not maintainable, or that a transaction is void or voidable in point of law; and all grounds of defence or reply, as the case may be, must be pleaded which, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, release, payment, performance, facts showing illegality or invalidity of a contract either by statute or common law, or a Statute of Limitations.

Departure.

14. A pleading shall not raise any new ground of claim, or contain any allegation of fact, inconsistent with the previous pleadings of the party pleading it.

General denial.

15. It is sufficient for a defendant in his statement of defence to deny generally any allegations in the statement of claim.

Confession and avoidance.

16. When a party admits any allegation in the pleading of the opposite party, and sets up other matter in answer thereto, he must, unless he amends his pleading, plead the other matter specifically in a further pleading.

Joinder of issue.

17. Either party may, in any pleading subsequent to defence, join issue upon the last preceding pleading of the opposite party. Such joinder of issue shall operate as a denial of every material allegation

of fact in the pleading upon which issue is joined, but it may except any facts which the party is willing to admit, and shall then operate as a denial of the facts not so admitted.

Effect of general denial.

18. Subject to the next following Rule and to Order XX., a general denial of an allegation of fact in a previous pleading shall be construed as a denial of the allegation, and of all the alleged circumstances, whether of time, place, amount, or otherwise.

Effect of denial of contract.

19. When a contract, promise, or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of the contract, promise, or agreement, whether with reference to any Act, or otherwise, or of the authority of any person by whom the contract, promise, or agreement is alleged to have been made.

Effect of documents to be stated.

20. When the contents of a document are material, it is sufficient to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.

Malice, knowledge, &c.

21. When it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it is sufficient to allege the same as a fact without setting out the circumstances from which it is to be inferred.

Notice.

22. When it is material to allege notice to any person of any fact, matter, or thing, it is sufficient to allege the notice as a fact, unless the form or the precise terms of the notice, or the circumstances from which such notice is to be inferred, are material.

Implied contract or relation.

23. When any contract or any relation between any persons is to be implied from a series of letters or conversations, or otherwise from a number of circumstances, it is sufficient to allege the contract or relation as a fact, and to refer generally to the letters, conversations, or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from the circumstances, he may state them in the alternative.

Stated or settled account to be alleged.

24 When the cause of action is a stated or settled account, the same must be alleged with sufficient particulars, but when a statement of account is relied on by way of evidence or admission of some other cause of action which is pleaded, the same shall not be alleged in the pleadings.

Presumptions of law.

25. A party need not in any pleading allege any matter of fact which the law presumes in his favour, or as to which the burden of proof does not lie upon him, unless it has first been specifically denied by the other party; for example, the consideration for a bill of exchange when the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim.

Points of law may be raised by pleadings.

26. Any party may raise by his pleading any point of law, and any point so raised shall, if not previously disposed of, be disposed of by the Justice who tries the action, at or after the trial: Provided that by

consent of the parties, or by order of the Court or a Justice, made on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

Dismissal of action.

27. If in the opinion of the Court or Justice the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, claim of damages, ground of defence, set-off, or cross-claim therein, the Court or Justice may thereupon dismiss the action or give or make such other judgment or order therein as is just.

Technical objection.

28. No technical objection shall be made to any pleading on the ground of any alleged want of form.

When judgment pleaded.

29. When a judgment is pleaded the party pleading must, within ten days after demand by the opposite party, deliver to him a copy of the judgment, certified by the proper officer of the Court by which the judgment was given. In default of such delivery, the Court or a Justice may order the pleading to be struck out or amended.

Striking out pleading where no reasonable cause of action or defence disclosed.

30. The Court or a Justice may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or ground of defence, or that it shows that the action or defence is frivolous or vexatious; and in any such case the Court or a Justice may order that the action be stayed or dismissed, or that judgment be entered as upon default of pleading, as may be just.

Striking out pleadings in other cases.

31. The Court or a Justice may at any stage of the proceedings order to be struck out or amended any matter in any pleading which is unnecessary or scandalous, or which tends to prejudice, embarrass, or delay the fair trial of the action; and may in any such case order the costs of the application to be paid as between solicitor and client.

Notice to plead or set down demurrer.

32. Upon every pleading, except a joinder of issue or a demurrer, there shall be endorsed a notice requiring the opposite party to deliver his pleading in reply thereto within the prescribed time.

Upon every demurrer there shall be endorsed a notice requiring the party whose pleading is demurred to to set the demurrer down within ten days for argument.

ORDER XVIII.

Particulars.

Order for particulars.

1. The Court or a Justice may in any case order either party to deliver to the other a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice, or written proceeding, upon such terms, as to costs and otherwise, as are just.

Effect of order for particulars.

2. The party at whose instance particulars have been delivered under a Justice’s order shall, unless the other otherwise provides, have the same length of time for taking any step in the action after the delivery of the particulars that he had at the return of the summons. Save as in this rule provided, an order for particulars shall not, unless the order otherwise provides, operate to stay proceedings, or to give any extension of time.

Actions for damage by collision.

Preliminary acts to be filed.

3. In actions for damage by collision between vessels, unless the Court or a Justice otherwise orders, the plaintiff shall within seven days after the commencement of the action, and the defendant shall within seven days after appearance, and before any pleading is delivered, file in the Registry a document to be called a preliminary act, which shall be sealed up, and shall not be opened until ordered by the Court or a Justice, and which shall contain a statement of the following particulars:—

(a) The names of the vessels which came into collison, and the names of their masters;

(b) The time of the collision;

(c) The place of the collision;

(d) The direction and force of the wind;

(e) The state of the weather;

(f) The state and force of the tide;

(g) The course and speed of the vessel when the other was first seen;

(h) The lights, if any, carried by her;

(i) The distance and bearing of the other vessel when first seen;

(k) The lights, if any, of the other vessel which were first seen;

(l) Whether any lights of the other vessel, other than those first seen, came into view before the collision;

(m) What measures were taken, and when, to avoid the collision;

(n) The parts of each vessel which first came into contact;

(o) What sound signals, if any, were given, and when;

(p) What sound signals, if any, were heard from the other vessel and when.

The Court or a Justice may, on the application of either party, order the preliminary acts to be opened at any time and the evidence to be taken thereon without its being necessary to deliver any pleadings; but in that case, if either party intends to rely on the defence of compulsory pilotage, he may do so, upon giving notice thereof in writing to the other party, within two days from the opening of the preliminary acts or within such further time as the Court or a Justice allows.

Opening acts.

4. The preliminary acts may be opened as soon as the action has been set down for trial.

ORDER XIX.

Statement of Claim.

Claim beyond endorsement.

1. When a statement of claim is delivered, the plaintiff may a therein alter, modify, or extend his claim against any defendant who has appeared, without any amendment of the endorsement of the writ. (Note.—See Order XXXIII., Rule 1.)

Relief claimed to be specifically stated.

2. Every statement of claim shall state specifically the relief which the plaintiff claims, whether singly or in the alternative, and it shall not be necessary to ask for general or other relief, which may always be given, as the Court or a Justice thinks just, to the same extent as if it had been asked for. And the same rule shall apply to any cross claim made by the defendant in his defence.

Statement of claim.

3. The delivery of statements of claim shall be regulated as follows:—

(a) Subject to the provisions of Order XL., Rule 9, as to filing a statement of claim when the defendant does not appear, a statement of claim need not be delivered unless the defendant at the time of entering his appearance, or within ten days thereafter, gives notice in writing to the plaintiff or his solicitor that he requires a statement of claim to be delivered:

(b) If a statement of claim has not been delivered, and the defendant gives notice requiring the delivery of a statement of claim, the plaintiff shall, unless otherwise ordered by the Court or a Justice, deliver it within four weeks from the time of his receiving such notice:

(c) The plaintiff may deliver a statement of claim, either with the writ of summons or notice in lieu of writ of summons, or at any time afterwards, either before or after appearance, notwithstanding that the defendant has appeared and has not required the delivery of a statement of claim: Provided that, when a defendant has appeared and has not required the delivery of a statement of claim, a statement of claim shall not, without the leave of the Court or a Justice, be delivered later than three months after the appearance has been entered:

(d) When the plaintiff delivers a statement of claim without being required to do so, or the defendant unnecessarily requires a statement of claim to be delivered, the Court or a Justice, if it appears that the delivery of a statement of claim was unnecessary or improper, may make such order as to the costs occasioned thereby as is just.

ORDER XX.

Defence.

Mere denial insufficient.

1. In actions for a debt or liquidated demand in money, a mere denial of the debt is not sufficient.

Defence to action on bills, &c.

2. In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact; for example, the drawing, making, endorsing, accepting, presenting, or notice of dishonour, of the bill or note or cheque.

Defence to action for debt or liquidated demand.

3. In actions to recover a debt or liquidated demand under a contract, a defence in denial must deny any matters of fact from which the liability of the defendant is alleged to arise which are disputed; for example, in actions for goods bargained and sold or for goods sold and delivered; the defence must deny the order or contract, the delivery, or the amount claimed; in an action for money received to the use of the plaintiff, it must deny the receipt of the money, or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff.

Pleading to damages.

4. A denial or defence shall not be necessary as to damages claimed or their amount; but the damages shall be deemed to be put in issue in all cases, unless expressly admitted.

Denial of right of person in representative capacity.

5. If any party desires to put in issue the right of any other party to claim as executor or administrator, or as trustee, whether in bankruptcy or insolvency or otherwise, or in any representative or other alleged capacity, or to put in issue the alleged constitution of any partnership firm, he must do so specifically.

Time for delivery of defence.

6. When a statement of claim is delivered to a defendant, he must deliver his defence within twenty-one days from the time of the delivery of the statement of claim, or from the time limited for appearance, whichever is the later time, unless such period is extended by the Court or a Justice.

Time for delivery of voluntary defence.

7. A defendant who has appeared in an action, and who has neither received nor required the delivery of a statement of claim, must deliver his defence, if any, within twenty-one days after his appearance, unless the time is extended by the Court or a Justice.

Admissions.

8. When the Court or a Justice is of opinion that any allegation of fact denied or not admitted by the defence ought to have been admitted, the Court or a Justice may make such order as is just with respect to any extra costs occasioned by the denial or failure to admit.

Cross-action.

9. When a defendant relies upon any facts or circumstances alleged in the pleadings as establishing a right of cross-action, he must, in his defence, state specifically that he relies on them by way of cross-action.

Answer by way of cross-action.

10. The plaintiff may set up, in reply to a defence by way of cross action, any matter arising out of the facts alleged in the defence which would be available to him as a defence if the defence were a statement of claim in an action against him, notwithstanding that the reply may in itself be in the nature of a cross-action.

Judgment for balance.

11. When, in any action for a pecuniary demand, a set-off or cross claim for a pecuniary demand is established as a defence against the plaintiff’s claim, the Court or a Justice may, if the balance is in favour of the defendant, give judgment for the defendant for such balance or may otherwise adjudge to the defendant such relief as he is entitled to upon the merits of the case.

Plea in abatement.

12. No defence shall be pleaded in abatement.

ORDER XXI.

Payment into Court.

Defendant may pay money into Court with or without admitting liability.

1. In an action to recover a debt or damages, the defendant may, before or at the time of delivering his defence, or at any later time by leave of the Court or a Justice, pay into Court a sum of money by way of satisfaction, which shall, unless otherwise stated, be taken to admit the cause of action in respect of which the payment is made:

Or he may pay money into Court in respect of any cause of action with a defence denying liability in respect thereof; in which case the money so paid into Court shall be subject to the provisions of Rule 7 of this Order.

Defence of tender.

2. When a defence sets up a tender before action, the sum of money alleged to have been tendered must be paid into Court before the delivery of the defence.

Defence to state payment.

3. Payment into Court shall be signified in the defence, and the claim or cause of action, if any, in satisfaction of which the payment is made shall be specified therein.

Receipt to accompany

A. duplicate receipt for the money paid into Court shall be delivered with the defence.

Notice of payment.

4. If the defendant pays money into Court before delivering his defence, he must serve upon the plaintiff a notice specifying both the fact that he has paid in the money and also the cause of action in respect of which the payment has been made.

Receipt.

A duplicate receipt for the money paid into Court shall be delivered with the notice.

Plaintiff may accept in satisfaction.

5. When payment into Court is made before delivery of a defence, the plaintiff may, within eight days after notice of the payment, and when the payment is first signified in a defence the plaintiff may at any time before joining issue, accept in satisfaction of the cause of action in respect of which the payment has been made the sum so paid in, in which case he shall give notice of such acceptance to the defendant, and shall be at liberty, in case the whole action is thereby satisfied, to tax his costs, if he is entitled to any, after the expiration of four days from the service of such notice, unless the Court or a Justice otherwise orders, and in case of non-payment of the costs within four days after taxation he may sign judgment for his costs so taxed.

Payment out of Court.

6. When money is paid into Court before delivery of a defence, or when the liability of a defendant in respect of a claim or cause of action in respect of which money is paid into Court is not denied in the defence, the money paid into Court shall be paid out to the plaintiff at his request, or to his solicitor on his written order, unless the Court or a Justice otherwise orders.

When defence denies liability.

7. When the liability of the defendant in respect of the cause of action in satisfaction of which the payment into Court has been made is denied in the defence, the following Rules shall apply:—

(a) The plaintiff may accept, in satisfaction of the cause of action in respect of which the payment into Court has been made, the sum so paid in, in which case all further proceedings in respect of that cause of action, except as to costs, shall be stayed; or he may join issue, in which case the money shall remain in Court subject to the provisions hereinafter contained:

(b) If the plaintiff accepts the money so paid in, he shall give notice of such acceptance to the defendant; and thereupon the money shall be paid out to him at his request or to his solicitor on his written order, unless the Court or a Justice otherwise orders.

(c) If the plaintiff does not accept, in satisfaction of the cause of action in respect of which the payment into Court has been made, the sum paid in, but proceeds with the action in respect of that cause of action, or any part thereof, the money shall remain in Court, and shall, on the determination of the action, be subject to the order of the Court or a Justice, and shall not be paid out of Court

except in pursuance of such, an order. If the plaintiff proceeds with the action in respect of that cause of action or any part thereof, and recovers less than the amount paid into Court, the amount paid in shall be ordered to be applied, as far as is necessary, in satisfaction of the plaintiff’s claim; and the balance shall, unless otherwise ordered, be repaid to the defendant. If the defendant succeeds in respect of that cause of action, the whole amount shall be ordered to be repaid to him.

Consolidated actions.

8. When money is paid into Court in two or more actions which are consolidated, the money paid in and the costs in all the actions shall unless otherwise directed by the order of consolidation, be dealt with in the same manner as in the test action.

ORDER XXII

Reply and Subsequent Pleadings.

Time for reply.

1. A plaintiff shall deliver his reply, if any, within eight days after the defence or the last of the defences has been delivered, unless the time is extended by the Court or a Justice.

Pleading by leave after reply.

2. No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the Court or a Justice, and then shall be pleaded only upon such terms as the Court or Justice thinks fit.

Pleadings subsequent to reply.

3. Subject to the last preceding Rule, every pleading subsequent to reply shall be delivered within eight days after the delivery of the previous pleading, unless the time is extended by the Court or a Justice.

Effect of joinder of issue.

4. As soon as any party has joined issue upon the preceding pleading of the opposite party simply, without adding any further or other pleading thereto, the pleadings as between those parties shall be deemed to be closed.

New assignment.

5. A new assignment shall not be necessary or used. But everything which would otherwise need to be alleged by way of new assignment shall be introduced by amendment of the statement of claim.

ORDER XXIII.

Matters arising Pending the Action.

Before defence.

1. Any ground of defence which has arisen after action brought, but before the defendant has delivered his defence, and before the time limited for his doing so has expired, may be set up by the defendant in his defence, either alone or together with other grounds of defence. And if, after a defence has been delivered any ground of reply arise to any set-off or cross-claim alleged therein by the defendant, it may be set up by the plaintiff in his reply, either alone or together with any other ground of reply.

Further defence or answer.

2. When any ground of defence arises after the defendant he delivered a defence, or after the time limited for his doing so has expired, the defendant may, and when any ground of reply to any set-off or cross-claim arises after reply, or after the time limited for delivering

a reply has expired, the plaintiff may, within eight days after such ground of defence or reply has arisen, or, by leave of the Court or a Justice, at any subsequent time, deliver a further defence or reply, as the case may be, setting forth such ground of defence or reply.

Confession of defence.

3. When any defendant, in his defence, or in any further defence delivered as in the last preceding Rule mentioned, alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of that defence, and may thereupon sign judgment for his costs up to the time of the pleading of that defence, with costs of judgment, unless the Court or a Justice, either before or after the delivery of such confession, otherwise orders.

ORDER XXIV.

Demurrer.

Demurrer.

1. Any party may demur to any pleading of the opposite party, or to any part of a pleading which sets up a distinct cause of action, or to any distinct and severable claim for damages, or to any claim for damages exceeding an amount named by the demurring party, or to any pleading or part of a pleading of the opposite party which sets up a distinct ground of defence, set-off, cross-claim, or reply, as the case may be, on the ground that the facts alleged do not show any cause of action, claim for damages, or ground of defence, set-off, cross-claim, or reply, as the case may be, to which effect can be given by the Court as against the party demurring.

Demurrer to state whether the whole or part.

Ground.

Frivolous.

Demurrer set aside with costs.

2. A demurrer must state specifically whether it is to the whole or to a part, and if so to what part, of the claim or pleading of the opposite party. It must state some ground in law for the demurrer, but the party demurring shall not on the argument of the demurrer be limited to the ground so stated. If no ground or only a frivolous ground of demurrer is stated, the Court or a Justice may set the demurrer aside with costs.

Delivery.

3. A demurrer shall be delivered in the same manner and within the same time as any other pleading.

Demurrer and defence in one pleading.

4. When a party entitled to deliver desires both to demur and plead to the last pleading of the opposite party, or to demur to part of the last pleading of the opposite party and to plead to other part thereof, he shall combine the demurrer and other pleading.

Leave to plead and demur together not necessary.

5. Any party may plead and demur to the same matter without leave. When a party demurring pleads as well as demurs, it shall be in the discretion of the Court or a Justice to direct whether the issues of law or fact shall be first disposed of.

Demurrer to claim founded on document.

6. When the claim or defence of any party depends, or may depend, upon the construction of a written document, and the party in his pleading refers to the document but does not set it out at length, the opposite party may, in his demurrer, set out the document at length or so much thereof as is material, and demur to the claim or defence founded upon it, in the same manner as if it had been pleaded at length by the other party.

If he does not set out the document truly or sufficiently, the Court or a Justice may order the demurrer to be struck out or amended.

Demurrer not entered for argument to be held sufficient.

7. When a demurrer, either to the whole or part of a pleading, is delivered, either party may set down the demurrer for argument before the Court immediately, and the party setting down the demurrer shall on the same day give notice thereof to the other party. If the demurrer is not set down and notice given within ten days after delivery, and if the party whose pleading or claim is demurred to does not within that time amend, the demurrer shall be held sufficient for the same purposes and with the same result as to costs as if it had been allowed on argument, and the same judgment may be entered thereon.

Amendment pending demurrer.

8. While a demurrer to the whole or any part of a pleading is pending, that pleading shall not be amended except on payment of the costs of the demurrer, unless by leave of the Court or a Justice.

Costs when demurrer allowed.

9. When a demurrer to the whole or part of any pleading or claim is allowed upon argument, the party whose pleading or claim is demurred to shall pay to the demurring party the costs of the demurrer, and when a demurrer is overruled the demurring party shall pay to the opposite party the costs occasioned by the demurrer, unless in either case the Court otherwise orders.

Effect of decision on demurrer going to whole action.

10. Subject to the power of amendment, when a demurrer to the whole of any pleading, so far as it relates to a separate cause of action is allowed or overruled, the Court shall give such judgment as to that cause of action as upon the pleadings the successful party appears to be entitled to, and, if the judgment is for the defendant with respect to the whole action, the plaintiff shall pay to the defendant the costs of the action, unless the Court otherwise orders.

Where demurrer allowed to part of a pleading that part is to be deemed to be struck out.

11. When a demurrer to any pleading or claim or part of a pleading or claim is allowed in any case not falling within the last preceding Rule, then, subject to the power of amendment, the matter demurred to shall as between the parties to the demurrer be deemed to be struck out of the pleadings, and the rights of the parties shall be the same as if it had not been pleaded.

Demurrer overruled with leave to plead.

12. When a demurrer is overruled, the Court may make such order and upon such terms as the Court thinks fit, for allowing the demurring party to raise by further pleading any case which he desires to set up in opposition to the matter demurred to.

Form of entry for argument.

13. A demurrer shall be set down for argument by filing a copy of the pleadings so far as they relate to the matters of law raised by the demurrer, and delivering to the Registrar a memorandum of entry for argument.

When demurrer required to be heard before Full Court.

14. When the party entering a demurrer for argument enters it to be heard before a single Justice, and any other party desires it be heard before a Full Court in the first instance, he may, within four days after receiving notice that the demurrer has been so entered deliver to the Registrar and to the opposite party a memorandum to that effect, and the demurrer shall thereupon be deemed to have been entered to be heard before a Full Court in the first instance.

If the action is pending in a District Registry, the pleadings shall be forthwith transmitted to the Principal Registry, unless a sitting of a Full Court is appointed to be held within sixty days at the place where the District Registry is situated. After the decision of the Full Court the pleadings shall be returned to the District Registry with a certificate of the judgment or order of the Full Court.

Pleadings for Justices.

15. Four days at least before the day for which a demurrer is set down for argument the party setting it down shall leave at the chambers of the Justice, or at the chambers of each of the Justices who are to sit on the hearing of the argument, a copy of the pleadings so far as they relate to the matters of law raised by the demurrer.

ORDER XXV.

Discontinuance, Etc.

Discontinuance of action before defence.

1. The plaintiff may, at any time before receipt of the defence of any defendant, or after the receipt of the defence, but before taking any other proceeding in the action against that defendant other than an interlocutory application, by notice in writing, wholly discontinue his action against that defendant, or withdraw any part of his alleged cause of action against that defendant, and thereupon he shall pay that defendant his costs of the action, or, if the action is not wholly discontinued, the taxed costs occasioned by the matter so withdrawn.

Such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action for the same cause.

Not otherwise except by leave.

2. Save as in this Order provided, a plaintiff may not withdraw the record or discontinue the action without leave of the Court or a Justice: But the Court or a Justice may, before, or at, or after, the hearing or trial, upon such terms as to costs, and as to bringing any other action, or otherwise, as are just, order the action to be discontinued, or any part of the alleged cause of action to be struck out.

Court may allow a defendant to discontinue his defence.

3. The Court or a Justice may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his defence to be withdrawn or struck out; but a defendant may not withdraw his defence, or any part thereof, without such leave.

Effect on consolidated actions.

4. The discontinuance of an action by the plaintiff shall not prejudice any action consolidated therewith.

Withdrawal by consent.

5. When a cause has been entered for trial, it may be withdrawn by either the plaintiff or the defendant, upon production to the proper officer of a consent in writing, signed by the parties.

Entering judgment on discontinuance.

6. A defendant may enter judgment for the costs of the action if it is wholly discontinued against him, or for the costs occasioned by the matter withdrawn if the action is not wholly discontinued, if such respective costs are not paid within four days after taxation.

1539/27.—2

ORDER XXVI.

Default of Pleading.

Default of plaintiff in delivering statement of claim.

1. If a plaintiff, being bound to deliver a statement of claim, does not deliver it within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court or a Justice to dismiss the action with costs for want of prosecution; and on the hearing of the application the Court or Justice may order the action to be dismissed accordingly, or may make such other order, and on such terms, as is just.

Liquidated demand.

2. If the plaintiff’s claim is for a debt or liquidated demand only, and any defendant fails to deliver a defence within the time allowed for that purpose, the plaintiff may, at the expiration of that time, enter final judgment against him for the amount claimed, together with interest at the rate claimed by the statement of claim as the rate agreed upon, if any, or, if no rate is claimed to have been agreed upon, at the rate of five per centum per annum to the date of the judgment, with his costs of action.

Detention of goods; damages.

3. If the plaintiff’s claim is for detention of goods and pecuniary damages, or either, and all the defendants make default as mentioned in Rule 2 of this Order, the plaintiff may enter interlocutory judgment against the defendants, and a writ of inquiry may issue to assess the value of the goods and the damages, or either, as the case may be. But the Court or a Justice may order that, instead of issuing a writ of inquiry, the value and the damages, or either, shall be ascertained in any other way which the Court or Justice directs.

Several defendants.

4. When in any such action as in the last preceding Rule mentioned there are several defendants, of whom one or more make default as mentioned in Rule 2 of this Order, and the others do not make default, the plaintiff may enter interlocutory judgment against the defendants so making default. And in that case, the value of the goods and the damages, or either, as the case may be, may be assessed, as against the defendants suffering judgment by default, at the same time as the trial of the action or issues therein against the other defendants. But the Court or a Justice may order that, instead of proceeding to the trial, the value and the damages, or either, shall be ascertained by a writ of inquiry, as directed by the last preceding Rule, or in any other way which the Court or Justice directs.

Liquidated demand and detention of goods and damages.

5. If the plaintiff’s claim is for detention of goods and pecuniary damages, or either, and also for a debt or liquidated demand, and any defendant makes default as mentioned in Rule 2 of this Order, the plaintiff may enter final judgment against him for the debt or liquidated demand, with interest and costs, and may also enter interlocutory judgment for the value of the goods and the damages, or either, as the case may be, and may proceed as provided in Rules 3 and 4 of this Order.

Defence to part claim only.

6. If the plaintiff’s claim is for a debt or liquidated demand, or the detention of goods and pecuniary damages, or for any of such matters and the defendant delivers a defence which purports to offer an answer to part only of the plaintiff’s alleged cause of action, then, if the unanswered part consists of a separate cause of action, or is severable

from the rest, as in the case of part of a debt or liquidated demand, the plaintiff may, by leave of the Court or a Justice, enter judgment, final or interlocutory as the case may be, for the part unanswered: Provided that, when there is a cross-claim, execution on the judgment in respect of the plaintiff’s claim shall not issue without leave of the Court or a Justice.

Default in other cases.

7. In all other actions than those in the preceding Rules of this Order mentioned if the defendant makes default in delivering a defence, the plaintiff may set down the action as against him on motion for judgment, and such judgment shall be given as upon the statement of claim the plaintiff appears to be entitled to.

One of several defendants in default.

8. When, in any such action as mentioned in the last preceding Rule, there are several defendants, then, if any defendant makes default in delivering a defence, the plaintiff may, if the cause of action is severable, set down the action at once on motion for judgment against that defendant, or may in any case set it down on motion for judgment against him at the time when it is entered for trial or set down on motion for judgment against the other defendants. In the first case the Court may adjourn the motion to come on at the time last mentioned.

Close of pleadings on default.

9. If the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading, within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been admitted.

Judgment by default in other cases.

10. In any case not hereinbefore provided for, if any party makes default in delivering any pleading, the opposite party may apply to the Court or a Justice for such judgment (if any) as upon the pleadings he appears to be entitled to. And the Court or Justice may order judgment to be entered accordingly, or make such other order as is necessary to do complete justice between the parties.

Setting aside judgment by default.

11. Any judgment by default under this Order may be set aside or varied by the Court or a Justice, upon such terms as to costs or otherwise as the Court or Justice thinks fit.

Effect of judgment by default.

12. In any case in which a plaintiff enters judgment under the provisions of this Order against any defendant who makes default in delivering a defence, the entry of judgment shall not, nor shall the issue of execution thereon, prejudice his right to proceed in the action against the other defendants.

ORDER XXVII.

Amendment.

Amendment in general.

1. The Court or a Justice may, in any cause or matter, at any stage of the proceedings, allow or direct either party to alter or amend the writ of summons, or any endorsement thereon or any pleadings or other proceedings, in such manner and on such terms as are just.

Amendment of writs of summons.

2. When a writ of summons or any endorsement thereon is amended the amendment shall be made in such manner as to distinguish the amendments from the original matter, and the writ shall be resealed.

A copy thereof, as amended, shall be filed, unless the Court or Justice allows the amendment to be made upon the copy of the original already filed.

Amendment of statement of claim by plaintiff without leave.

3. The plaintiff may, without any leave, amend his statement of claim, or the endorsement on the writ when the endorsement is deemed to be the statement of claim, once at any time before the expiration of the time limited for reply and before replying, or when no defence is delivered at any time before the expiration of twenty-eight days from the appearance of the defendent who last appears.

Amendment of set-off by defendant without leave.

4. A defendent who has pleaded a set-off may, without any leave, amend the set-off at any time before the expiration of the time allowed him for pleading to the reply, and before pleading, or, if the only reply is a joinder of issue, then at any time before the expiration of eight days from the delivery of the joinder of issue.

Disallowances amendment.

5. When any party has amended his pleading or endorsement under either of the last two proceeding Rules, the opposite party may, within eight days after the delivery to him of the amended pleading or endorsement, apply to the Court or a Justice to disallow the amendment, or any part thereof, and the Court or Justice may, if satisfied that the justice of the case requires it, disallow the same, or may allow it subject to such terms as to costs or otherwise as are just.

Pleading to amended pleading.

6. When any party has amended his pleading or endorsement under the last-mentioned Rules, the opposite party shall plead to the amended pleading or endorsement, or amend his pleading, within the time which he then has to plead, or within eight days from the delivery of the amendment, whichever last expires; and if the opposite party has pleaded before the delivery of the amendment, and does not plead again or amend within the time abovementioned, he shall be deemed to rely on his original pleading in answer to such pleading as amended.

Amendment by leave.

7. In any case not provided for by the preceding Rules of this Order, application for leave to amend any pleading or endorsement may be made by either party to the Court or a Justice, or to the Justice at the trial of the action, and the amendment may be allowed upon such terms as to costs or otherwise as are just.

Failure to amend after order.

8. If a party who has obtained an order for leave to amend any proceeding does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, the leave to amend shall, on the expiration of the time so limited, or of such fourteen days (as the case may be), cease to have effect, unless the time is extended, by the Court or a Justice.

Clerical mistakes and accidental omissions.

9. Clerical mistakes in judgments or orders, or errors appearing therein and arising from any accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons, and an appeal shall not lie from an order directing such amendment.

ORDER XXVIII.

Security.

1. Security in General.

General form of security.

1. Whenever in any cause or matter in the High Court security is required to be given by or on behalf of any party, the security shall, unless otherwise required by law or by these Rules, or unless otherwise directed by the Court or a Justice, be given by an instrument in writing signed by the person to be bound, whether as principal or surety, and setting forth that he submits himself to the jurisdiction of the Court, and consents that, upon the happening of the event specified in the instrument, judgment may be signed against him for the amount for which the security is given.

Title: Attestation.

2. The instrument shall be entitled in the cause or matter in which the security is given, and shall be executed by each person to be bound in the presence of a Registrar or a commissioner of affidavits, who shall satisfy himself that the person signing it understands the liability which he incurs and that the liability may be enforced against him in a summary way. The sureties may execute the instrument either together or separately.

A commissioner shall not attest a security on behalf of any person for whom he, or any person in partnership with him, is acting as solicitor or agent.

Form of bond for security.

3. When a bond is ordered to be given as security, it shall, unless the Court or Justice otherwise orders, be given to the party for whose benefit it is given.

Two sureties required.

4. The security shall, unless otherwise directed by Rules of Court, or unless otherwise ordered by the Court or a Justice, be given by two sureties, who shall be approved by the Registrar of the Registry in which the cause or matter is pending, and each of whom shall be bound in the full amount of the security.

Security to be filed of record.

5. Every instrument of security made under this Order shall be filed, and shall thereupon become a record of the Court.

Enforcement of security.

6. Any party claiming to be entitled to enforce the security against any person by whom it is signed may apply to a Justice by summons in the cause or matter in which the security is given for an order that judgment be entered against the person by whom the security is given in accordance with his submission, and the Justice may order that judgment be entered accordingly in favour of the party for such amount as is just.

To be filed within six months.

7. No such instrument, and no recognisance or other security of any kind, shall be filed after the expiration of six months from the time of its execution, except by order of the Court or a Justice, made upon notice to all the persons by whom the security was executed or their representatives.

Payment into court in lieu of security.

8. Any party directed to give security may give it by paying the amount for which security is to be given into Court to a separate account in the cause or matter, to be called the “Security Account,”

and to abide the order of the Court, and giving notice of the payment to the party for whose benefit the security is to be given. The notice shall be accompanied by an original receipt for the money paid into Court.

2. Security for Costs.

Security for costs of plaintiff.

9. A plaintiff ordinarily resident beyond the Commonwealth may be ordered to give security for the costs of the cause, whether he is or is not temporarily within the Commonwealth.

Second action for same cause.

10. When a plaintiff, who has been ordered to pay the defendant the costs of a cause whether in the High Court or another Court, institutes a fresh cause in the High Court against the same defendant in respect of the same, or substantially the same, cause of action, the Court or a Justice may order him to give security for the costs of the fresh cause.

Security to be given.

11. When security for costs is ordered to be given, the security shall be of such amount and shall be given at such times, and in such manner, as the Court or a Justice directs.

Amount of security

12. The amount of security shall, unless the Court or a Justice otherwise orders, be Fifty pounds.

Time for application.

13. An application to compel the plaintiff in an action to give security for costs must, in ordinary cases, be made before issue joined: But the Court or a Justice may, under special circumstances, allow the application to be made at any later time.

Staying proceedings.

14. When a party is ordered to give security for costs, the action, or other proceeding in respect whereof the security is required to be given, shall be stayed until the security is given, unless the Court or a Justice otherwise orders.

Disposal of money paid into Court.

15. In any case in which money has been paid into Court as security for costs, when the cause has been finally disposed of, if the by whom the payment into Court was made is adjudged to pay the costs of the cause, or any balance in respect of the costs of the cause, or any other balance of costs in the cause, to any parties for whose security the payment was made, the amount standing to the credit of the “Security Account” in the cause shall, unless the Court or a Justice otherwise orders, be liable to be applied in payment of the costs so ordered to be paid to those parties. In any other case the party by whom the payment into Court was made shall be entitled to have the sum paid out to him.

Registrar certify at conclusion of cause.

16. When a cause has been finally disposed of by consent or otherwise the Registrar shall, on the application of any party to the cause, and on being satisfied that that party is entitled to have any money standing to the credit of the “Security Account” paid out to him, give him a certificate to that effect.

Saving.

17. Nothing in the eight last preceding Rules shall be construed to affect the power of the Court or a Justice to require security for cost to be given by any party to any cause or matter in any case in which it is just that such security should be given.

ORDER XXIX.

Discovery and Inspection.

Discovery by interrogatories

1. In any cause the plaintiff or defendant may at any time before plaintiff is in a position to give notice of trial, or at any later time by leave of the Court or a Justice, deliver interrogatories in writing for the examination of the opposite parties or any of them; and the interrogatories when delivered shall have a note at the foot thereof, stating which of the interrogatories each of the parties is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without a special order for that purpose.

Interrogatories which do not relate to any matters in question in the cause shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness. A copy of the interrogatories delivered by any party shall be filed in Court on the day on which the same are delivered to the opposite party.

Costs of interrogatories.

2. In adjudging the costs of the cause, inquiry shall, at the instance of any party, be made into the propriety of exhibiting any interrogatories, and if it is the opinion of the Court or a Justice upon the report of the taxing officer, or without such report, and either with or without an application for inquiry, that the interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the interrogatories and the answers thereto shall be paid in any event by the party in fault.

Corporations.

3. If any party to a cause is a corporation or a joint stock company, or any body of persons empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to be answered by some member or officer of the corporation, company, or body, on their behalf, and an order may be made accordingly.

Answer by affidavit.

4. Interrogatories shall be answered by affidavit to be filed within twenty-eight days after delivery of the interrogatories, or within such other time as the Court or a Justice allows.

A copy of the affidavit shall be delivered to the interrogating party on the same day on which it is filed.

Objections to interrogatories by answer.

5. An objection to answering any interrogatory, whether on the around that it is scandalous or irrelevant, or is not delivered bona fide for the purpose of the cause, or that the matters inquired into are not sufficiently material at that stage of the cause, or on any other ground, may be taken in the affidavit.

No exception to be taken.

6. No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court or a Justice on motion or summons.

Order to answer or answer further.

7. If any party interrogated omits to answer, or makes an insufficient answer to any interrogatory, the party interrogating may apply to the Court or a Justice for an order requiring him to answer, or to make further answer, as the case may be. An order may thereupon be made requiring him to answer, or make further answer, either by affidavit or upon oral examination, as the Court or Justice directs.

Application for discovery of documents.

9. Any party to a cause may, without any affidavit, apply to the Court or a Justice for an order directing any other party to the cause to make discovery on oath of the documents which are or have been in his possession or power, relating to any matters in question in the cause. On the hearing of the application the Court or Justice may make such order, either generally or limited to certain classes of documents, as in their discretion seems fit, or may adjourn the application.

Provided that discovery shall not he ordered, if and so far as the Court or Justice is of opinion that it is not necessary, either for disposing fairly of the cause or for saving costs.

Discovery by corporations.

9. If the party from whom discovery is sought is a corporation or a joint stock company, or any body of persons empowered by law to sue or he sued, whether in its own name, or in the name of any officer or other person, the application may be that the party, corporation, company, or body shall make the discovery by the affidavit of some member or officer of the corporation, company, or body and an order may be made accordingly.

Affidavit or document.

10. The party or person required to make discovery under either of the two last preceding Rules shall make or procure to be made an affidavit giving the required discovery as to all such documents as are or have been in the possession or power of the party relating to the matters in question in the cause, in which affidavit shall be specified which, if any, of the documents therein mentioned the party objects to produce.

The affidavit shall be filed, and a copy thereof shall be delivered to the opposite party on the same day on which it is filed.

Production of documents.

11. The Court or a Justice may, at any time during the pendency of any cause, order the production by any party thereto, upon his oath or in the case of such parties as are mentioned in Rule 9 of this Order, upon the oath of some member or officer, of such of the document in the possession or power of the party relating to any matter in question in such cause, as the Court or Justice thinks fit; and the Court or Justice may deal with such documents, when produced, in such manner as is just.

Inspection of documents referred to in pleadings or affidavits.

12. Any party to a cause may, at any time, by notice in writing require any other party in whose pleadings, particulars, or affidavits reference is made to any document, to produce the document for the inspection of the party giving the notice, or of his solicitor, and to permit them to take copies thereof.

Any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in the cause, unless he, being a defendant in the cause, satisfies the Court or Justice that the document relates only to his own title, or unless he satisfies the Court or Justice that he had some other sufficient ground for not complying with the notice.

Time and place for inspection.

Bank and trade books.

13. A party to whom notice to produce documents is given shall within two days from the receipt of the notice, if all the documents therein referred to have been set forth by him in the affidavit made under Rule 10 of this Order, or within four days from the receipt of such notice, if any of the documents referred to in the notice have not

been set forth by him in any such affidavit, deliver to the party giving the notice to produce a notice stating a time within seven days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, or in the case of bankers’ books or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which, if any, of the documents he objects to produce, and on what ground.

Order for inspection.

14. If a party served with notice under the last preceding Rule omits to give such notice of a time for inspection, or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, the Court or Justice may, on the application of the party desiring it, make an order for inspection in such place and in such manner as they think fit.

Special order.

15. The Court or a Justice may, at any time, on the application of any party to a cause, and whether an affidavit of documents has or has not already been ordered or made, make an order requiring any other party to the cause to state upon affidavit whether any specific document to be specified in the application is or has at any time been in his possession or power; and, if it has been, but is not then, in his possession, when he parted with it, and what has become of it.

Such application shall be made on an affidavit stating that, in the belief of the deponent, the party against whom the application is made has, or has at some time had, in his possession or power the document specified in the application, and that it relates to matters in question in the cause.

Verified copies

16. When inspection of any business books is applied for, the Court or a Justice may, if they think fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries. Every such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations: Provided that, notwithstanding that such a copy has been supplied, the Court or a Justice may order inspection of the book from which the copy was made.

Privilege.

17. When, on an application for an order for inspection, objection is made to the production of any documents, either on the ground of privilege or on any other ground, the Court or a Justice may inspect the document for the purpose of deciding as to the validity of the objection.

Premature discovery

18. If a party from whom discovery of any kind or inspection is sought objects to the discovery or inspection, or any part thereof, the Court or a Justice may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the cause, or that for any reason it is desirable that any issue or question in dispute in the cause should be determined before deciding upon the right to the discovery or inspection, order that the issue or question shall be first determined, and may reserve the question as to the discovery or inspection.

Non-compliance with order for discovery.

19. If any party fails to comply with an order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery may apply to the Court or a Justice for an order to that effect, and an order may be made accordingly.

Service on solicitor of order for discovery.

20. Service on the solicitor of a party against whom an order for interrogatories or discovery or inspection is made shall be sufficient service to found an application for an attachment for disobedience to the order. But the party against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order.

Attachment of solicitor.

21. A solicitor upon whom an order against any party for interrogatories or discovery or inspection is served under the last preceding Rule, and who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment.

Using answers of the interrogatories at trial.

22. Any party may, at the trial of a cause, or any issue in a cause, use in evidence any answer, or any part of an answer, of the opposite party to any interrogatory without putting in the whole of the answer, or the answers to other interrogatories: Provided that in any case the Justice may look at the whole of the answers, and if he is of opinion that any other answer or part of an answer is so connected with the answer put in that the last-mentioned answer ought not to be used without the other, he may direct such other answer or part of an answer to be put in by the party tendering the answer.

Discovery against Marshal.

23. In an action by or against the Marshal in respect of any matters connected with the execution of his office, the Court or a Justice may on the application of either party, order that the affidavit to be made in answer either to interrogatories or to an order for discovery shall be made by the officer actually concerned.

Order to apply to infants.

24. This Order shall apply to infant plaintiffs and defendants, and to their next friends and guardians ad litem.

ORDER XXX.

Admissions.

Notice of admission of acts.

1. Any party to a cause may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.

Notice to admit facts or documents.

Costs of refusal or neglect to admit.

2. Any party to a cause may, by notice in writing, call upon any other party to admit any specific fact, or any document, saving all just exceptions; and, in case of refusal or neglect to admit after such notice the costs of proving the fact or document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be unless at the trial or hearing the Court or Justice certifies that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice is given unless the omission to give the notice is, in the opinion of the taxing officer, a saving of expense.

Provided that any admission made in pursuance of such notice shall be deemed to be made only for the purposes of the particular cause or issue, and shall not be used as an admission against the party on any other occasion, or in favour of any person other than the party giving the notice: Provided also, that the Court or a Justice may at any time allow any party to amend or withdraw any admission so made on such terms as are just.

Judgment or order upon admissions of facts.

3. When admissions of fact have been made in a cause, either on the pleadings or otherwise, any party may, at any stage of the cause, apply to the Court or a Justice for such judgment or order as upon the admissions he is entitled to, without waiting for the determination of any other question between the parties; and the Court or a Justice may, upon such application, make such order, or give such judgment as is just.

ORDER XXXI.

Issues, Inquiries, and Accounts.

Issues may be prepared and settled.

1. When in any cause it appears to the Court or a Justice that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and the issues shall, if the parties differ, be settled by the Court or a Justice.

Inquiries and accounts when directed.

2. The Court or Justice may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries or accounts to be made or taken, notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.

ORDER XXXII.

Questions of Law and Issues without Pleadings.

1. Questions of Law.

Special case by consent.

1. The parties to any cause may concur in stating the questions of law arising therein in the form of a special case for the opinion of the Court. Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised thereby. Upon the argument of the case the Court and the parties shall be at liberty to refer to the whole contents of any documents referred to therein, and the Court shall be at liberty to draw from the facts and documents stated in the case any inference, whether of fact or law, which might have been drawn therefrom if they had been proved at a trial.

Special case by order before trial.

2. If in any cause it is made to appear to the Court or a Justice that there is any question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, the Court or Justice may make an order accordingly, and may direct the question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court or Justice deems expedient; and all such further proceedings as the decision of the question of law renders unnecessary may thereupon be stayed.

Special case to be filed.

3. Every special case shall be signed by the several parties or their solicitors, and shall be filed by the plaintiff.

Leave to set down where married woman, infant, or person of unsound mind is a party.

4. A special case in any cause to which a married woman, not being a party thereto in respect only of her separate property or in respect only of any separate right of action by or against her, or an infant, or a person of unsound mind who has not been so found or declared, or for whom a committee of the person or estate, as the case may be, has not been appointed, is a party, shall not be set down for argument without leave of the Court or a Justice, the application for which must be supported by sufficient evidence on oath that the statements contained in the special case, so far as the same affect the interest of the married woman, infant, or person of unsound mind, are true.

Agreement as to payment of money and costs.

5. The parties to a special case may sign a memorandum to the effect that, on the judgment of the Court being given in the affirmative or negative of any question of law raised by the case, a sum of money, fixed by the parties, or to be ascertained by the Court, or in such manner as the Court directs, shall be paid by one of the parties to the other of them, either with or without the costs of the cause; and the judgment of the Court may be entered for the sum so agreed or ascertained, with or without costs, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal.

Form of entry or argument.

6. Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, and, if any married woman, not being a party in respect only of such matters as in Rule 4 of this Order are specified, or if an infant, or any such person of unsound mind as mentioned in that Rule is a party to the cause, producing a copy of the order giving leave to enter the special case for argument.

Special case may be heard before Full Court in the first instance.

7. When the party entering a special case for argument enters it to be heard before a single Justice, and any other party desires it to be heard before a Full Court in the first instance, he may, within four days after receiving notice that the case has been so entered, deliver to the Registrar and to the opposite party a memorandum to that effect and the special case shall thereupon be deemed to have been entered to be heard before a Full Court in the first instance.

If the action is pending in a District Registry, the special case shall be forthwith transmitted to the Principal Registry, unless a sitting of the Full Court is appointed to be held within sixty days at the place where the District Registry is situated. After the decision of the Full Court the special case shall be returned to the District Registry with a certificate of the judgment or order of the Full Court.

Copies for Justices.

8. Four days at least before the day for which a special case is set down for argument the party setting it down shall leave a copy case at the Chambers of the Justice, or at the Chambers of each of the Justices who are to sit on the hearing of the argument.

2. Issues of Fact without Pleadings.

Trial of question of fact agreed upon.

9. If the parties to a cause agree as to any questions of fact to be decided between them, they may, at any time before judgment, by consent and by order of the Court or a Justice, proceed to the trial of those questions of fact without formal pleadings. Such questions may be entered for trial and tried in the same manner as issues joined upon pleadings in an action, and the proceedings thereon shall be subject to the same control by the Court or a Justice as when issue is joined upon pleadings.

Order for payment of sum of money.

10. The Court or a Justice may by consent of the parties order that, upon the finding in the affirmative or negative of any such question as in the last preceding Rule mentioned, a sum of money, fixed by the parties, or to be ascertained upon a question stated for that purpose, shall be paid by one of the parties to the other of them, either with or without the costs of the cause.

Entry of judgment upon the finding.

11. Upon the finding on any such question as in the last two preceding Rules mentioned, judgment may be entered for any sum so agreed or ascertained, or for any other relief to which the finding shows either party to be entitled, with or without costs, as the case may be, and execution may issue upon the judgment forthwith, unless otherwise agreed, or unless the Court or a Justice otherwise orders for the purpose of giving either party an opportunity of moving to set aside the finding or for a new trial.

Record of proceedings.

12. The proceedings upon any such issue as aforesaid may be recorded at the instance of either party, and the judgment, whether actually recorded or not, shall have the same effect as any other judgment in a contested action.

ORDER X XXIII.

Trial.

1. Place.

Place of trial.

1. The plaintiff may in the endorsement on his writ or in his statement of claim name the place where he purposes that the action shall be tried, which place shall be within the State in which the cause of action arose, and the action shall, unless the Court or a Justice otherwise orders, be tried in the place so named. When no place of trial is named, the place of trial shall, unless the Court or a Justice otherwise orders, be the place in which the Registry from which the writ was issued is situated.

2. Mode of Trial.

Trial by jury.

2. Any party to a suit may within ten days after notice of trial has been given, or within such extended time as the Court or a Justice allows, apply to the Court or a Justice for a trial with a jury of the suit or of any issues of fact, and the Court or Justice may if they think fit direct a trial with a jury of the suit or issues accordingly, and thereupon they shall be so tried, and the notice of trial shall stand for the next appointed Sittings of the Court at the place of trial, not being earlier than the day for which the notice was given.

Court may direct trial with jury at any time.

3. If in any cause or matter set down for trial before a Justice without a jury it appears to the Court or a Justice either before or at the trial that any issue of fact could be more conveniently tried before a Justice with a jury, the Court or Justice may direct that it shall be so tried, and may for that purpose vary any previous order.

Questions of fact may be tried differently or one before the other.

4. Subject to the provisions of the preceding Rules of this Order. the Court or a Justice may, in any cause or matter, at any time or from time to time, order that different questions or issues of fact arising therein shall be tried by different modes of trial, or that some questions or issues of fact shall be tried before others, and may appoint the places for such trials, and may for that purpose vary any previous order.

Trial to be before single Justice unless specially ordered.

5. Every trial of a question or issue of fact with a jury shall be held before a single Justice, unless it is specially ordered to be held before two or more Justices.

3. Notice and Entry of Trial.

Notice of trial by plaintiff.

6. Notice of trial may be given with a joinder of issue closing the pleadings, or with the reply, or at any time after the issues of fact are ready for trial, or, if there are no pleadings, at any time after the expiration of ten days from appearance.

Notice of trial by defendant.

Motion to dismiss for want of prosecution.

7. If the plaintiff does not give notice of trial within three months after he is first entitled to do so, or within the like period after a new trial is ordered, or, in either case, within such extended time as the Court or a Justice allows, any defendant may, before notice of trial given by the plaintiff, give notice of trial, or apply to the Court or a Justice to dismiss the action for want of prosecution; and on the hearing of such application the Court or a Justice may order the action to be dismissed accordingly, or may make such other order, and on such terms as are just.

Form of notice of trial.

8. The notice of trial shall state whether it is for the trial of the cause or of questions or issues therein, and shall name the place where, and the day on which, the trial is to be had.

Length of notice.

9. Sixteen days’ notice of trial shall be given, unless the party to whom it is given has consented, or is under terms, to take shorter notice of trial; and such notice shall be sufficient in all cases, unless otherwise ordered by the Court or a Justice.

Entry of cause for trial.

10. Notice of trial shall be given before entering the cause or questions or issues for trial; and a cause may be entered for trial, notwithstanding that the pleadings are not closed, provided that notice of trial has been given.

Avoidance of notice of trial.

11. The entry must be made within six days after notice of trial is given; otherwise the notice of trial shall cease to have effect.

Notice of trial.

12. Notice of trial of a cause or questions or issues before a Justice with a jury shall be for the first day of the Sittings, unless the Court or a Justice allows it to be given for a later day.

Countermanding notice.

13. A notice of trial shall not be countermanded except by consent or by leave of the Court or a Justice, which leave may be given subject to such terms as to costs, or otherwise, as are just.

Entry for trial by party served with notice.

14. If the party giving notice of trial omits to enter the cause or issues for trial on the day of or the day after giving notice of trial, the party to whom notice has been given may, within four days thereafter, enter the same for trial, unless in the meantime the notice has been countermanded under the last preceding Rule.

4. Papers for Justice.

Copies of pleadings, &c., to be delivered.

15. The party entering the cause or questions or issues for trial shall deliver to the proper officer two copies of the whole of the pleadings, if any, and of the issues, or of such other proceedings as show the questions for trial, one of which shall be for the use of the Justice at the trial.

5. Proceedings at Trial.

Default of appearance by defendant at trial.

16. If, when a cause is called on for trial, the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.

Default of appearance by plaintiff.

17. If, when a cause is called on for trial, the defendant appears, and the plaintiff does not appear, the defendant shall be entitled to judgment dismissing the action.

Judgment by default may be set aside on terms.

18. A verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or a Justice upon such terms as are just. If the cause was set down for trial in a place where there is no District Registry, the application may be made either at the place appointed for the trial before the close of the Sittings, or afterwards at the place where the District Registry is situated.

Adjournment of trial.

19. A Justice may, at or before the trial, if he thinks it expedient for the interests of justice, postpone or adjourn a trial for such time, and to such place, and upon such terms, if any, as he thinks fit.

Nonsuit.

20. When the plaintiff at the trial fails to establish by his evidence such a case as to call for an answer from the defendant, the Court may direct judgment of nonsuit to be entered.

Effect of judgment of nonsuit.

21. A judgment of nonsuit shall not have the effect of a judgment on the merits for the defendants.

Judgment.

Further consideration.

22. The justice may, at or after a trial, direct that judgment be entered for any or either party, or may adjourn the case for further consideration, or may leave any party to move for judgment.

Entry of findings of fact on trial &c.

23. At every trial, when the officer present at the trial is not the officer by whom judgment ought to be entered, the associate shall enter all such findings of fact as the Justice directs to be entered, and the directions, if any, of the Justice as to judgment, and the certificates, if any, granted by the Justice, in a book to be kept for the purpose.

Certificate for entry of judgment.

24. If the Justice directs that any judgment be entered for any party absolutely, the certificate of the associate to that effect shall be a sufficient authority to the proper officer to enter judgment accordingly.

6. Writs of Inquiry and References as to Damages.

Writs of inquiry.

25. Writs of inquiry shall be directed to such persons as the Court or a Justice directs.

Application of Rules.

26. The provisions of Rules 9, 10, 13, and 19 of this Order shall with the necessary modifications, apply to an inquiry pursuant to a writ of inquiry.

Ascertainment of damages when a matter of calculation.

27. In any cause in which it appears to the Court or a Justice that the amount of damages sought to be recovered is substantially a matter of calculation, it shall not be necessary to issue a writ of inquiry, but the Court or a Justice may direct that the amount for which final judgment is to be entered shall be ascertained by an officer of the Court, In any such case the attendance of witnesses and the production of documents before the officer may be compelled by subpœna, and the officer may adjourn the inquiry from time to time.

The officer shall certify by endorsement upon the order by which the question is referred to him the amount of damages found by him, and shall deliver the order with the endorsement to the person entitled to the damages; and the like proceedings may thereupon be had as to entering judgment, taxation of costs, and otherwise, as upon the return to a writ of inquiry.

Damages in respect of continuing cause of action.

28. When damages are to be assessed in respect of a continuing, cause of action they shall be assessed down to the time of the assessment.

ORDER XXXIV.

Evidence.

1. Examination of Witnesses.

Request to examine witnesses.

1. The Court or a Justice may, in any case in which a request to examine witnesses may by law be issued, order that a request to examine witnesses be issued in lieu of a commission.

Order for attendance of person to produce documents.

2. The Court or a Justice may, in any cause or matter, at any stage of the proceedings order the attendance of any person before the Court or a Justice for the purpose of producing any writing or other document named in the order which the Court or Justice thinks fit to be produced: Provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial.

Disobedience to order for attendance.

3. Any person who wilfully disobeys an order requiring his attendance for the purpose of being examined or producing any document shall be deemed guilty of contempt of court, and may be dealt with accordingly.

Expenses of person ordered to attend.

4. Any person required to attend for the purpose of being examined or of producing any document shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in Court.

Refusal of witness to attend or to be sworn.

5. If any person duly summoned by subpœna to attend for examination refuses to attend, or if, having attended, he refuses to be sworn or to answer any lawful question, a certificate of the refusal, signed by the examiner, shall be filed in the Registry, and thereupon the party requiring the attendance of the witness may apply to the Court or a Justice, ex parte or on notice, for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be.

Objection by witness to questions.

6. If any witness objects to any question which is put to him before an examiner, the question, and the objection of the witness thereto, shall be taken down by the examiner and transmitted by him to the Registry, to be there filed, and the validity of the objection shall be decided by the Court or a Justice.

Costs occasioned by refusal or objection.

7. In any case under the two last preceding Rules, the Court or a Justice may order the witness to pay any costs occasioned by his refusal or objection.

Depositions to be transmitted to central office.

8. When the examination of any witness before an examiner has been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the Registry, and there filed. Any party may have a copy of the depositions, of or any part thereof, on payment of the prescribed fee.

Special report by examiner.

9. The person taking the examination of a witness may, and if need be shall, make a special report to the Court touching the examination and the conduct or absence of any witness or other person thereon, and the Court or a Justice may thereupon direct such proceedings to be taken, and may make such order, as upon the report is just.

Depositions not to be given in evidence without consent or by leave of Justice.

10. Except as by this Act otherwise provided, no deposition shall be given in evidence at the hearing or trial of a cause or matter without the consent of the party against whom it is offered, unless the Court or Justice is satisfied that the deponent is dead or beyond the jurisdiction of the Court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature to the certificate.

Oaths.

11. Any officer of the Court or other person directed to take the examination of any person may administer the necessary oaths to him.

2. Subpœnas.

Attendance witness under subpœna for examination or to produce documents.

12. Any party to a cause or matter may, subject to these Rules, by a writ of subpœna ad testificandum or subpœna duces tecum, require the attendance of any person, or the production of any document, before the Court or Justice at the hearing or trial, or on the hearing of any motion or application in the cause or matter, or before the Registrar or other officer of the Court or other person appointed to make any inquiry in the cause or matter, or before any person appointed to take any examination of witnesses.

Subpœna for attendance of witness in Chambers.

13. When a subpœna is required for the attendance of a witness for the purpose of proceedings in Chambers, the subpœna shall issue from the Registry upon a fiat of the Justice.

Subpœna for attendance before Registrar.

14. When a subpœna is required for the attendance of a witness for the purpose of proceedings before the Registrar or other officer of the Court, the subpœna shall be issued upon the direction of the Registrar or officer.

Service of subpœna.

15. The service of a subpœna shall be effected in the same manner as the service of a writ of summons in an action. The copy of a subpœna for a witness served upon him need not contain the name of any witness other than the person served.

Affidavit to prove service of subpœna.

16. Affidavits filed for the purpose of proving the service of a subpœna upon any person must state when, where, how, and by whom, the service was effected.

Within what time subpœna to be served.

17. The service of a subpœna shall be of no validity unless it is made within twelve weeks after the date of issue.

ORDER XXXV.

Affidavits.

Cross-examination of deponents.

1. The Court or a Justice may, on the application of any party order that any person whose affidavit is proposed to be read in any proceeding shall attend before the Court or Justice, or an officer of the Court, or commissioner of affidavits, for cross-examination upon the affidavit.

Title of affidavits.

2. Every affidavit shall be entitled in the cause or matter in which it is sworn, if any is then pending; but in any case in which there are more plaintiffs or defendants than one, it shall be sufficient to give the full name of the first plaintiff or defendant, respectively, adding the words “and another,” or “and others,” as the case may be and the costs occasioned by any unnecessary prolixity in the title shall be disallowed by the taxing officer.

If no cause or matter is pending, it shall not be necessary to entity the affidavit otherwise than as provided by Order 1, Rule 2.

Contents of affidavits.

3. Affidavits shall be confined to facts to which the deponent is able to depose of his own knowledge, except in the cases specially provided for by these Rules, and except in the case of affidavits used on interlocutory motions or applications, in which statements as to the belief of the deponent, giving the sources of his information and the ground of his belief, may be admitted.

Form of affidavits.

4. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and shall, as nearly as may be, be confined to a distinct portion of the subject. No costs shall be allowed for any affidavit or part of an affidavit which substantially violates this Rule.

Description and abode of deponent to be stated.

5. Every affidavit shall state the description and true place of abode of the deponent.

Jurat. Several sheets.

6. The jurat of an affidavit must state that it was signed and sworn by the deponent on the day and at the place where it was sworn. Each separate sheet must be signed by the deponent and by the person before whom the affidavit is taken, with the date and place of swearing added.

Affidavits made by two or more deponents.

7. In an affidavit made by two or more deponents the names of the several persons making the affidavit must be inserted at length in the jurat, except that if the, affidavit is sworn by all the deponents at the same time by the same officer it shall be sufficient to state that it was sworn by “both” or “all” the “above-named” deponents, using those words.

Alterations in affidavits.

8. An affidavit which has either in the body thereof or in the just any interlineation, alteration, or erasure shall not, without leave of the Court or a Justice, be read or made use of in any cause or matter

unless the interlineation or alteration, not being by erasure, is authenticated by the initials of the officer taking the affidavit, or, if the affidavit is taken in a Registry, either by his initials or by the office stamp; nor, in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialed in the margin of the affidavit by the officer taking it.

Affidavits by illiterate or blind persona.

9. When an affidavit is sworn by any person who appears to the officer before whom it is taken to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature or mark in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court or a Justice is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent.

Affirmation.

10. When a deponent does not take an oath, the form of jurat shall be varied, and the necessary alterations made so as to conform with the solemn affirmation or other declaration of the deponent.

Affidavits to be filed.

11. Every affidavit shall be filed in the Registry. A note shall be endorsed on every affidavit stating the name of the deponent and on whose behalf it is filed, and no affidavit shall, without the leave of the Court or a Justice, be filed or used without this note endorsed thereon.

Scandalous matter.

12. The Court or a Justice may order any matter which is scandalous to be struck out from any affidavit, and may order the costs of any application to strike out such matter to be paid as between solicitor and client.

Use of defective affidavit.

13. Notwithstanding anything in the preceding Rules of this Order, the Court or a Justice may receive any affidavit sworn for the purpose of being used in any cause or matter, notwithstanding any defect, by misdescription of parties or otherwise, in the title or jurat, or any other irregularity, and may direct a memorandum to be made on the affidavit that it has been so received.

Exhibits.

14. Every sheet of an annexure or exhibit to an affidavit shall be certified by the officer before whom the affidavit is taken, and signed by the deponent. Every such certificate shall be marked with the short title of the cause or matter.

Stamping of affidavits and use of office copies.

15. Before an original affidavit is allowed to be used, it shall be stamped with a filing stamp to be kept for that purpose, and, if not already filed, shall at the time when it is used be delivered to and left with the proper officer in Court or in Chambers, who shall send it to be filed. An office copy of an affidavit may be used instead of the original, the original affidavit having been previously filed, and the copy being duly authenticated with the seal of the office.

Affidavit sworn before solicitor or his agent.

16. An affidavit sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent, clerk partner, or correspondent of such solicitor, or before the party himself shall not be received.

Special times for filing affidavits.

17. When a special time is limited for filing affidavits, an affidavit filed after that time shall not be used without leave of the Court or a Justice.

Affidavits in support of ex parte applications.

18. Except by leave of the Court or a Justice, an order made ex parte in Court founded on any affidavit shall not be drawn up unless the affidavit on which the application was founded was actually made before the order was applied for, and was produced or filed at the time of making the motion.

ORDER XXXVI.

Motion for Judgment.

Motion for judgment.

1. Except when by these Rules it is provided that judgement may be obtained in any other manner, the judgment of the Court shall be obtained upon motion for judgement.

When no judgment is given at trial.

2. When at the trial of a cause the Justice does not direct any judgment to be entered, the plaintiff may set down the cause on motion for judgment. If he does not set down the cause and give notice of the setting down to the other parties within ten days after the trial any defendant may set down the cause on motion for judgment and give notice of the setting down to other parties.

Setting down motion for judgement when issues have been directed and tried.

3. When issues have been ordered to be tried, or questions or issues of fact have been ordered to be determined in any manner, the plaintiff may set down a motion for judgment as soon as such questions or issues have been determined. If he does not set down the motion, and give notice of the setting down to the other parties within ten days after his right to do so has arisen, any defendant may set down a motion for judgment, and give notice of the setting down to the other parties.

When some only of several issues directed have been tried.

4. When issues have been ordered to be tried, or questions or issues of fact have been ordered to be determined in any manner, and some only of those questions or issues of fact have been tried or determined, any party who considers that the result of that trial or determination renders the trial or determination of the other questions or issues of fact unnecessary, or renders it desirable that their trial or determination should be postponed, may, by leave of the Court or a Justice, set down a motion for judgment, without waiting for such trial or determination. And the Court or Justice may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as is just, and may give any directions which are desirable as to postponing the trial or the other questions or issues of fact.

Motion to be set down within one year.

5. A motion for judgment stall not, except by leave of the Court or a Justice, be set down after the expiration of one year from the time when the party seeking to set down the same first became entitled to do so.

Power of Court on motion for judgment.

6. Upon a motion for judgment, the Court may draw any inference of fact not inconsistent with the findings of the jury, if any, and may, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, if not so satisfied, direct the motion to stand over for further consideration, and may direct such questions or issues of fact to be tried or determined, and such accounts and inquiries to be taken and made, as are just.

ORDER XXXVII.

Motions in General.

Title of notice of motions.

1. When a motion is made upon notice in a cause or matter, the notice shall be entitled in the cause or matter. When a cause or matter is originated by notice of motion, the notice shall be entitled in the matter of the Statute under which the motion is to be made, and in the matter of the application of the applicant, naming him, for the relief sought, describing briefly the nature of such relief.

Originating notices.

2. When a cause or matter is originated by a notice of motion, a copy of the notice shall be filed before the motion is heard. In other cases a copy need not be filed.

Notice of motion to name Court.

3. A notice of motion shall state whether it is intended to be made before the Full Court or a Justice in Court, and the time and place at which it is intended to be made, and shall be signed with the name of the party intending to move, or his solicitor, if he sues or appears by a solicitor and addressed to the party to be affected by the order sought.

To be moved by counsel in order of seniority.

4. On days on which the Court sits to hear motions, they shall, unless the Court otherwise orders, be heard before the matters set down in the paper are called on for hearing, and counsel may move them in the order of their seniority.

Costs of abandoned motions.

5. If a motion of which notice has been given is not moved at the sitting of the Court for which notice was given, or at the first adjournment of that sitting at which the motion could be made, the party to whom the notice was given may, on filing an affidavit stating the facts, obtain an order for the payment to him, by the party by whom the notice was given of his costs of the motion, and such order may be drawn up and signed by the Registrar without other warrant than this Rule. But any such order may be set aside by the Court or a Justice upon sufficient cause shown.

Where notice of motion to be given Ex parte applications.

6. Except as by these rules otherwise provided, a motion or application shall not be made without previous notice to the party to be affected thereby. But the Court or a Justice, if satisfied that the delay caused by giving notice would, or might, entail irreparable or serious mischief,

may make an order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court or Justice may think just, and any party affected by any such order may move to set it aside.

Length of notice of motion.

7. Unless the Court or a Justice gives special leave to the contrary, which leave may be obtained ex parte, there must be at least two clear days between the service of a notice of motion and the day named in the notice for making the motion.

Motions may be dismissed or adjourned where necessary notice not given.

8. If, on the hearing of a motion, the Court is of opinion that any person to whom notice has not been given ought to have notice, the Court may either dismiss the motion, or may adjourn the hearing thereof, in order that such notice may be given, upon such terms, if any, as the Court may think fit.

Trial of questions of fact.

9. The Court may order that any question of fact arising upon a motion shall be tried in any manner in which any question or issue of fact in an action may be tried.

Service of notice of motion with originating proceedings.

10. A plaintiff may, without any special leave, serve any notice of motion upon any defendant along with the originating proceeding, or at any time after service of the originating proceeding, and before the time, if any, limited for the appearance of such defendant.

Service of notice.

Defendant served but not appearing.

11. A plaintiff may, without any special leave, serve any notice of motion, or any other notice, or any petition or summons, upon any defendant, who, having been duly served with the originating proceeding and required to appear, has not appeared within the time limited for that purpose.

Notice of affidavits.

12. A list of all affidavits intended to be used in support of a motion shall be served with the notice of motion, and no other affidavits shall be used, or other evidence given, by the party moving on the hearing without the leave of the Court.

When the party moving intends to adduce oral evidence on the hearing of a motion, notice of such intention shall be served with the notice of motion.

Copies of affidavits on originating motions to be served.

13. Copies of all affidavits intended to be used in support of a motion by which a cause or matter is originated shall be served with the notice of motion.

ORDER XXXVIII.

Entry of Judgments.

Mode of entry.

1. Every judgment shall be entered by the proper officer in a book kept for that purpose. The party entering the judgment shall deliver to the officer a copy of the whole of the pleadings, if any, not already filed.

Date of judgment pronounced in Court.

2. When a judgment is pronounced by the Court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the Court otherwise orders, and the judgment shall

take effect from that date: Provided that by special leave of the Court a judgment may be ante-dated or post-dated.

Date of entry of other judgments.

3. In any other case the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that date.

Time to be stated for doing any act ordered to be done.

4. Every judgment or order made in any cause or matter requiring any person to do any act thereby ordered to be done, shall state the time, or the time after service of the judgment or order, within which the act is to be done, and there shall be endorsed upon the copy of the judgment or order served upon the person required to obey the same a memorandum in the words or to the effect following, viz.:—

Memorandum be endorsed.

“If you, the within-named A.B., neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the judgment (or order).”

Judgment on production of affidavit or document.

5. When by any Statute or these Rules, or otherwise, it is provided that any judgment may be entered upon the filing of any affidavit or production of any document, the officer shall examine the affidavit or document produced; and, if the same is regular and contains all that is by law required, he shall enter judgment accordingly.

Judgment on production of order or certificate.

6. When by any Statute or these Rules, or otherwise, it is provided that any judgment may be entered pursuant to any order or certificate, or to the return of any writ, the production of such order or certificate sealed with the seal of the Court, or of such return, shall be sufficient authority to the officer to enter judgment accordingly.

Judgment on Registrar’s certificate.

7. When reference is made to the Registrar to ascertain the amount for which final judgment is to be entered, the Registrar’s certificate shall be filed in the Registry before judgment is entered.

Judgment by consent when party appears by a solicitor.

8. When a party sues or appears by solicitor, a consent order for entering judgment against such party shall not be made unless the consent of the party is given by his solicitor or the town agent of his solicitor.

Consent of party in person.

9. When the plaintiff sues in person, or the defendant has not appeared, or has appeared in person, a consent order for entering judgment against such party shall not be made unless the party attends before a Justice and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, unless the party is himself a barrister or solicitor.

Entry of satisfaction.

10. A memorandum of satisfaction of a judgment may be entered upon a consent to the entry, signed by the party entitled to the benefit of the judgment, and attested and verified by the affidavit of the attesting witness, being filed in the Registry.

If the attesting witness is not a barrister or solicitor, the approval of a Justice must be obtained, which may be endorsed on the affidavit.

ORDER XXXIX.

Drawing up Judgments and Orders.

By whom judgments and orders to be drawn up.

1. Judgments and orders, whether given or made in Court or in Chambers, or by default, shall be drawn up by the Registrar or under his direction, unless otherwise directed by the Court or a Justice.

Documents to be filed before judgment or order signed.

2. No judgment or order founded, in whole or in part, on a petition, or on affidavits, written admissions, or other written documents, shall be signed until such petition, admissions, affidavits, or other documents have been filed in the Registry.

Documents to be left with Registrar on bespeaking judgment or order.

3. At the time of bespeaking a judgment or order, the party bespeaking the same shall leave with the Registrar his counsel’s brief, if any, and such other documents as may be required by the Registrar for the purpose of enabling him to draw up the same.

Registrar may require party to submit draft.

4. The Registrar may require the party bespeaking a judgment or order to prepare a draft of the same and leave the same in the Registry for his use or assistance, and may accept the draft so prepared and left as his own draft of the judgment or order, with such alterations, if any, as he may think fit.

Time for bespeaking judgment or order.

5. Every judgment or order shall be bespoken, and the requisite documents mentioned in the last preceding Rule but one shall be left with the Registrar, within seven days after the judgment or order is finally given or made by the Court or Justice.

Where judgment or order not bespoken.

6. If any judgment or order is not bespoken, and the requisite documents are not left with the Registrar within the time prescribed by the last preceding Rule, the Registrar may decline to draw up the judgment or order without the direction of the Court or a Justice.

Appointment for settling judgment or order.

7. At the time of delivering out the draft of a judgment or order which, in the opinion of the Registrar, ought to be settled in the presence of the parties, he shall deliver out to the party on whose application the draft has been prepared an appointment in writing of a time for settling the same.

Notice of appointment to be served on opposite party.

8. A notice of the appointment shall be served on the opposite party one clear day at least before the time thereby appointed for settling the draft, and the party serving the notice and the party so served shall attend the appointment, and shall produce to the Registrar counsel’s briefs, if any, and such other documents as may be necessary to enable him to settle the draft.

Service of notice of appointment.

9. Service of the notice of appointment shall be effected by leaving it at the place of service of the party to be served, or by transmitting it by post to such party at such place for service.

Proof of service.

10. At the time appointed for settling the draft the Registrar shall satisfy himself, in such manner as he may think fit, that service of the notice of appointment has been duly effected, and for that purpose may require evidence on oath.

Appointment for passing judgment or order.

11. When the draft has been settled by the Registrar, he shall name a time in the presence of the several parties, or else deliver out an

appointment in writing of a time for passing the judgment or order; and in the latter case notice of the appointment shall be served by the party to whom the appointment is delivered on the opposite party, and the service shall be proved in the manner prescribed by the last two preceding Rules with reference to an appointment to settle the draft of a judgment or order.

Default in attending appointment with documents

12. If any party fails to attend the Registrar’s appointment for settling the draft of a judgment or order, or fails to produce his counsel’s briefs and such other documents as the Registrar may require to enable him to settle such draft, or to pass such judgment or order, the Registrar may proceed to settle the draft, or to pass the judgment or order, in his absence, and the Registrar shall be at liberty to dispense with the production of counsel’s briefs, or with the production of such documents or papers as aforesaid, and to act upon such evidence as he may think fit of the actual appearance by counsel of the party failing to attend, or may require the matter to be mentioned to the Court or a Justice.

Adjournment of appointments.

13. The Registrar may adjourn any appointment for settling the draft of a judgment or order, or for passing a judgment or order, to such time as he may think fit, and the parties who attended the appointment shall be bound to attend such appointment without further notice.

Settling and passing judgment or order without any appointment.

14. Notwithstanding the preceding Rules of this Order, the Registrar may, in any case in which he may think it expedient so to do, settle and pass any judgment or order, without making any appointment for either purpose and without notice to any party.

15. Every judgment or order when settled and passed shall be engrossed by the party having the carriage of the judgment or order.

Judgments and orders to be filed.

16. (1) Every judgment and order shall be kept in the Registry as a record.

Duplicates.

(2) A duplicate of every judgment or order shall, one clear day after the same has been entered, and in urgent cases sooner if so directed by the Registrar, be signed and sealed by the Registrar, without fee, and delivered to the party having the carriage of the judgment or order; and whenever any rule or order or the practice of the Court requires the production of a judgment or order, it shall be sufficient to produce the duplicate.

(3) A further duplicate may at any time, with the sanction of the Registrar and on payment of the prescribed fee, be issued on production of the duplicate first issued, or on the Registrar being satisfied of the loss of that duplicate, and that the person applying is properly entitled to it.

(4) A judgment or order shall not be amended except on production of the duplicate or duplicates, or the duplicate last issued, as the case may be, which shall, after the original order has been amended, be also amended in accordance therewith, under the direction of the Registrar, and the amendment in the duplicate shall be sealed under the like direction.

Certificates for special allowance.

17. The Registrar shall, if requested to do so by any party at the time of any attendance before him for the purpose of settling the draft of a judgment or order or of passing a judgment or order certify, for the information of the taxing officer, whether in his opinion any special allowance ought to be made on taxation of costs in respect of such attendance, or in respect of the preparation of the draft by any party whom he has requested to prepare the same, on the ground that the judgment or order is of a special nature, or of unusual length or difficulty.

When orders need not be drawn up.

18. When an order is made which does not embody any special terms or include any special directions, but merely gives leave to some officer of the Court other than a solicitor to do some act, or merely enlarges the time for taking some proceeding or for doing some act, or merely gives leave—

(a) To issue a writ not being a writ of attachment; or

(b) To amend any writ or other proceeding; or

(c) To enter a judgment or order nunc pro tunc; or

(d) To file any document or to take a document off the file;

or merely directs a clerical mistake or an error appearing in a judgment or order to be corrected, it shall not be necessary to draw up such order unless the Court or Justice so directs; but the production of a note or memorandum of such order, signed or initialled by the Justice or Registrar (which may be made upon any document filed in the cause or matter), shall be sufficient authority for such enlargement of time, issue, amendment, entry, filing or other act. A direction that the costs of any such order shall be costs in any cause or matter shall be deemed a special direction within the meaning of this Rule.

ORDER XL.

Relief against Judgments and Orders.

Matters arising after judgment or order.

1. When facts arise after the giving of a judgment or making of an order which entitle the person against whom the judgment or order is given or made to be relieved from it, or when facts are discovered after the giving of a judgment or making of an order which, if discovered in time, would have entitled the party against whom the judgment or order is given or made to a Judgment or decision in his favour, or to a different judgment or order, he may apply to the Court or a Justice for a stay of execution or other appropriate relief; and the Court or a Justice may grant such relief, and for that purpose may direct such proceedings to be taken, and such questions or issue of fact to be tried or determined, and such inquiries to be made, as are just.

Entry of satisfaction.

2. Any party against whom a judgment is given may apply to the Court or a Justice for an order directing entry of satisfaction of the judgment to be made, and the Court or Justice may make the order accordingly.

Procedure under this Order exclusive.

3. No proceedings shall be taken for the purpose of obtaining relief from judgments or orders on the ground of facts arising or discovered after the judgment or order, except as by this Order provided.

ORDER XLI.

Attachment and Committal.

1. General.

For performance of an act.

1. A judgment or order for the payment of money into Court, or for the performance of a judgment, order, or writ, by which any person is required to do any act other than the payment of money to some person, may be enforced by writ of attachment.

Judgment to abstain from any act.

2. A judgment or order requiring any person to abstain from doing any act may be enforced by committal.

Undertakings.

3. An undertaking to do any act other than the payment of money to some person may be enforced in the same manner as a judgment requiring a person to do an act, and an undertaking to abstain from doing an act may be enforced in the same manner as a judgment requiring a person to abstain from doing an act.

In the case of non-performance of an undertaking to pay money to any person, the Court or a Justice may make an order for payment of the money, which may be enforced in the same manner as a judgment for the recovery of money.

2. Attachment.

Application for leave to issue writ of attachment.

4. A writ of attachment shall not be issued without the leave of the Court or a Justice, to be applied for on notice to the party against whom the attachment is to be issued.

Court may make peremptory order before issue of writ.

5. In the case of non-performance of an undertaking, the Court or a Justice may, in the first instance, instead of directing the issue of a writ of attachment, make a peremptory order for the performance of the act undertaken to be done.

3. Committal.

Motion for committal.

6. Applications for committal for disobedience to a judgment or order requiring a person to abstain from doing any act shall be made by motion upon notice, which must be served personally, unless the Court or a Justice authorizes substituted service.

Order XLIX. to apply.

7. The provisions of Order XLIX. relating to committal for contempt of Court shall apply to applications for committal, and to persons committed, for disobedience to judgments or orders.

ORDER XLII.

Actions by and against Firms and Persons carrying on Business in Names other, than their own.

Actions by and against firms within the Commonwealth.

1. Any two or more persons claiming or being liable as partners and carrying on business within the Commonwealth may sue or be sued in the name of the respective firms, if any, of which they were partners at the time of the accruing of the cause of action.

Disclosure of partners’ names.

2. When partners sue in the name of their firm, the plaintiffs or their solicitor shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm in whose name the action is

brought; and if the plaintiffs or their solicitor fail to comply with the demand, all proceedings in the action may be stayed upon such terms as the Court or a Justice directs.

Action to continue in name of firm.

3. When the names of the partners are declared, the action shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as the plaintiffs in the originating proceeding. But all the proceedings shall, nevertheless, continue in the name of the firm.

Order for disclosure.

4. In any case in which partners sue or are sued in the name of their firm under Rule 1 of this Order, any party to the cause may apply to a Justice for an order directing that a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in the firm, shall be furnished in such manner, and verified on oath or otherwise, as the Justice directs.

Service.

5. When persons are sued as partners in the name of their firm under Rule 1 of this Order, the originating proceeding shall be served either upon some one or more of the partners, or at the principal place, within the Commonwealth, of the business of the partnership upon some person having at the time of service the control or management of the partnership business there; and, subject to these Rules, such service shall be deemed good service upon the firm whether any of the members thereof are beyond the Commonwealth or not. Provided that in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the commencement of the action, the originating proceeding shall be served upon every person within the Commonwealth sought to be made liable.

Notice in what capacity served.

6. When persons are sued as partners, and the originating proceeding is served as directed by the last preceding Rule, there shall be delivered with it to every person upon whom it is served a notice in writing stating whether he is served as a partner or as a person having the control or management of the partnership business, or in both character. In the absence of such notice, the person served shall be deemed to be served as a partner.

Appearance of partners.

7. When persons are sued as partners in the name of their firm, they shall appear individually in their own names; but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

No appearance except by partners.

8. When a writ is served under Rule 5 of this Order upon a person having the control or management of the partnership business, an appearance by him shall not be necessary unless he is a member of the firm sued.

Appearance under protest of person served as partner.

9. Any person served as a partner under Rule 5 of this Order may enter a conditional appearance, denying that he is a partner, but such appearance shall not preclude the plaintiff from duly serving the firm otherwise than by service upon him, and obtaining judgment against the firm in default of appearance if no partner enters an appearance in the ordinary form.

Execution of judgment against a firm.

10. When a judgment or order is given or made against a firm execution may issue:—

(a) Against any property of the partnership within the Commonwealth;

(b) Against any person who has appeared in the action in his own name, or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;

(c) Against any person who has been individually served, as a partner, with the writ of summons, and has failed to appear.

If the party who has obtained the judgment or order claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the Court or a Justice for leave so to do; and the Court or Justice may give such leave if the liability of the other person is not disputed, or, if such liability is disputed, may order that the liability of that person be tried in any manner in which any question or issue of fact in an action may be tried.

But, except as against any property of the partnership, a judgment against a firm shall not render liable, or release, or otherwise affect, any member thereof who was beyond the Commonwealth when the cause was commenced, and who has not appeared in the cause, unless he has been served within the Commonwealth with the originating proceeding, or the plaintiff has obtained liberty to proceed in the action against him under Order IX.

Application of Rules to action between co-partners.

11. This Order shall apply to actions between a firm and one or more of its members, and to actions between firms having one or more members in common, provided that the firm or firms carry on business within the Commonwealth. But execution shall not be issued in such actions without leave of the Court or a Justice, and on an application for leave to issue execution all such accounts and inquiries may be directed to be taken and made, and directions given, as are just.

Application of Rules to person trading as a firm.

12. Any person carrying on business within the Commonwealth in a name or style other than his own name may be sued in that name or style as if it were a firm name; and, so far as the nature of the case will permit, all the Rules of this Order relating to proceedings against firms shall apply to any such case.

ORDER XLII.a.

The Admiralty Rules: Practice in Admiralty Actions.

1. Except as by this Order otherwise provided the Rules of the Court relating to the procedure of the Court in its original jurisdiction shall so far as they are respectively applicable apply to Admiralty actions.

1. General.

Admiralty Action.

2. The term “Admiralty Action” means any action, cause, suit, or other proceeding instituted in the Court in the exercise of the jurisdiction conferred on it by the Colonial Courts of Admiralty Act 1890 and the Judiciary Act 1914.

To be commenced by writ of summons.

Title of action.

3. Admiralty actions shall be commenced by writ of summons. Every such action shall be entitled “In the High Court of Australia in Admiralty.” The title “Emperor of India” shall be added to the titles of the Sovereign.

Admiralty actions for wages.

4. In Admiralty actions for seamen’s or master’s wages, two or more persons claiming relief against the same person or property may be joined as plaintiffs.

Crown Admiralty actions.

5. Actions for condemnation of any ship, boat, cargo, proceeds, slaves, or effects, or for recovery of any pecuniary forfeiture or penalty, shall be instituted in the name of the King.

Titles of actions in personam.

6. In an Admiralty action in personam the defendants may be described as the owners of the ship instead of by their personal names.

Forms of description of res.

7. In Admiralty actions in rem the description of the res shall be such one of the forms following, as may be applicable, with such variations as circumstances may require, that is to say:—

(a) The ship      ;

or (b) The ship     and freight;

or (c) The ship     her cargo and freight;

or (if the action is against cargo only),

(d) The cargo ex the ship (state the name of ship on board of which the cargo now is or lately was laden);

or (if the action is against the proceeds realized by the sale of the ship or cargo),

(e) The proceeds of the ship;

or (f) The proceeds of the cargo ex the ship

(or as the case may be).

Endorsement of claim.

8. The endorsement of claim on the writ shall be in such one of the forms in the Schedule to this Order as may be applicable.(1)

Account in certain Admiralty actions.

9. In Admiralty actions for seamen’s or master’s wages, or for master’s wages and disbursements or for necessaries, or for bottomry, or any other Admiralty action in which the plaintiff desires an account, the endorsement on the writ may include a claim to have an account taken.

Seaman not to give security in action for wages, &c.

10. A seaman suing in an Admiralty action for his wages or for the loss of his goods or clothes in a collision shall not be required to give security for costs.

2. Arrest of Property.

Arrest in Admiralty actions by warrant after affidavit.

11. In Admiralty actions in rem a warrant for the arrest of property which shall be in the Form in the Schedule, with such variations as circumstances may require, may be issued by the Registrar at the instance either of the plaintiff or the defendant, at any time after the writ of summons has been issued. But, except by leave of the Court or a Justice, a warrant of arrest shall not be issued until an affidavit by the party or his agent setting forth the particulars hereby prescribed has been filed, and the following provisions have been complied with that is to say:—

(a) The affidavit shall state the name and description of the party at whose instance the warrant is to be issued, and the nature of the property to be arrested and that the claim or counter claim has not been satisfied, and that the aid of the Court is required to enforce it;

(b) In an action for wages or of possession the affidavit shall state the national character of the ship, and, if the ship is foreign, that notice of the action has been served upon a consular officer of the State to which the ship belongs if there is one resident in the place of the Registry is which the writ of summons is issued.

(1) The forms in the Schedule referred to in this Rule are reproduced in the Appendix to these Rules. See No. 11 in such Appendix.

(c) In an action for necessaries the affidavit shall state the national character of the ship, the port to which the ship belongs, and that to the best of the deponent’s belief, no owner or part owner of the ship is domiciled in the Commonwealth at the time of the commencement of the action;

(d) In an action between co-owners relating to the ownership, possession, employment, or earnings of a ship registered in the Commonwealth, the affidavit shall state the port at which the ship is registered and the number of shares in the ship owned by the party proceeding;

(e) In an action of bottomry, the bottomry bond, and, if it is in a foreign language, also a notarial translation thereof, shall be produced for the inspection and perusal of the Registrar, and a copy of the bond, or of the translation thereof, certified to be correct, shall be annexed to the affidavit.

Arrest without affidavit by leave.

12. The Court or a Justice may in any case, if they or he think fit, allow the warrant to issue, although the affidavit in the last preceding Rule mentioned may not contain all the prescribed particulars. The Court or a Justice may also, in an action for wages against a foreign ship, dispense with the service of the notice, and, in an action of bottomry, with the production of the bond.

3. Service and Arrest.

Service when dispensed with in Admiralty actions in rem.

13. In Admiralty actions in rem, service of the writ of summons or warrant of arrest shall not be required when the defendant or his solicitor agrees to enter an appearance and put in bail, or pay money into Court in lieu of bail.

Service of warrant of arrest in Admiralty actions.

14. In Admiralty actions in rem the writ of summons and warrant of arrest shall be served by the Marshal or his officer, and the party issuing the warrant shall, within six days from the service thereof, file the same in the Registry with a certificate of service endorsed thereon.

Mode of service of writ of summons in rem and warrants.

15. In Admiralty actions in rem, the service of a writ of summons in rem, or warrant against a ship, freight, cargo, or other property, is to be effected as follows:—

(a) Upon a ship, or upon freight, cargo, or other property if the cargo or other property is on board the ship, by nailing or affixing the original writ or warrant for a short time on the main mast or on the single mast of the ship, or on some other conspicuous part of the vessel, and on taking off the process leaving a true copy of it nailed or affixed in its place;

(b) Upon freight, cargo, or other property if the cargo or other property is not on board a vessel, by placing the original writ of summons or warrant for a short time on the cargo or property and on taking off the process leaving a true copy of it thereon;

(c) Upon freight in the hands of any person, by showing the original writ or warrant to him, and leaving with him a true copy of it.

(d) Upon proceeds in Court by showing the original writ to the Registrar, and leaving with him a copy of it, which service shall be a sufficient arrest of the proceeds.

When no access to property.

16. If access cannot be obtained to the property on which the writ or warrant is to be served the service may be made by showing it to the person appearing to be in charge of the property and leaving with him a copy of it and also publishing a copy in some newspaper ordinarily circulating in the locality where the property is.

4. Appearance.

Solicitor not entering appearance.

17. A solicitor who fails to enter an appearance in pursuance of his written undertaking so to do, or who fails to put in security in an Admiralty action in rem, in pursuance of a like undertaking, shall be liable to attachment.

5. Pleadings. Discontinuance.

Delivery of statement of claim in Admiralty actions in rem.

18. In Admiralty actions in rem, the plaintiff shall, if required to deliver a statement of claim, and unless otherwise ordered by the Court or a Justice, deliver his statement of claim within twelve days from the entry of appearance by the defendant.

Extension or shortening of time.

19. In Admiralty actions the Court or a Justice may extend or shorten the time for pleading to any pleading of the opposite party.

Effect of discontinuance on consolidated actions.

20. The discontinuance of an Admiralty action by the plaintiff shall not prejudice any action consolidated with it.

6. Caveats and Releases in Admiralty Actions.

Caveat against warrant to arrest.

21. A party desiring to prevent the arrest of any property may cause a caveat against the issue of a warrant for the arrest thereof to be entered in the Registry.

Caveat Warrant Book.

22. For the purpose in the last preceding Rule mentioned, the party shall cause to be filed in the Registry a notice, signed by himself or his solicitor, undertaking to enter an appearance in any action that may be commenced against the property, and to give security in such action in a sum not exceeding an amount to be stated in the notice, or to pay such sum into Court; and a caveat against the issue of a warrant for the arrest of the property shall thereupon be entered in a book to be kept in the Registry, called the Caveat Warrant Book.

Writ to be served on party entering caveat.

23. A plaintiff commencing an action against any property in respect of which a caveat has been entered in the Caveat Warrant Book shall forthwith serve a copy of the writ upon the party on whose behalf the caveat has been entered, or upon his solicitor.

Security to be given within three days.

24. The party on whose behalf the caveat has been entered shall, if the sum in respect of which the action is commenced does not exceed the amount for which he has undertaken, give security in such sum within three days from the service of the writ.

If security not given, action may proceed as on default.

25. After the expiration of twelve days from the filing of the notice in Rule 22 of this Order mentioned, if the party on whose behalf the caveat has been entered has not, within three days from the service of the writ, given security as required by the last preceding Rule the plaintiff may proceed with the action as upon default of appearance.

Judgment may be enforced by attachment and warrant.

26. If, when the action comes before the Court, the Court is satisfied that the claim is well founded, it may pronounce for the amount which appears to be due, and may enforce payment thereof by attachment against the party on whose behalf the caveat has been entered, as well as by the arrest of the property, if it then is, or thereafter comes, within the jurisdiction of the Court.

Release.

27. Property arrested by warrant in Admiralty actions shall not be released except under the authority of an instrument issued from the Registry, to be called a release.

Caveat against release.

28. A party desiring to prevent the release of any property under arrest, shall file in the Registry a notice, and thereupon a caveat against the release of the property shall be entered in a book, to be kept in the Registry, called the Caveat Release Book.

Payment into Court.

29. Except as hereinafter provided, a party may obtain the release of any property by paying into Court the sum in respect of which the action has been commenced, or giving security for the like sum.

Release of cargo arrested for freight only.

30. Cargo, arrested for freight only, may be released by filing an affidavit as to the value of the freight, and by paying the amount of the freight into Court, or upon an order of the Court or a Justice upon proof that the freight has already been paid.

In salvage actions.

31. In an action for salvage, the value of the property under arrest shall be agreed, or an affidavit of value filed, before the property is released, unless the Court or a Justice otherwise orders.

On giving security.

32. A party who has given security in the sum in respect of which the action has been commenced, or paid such sum into Court, and if the action is one of salvage, has also filed an affidavit as to the value of the property arrested, shall be entitled to a release for the same, unless a caveat against the release is outstanding in the Caveat Release Book.

On consent or discontinuance or dismissal of action.

33. A release may also be issued by the Registrar, unless there is a caveat outstanding in the Caveat Release Book, on a consent in writing being filed, signed by the party at whose instance the property has been arrested, or on discontinuance or dismissal of the action in which the property has been arrested.

To be left with Marshal.

34. The release, when obtained, shall be left with the Marshal by the party taking it out, who shall also at the same time pay all costs, charges, and expenses attending the care and custody of the property while under arrest; and the property shall thereupon be released.

Registrar may require Justice’s order.

35. The Registrar may refuse to issue a release without the order of a Justice.

Liability for delaying release.

36. A party delaying the release of any property by the entry of a caveat shall be liable to be condemned in the costs and damages occasioned thereby, unless he shows to the satisfaction of the Court or a Justice good and sufficient reason for having done so.

Arrest notwithstanding caveat.

37. Nothing in these Rules shall prevent a solicitor from taking out a warrant for the arrest of any property, notwithstanding the entry of a caveat in the Caveat Warrant Book; but the party at whose instance any property in respect of which the caveat was entered has been arrested shall be liable to have the warrant discharged and to be condemned in costs and damages, unless he shows to the satisfaction of the Court or Justice good and sufficient reason for having so done.

Caveat Payment Book.

38. A book shall be kept in the Registry, called the Caveat Payment Book, in which caveats shall be entered against the payment of money out of Court in Admiralty actions.

Caveat against payment out of Court.

39. A person desiring to prevent the payment of money out of Court in an Admiralty action must file a notice objecting to the payment, and thereupon a caveat shall be entered in the Caveat Payment Book.

1539/27.—3

Liability for delaying payment.

40. The party at whose instance a caveat payment is entered shall be liable to be condemned in the costs and damages occasioned thereby, unless he shows to the satisfaction of the Court or Justice good and sufficient reason for entering the caveat.

Address of caveator.

41. If the person entering a caveat is not a party to the action, the notice shall state his name and address, and an address within one mile of the Registry, at which it shall be sufficient to leave all documents required to be served upon him.

Withdrawal of caveats.

42. A caveat may at any time be withdrawn by the person at whose instance it has been filed, on his filing a notice withdrawing it.

Caveats may be overruled.

43. The Court or a Justice may set aside any caveat.

7. Trial

Mode of trial.

44. Admiralty actions shall be tried by a Justice without a jury.

Entry of cause for trial.

45. Notice of trial shall be given before entering the cause or questions or issues for trial; and a cause may be entered for trial, notwithstanding that the pleadings are not closed, provided that notice of trial has been given.

Avoidance of notice of trial.

46. The entry must be made within six days after notice of trial is given; otherwise the notice of trial shall cease to have effect.

Entry for trial by party served with notice.

47. If the party giving notice of trial omits to enter the cause of: issues for trial on the day or the day after giving notice of trial, the party to whom notice has been given may, within four days thereafter, enter the same for trial unless in the meantime the notice has been countermanded.

Trial in default of appearance.

48. In an Admiralty action, if no appearance has been entered, the plaintiff may, at any time after the time limited for appearance, apply to a Justice for leave to enter the action for trial ex parte.

In default of pleading.

49. In an Admiralty action, if an appearance has been entered, either party may give notice of trial and enter the action for trial as soon as the last pleading has been delivered, or as soon as the time allowed to the opposite party for delivering any pleading has expired without such pleading having been delivered.

Appointment of early day for trial in Admiralty actions.

50. In Admiralty actions either party may, at any stage of the proceedings, apply to the Court or a Justice for an Order that the trial shall take place on an early day to be appointed by the Court or Justice; and on such application the Court or Justice may appoint that the trial shall take place on any day or within any time which the Court or Justice may think fit; and for such purpose may dispense with giving notice of trial, or may abridge the time or times appoint by these Rules for giving notice of trial or for the delivery of pleading, or for doing any other act or taking any other proceedings in the action upon such terms, if any, as may be just.

In case of accounts.

51. In an Admiralty action in rem, if the writ of summons has been endorsed with a claim to have an account taken, or if the liability has been admitted or determined and the question is simply as to the amount due, the Justice may, on the application of either party, fix a time

within, which the accounts and vouchers, and the proofs in support thereof, shall be filed, and at the expiration of that time either party may give notice of trial and enter the action for trial.

Copies of pleadings, &c., to be delivered.

52. The party entering the cause or questions or issues for trial shall deliver to the proper officer two copies of the whole of the pleadings, if any, and of the issues, or of such other proceedings as show the questions for trial, one of which shall be for the use of the Justice at the trial.

Proof on trial in default of appearance in actions in rem.

53. Upon the trial of an Admiralty action in rem upon default of appearance, the claim must be proved to the satisfaction of the Court.

Affidavit evidence in Admiralty references.

54. In default actions in rem, and in references in Admiralty actions evidence may be given by affidavit.

Payment out of Court to be on order only.

55. Money paid into Court in an Admiralty action shall not be paid out of Court except in pursuance of an order of the Court or a Justice.

Tender to be accompanied by payment into Court.

56. In an Admiralty action a party desiring to make a tender in satisfaction of the whole or any part of the adverse party’s claim shall pay into Court the amount tendered by him, and shall file a notice of the terms on which the tender is made.

Acceptance or rejection of tender.

57. Within eight days after the filing of the notice, the adverse party shall file a notice stating whether he accepts or rejects the render, and if he does not do so, he shall be deemed to have rejected it.

Suspension of proceedings.

58. Pending the acceptance or rejection of a tender, the proceedings in the action shall be suspended.

8. Motions.

Copies of affidavits to be served.

59. In Admiralty actions, a copy of every affidavit intended to be used on the motion shall be served with the notice of motion.

9. References to the Registrar.

Application of Rules.

60. The following thirteen Rules of this Order shall apply to references to the Registrar, whether the reference is to the Registrar alone, or to the Registrar assisted by a merchant or merchants.

Reference to Registrar and merchants.

61. The Court or a Justice may refer the assessment of damages and the taking of an account to the Registrar, either alone or assisted by a merchant or merchants.

Filing of claim and affidavits.

62. Within twelve days from the day when the order for the reference is made, the claimant shall file his claim and his affidavits verifying the same; and within twelve days from the day when the claim and affidavits are filed, the adverse party shall file his counter affidavits.

Filing of further affidavits.

63. After the filing of the counter affidavits, six days shall be allowed to either party for filing further affidavits, and after that period no further affidavits shall be filed, unless by order of the Court or a Justice, or by permission of the Registrar.

Time for hearing.

64. Within three days from the expiration of the time allowed for filing the last affidavits, the claimant shall file in the Registry a notice praying to have the reference set down for hearing, and if he does not do so, the adverse party may apply to the Court or a Justice to have the claim dismissed with costs.

Hearing.

65. At the time appointed for the reference, if either party is present the reference may be proceeded with; but the Registrar may adjourn the reference from time to time as he may deem proper.

Witnesses.

68. Witnesses may be produced before the Registrar for examination and the evidence may, on the application of either party, but at the expense in the first instance of the party on whose behalf the application is made, be taken down by a shorthand writer or reporter appointed by the Justice, who shall be sworn faithfully to report the evidence; and a transcript of the shorthand writer’s or reporter’s notes, certified by him to be correct, shall be admitted to prove the oral evidence of the witnesses on an objection to the Registrar’s report.

Counsel.

67. Counsel may attend the hearing of any reference, but the expenses attending the employment of counsel shall not be allowed on taxation, unless the Registrar is of opinion that the attendance of counsel was necessary.

Report by Registrar.

63. When a reference has been heard, the Registrar shall make a report in writing of the result in the form of a certificate, showing the amount, if any found due, and to whom, together with any further particulars that may be necessary.

Costs.

69. The Registrar may, if he thinks fit, report whether any and what part of the costs of the reference shall be allowed, and to whom.

Notice to parties.

70. When the report is ready, notice shall be sent to the parties, and either party may thereupon take up and file the report.

Motion to vary.

71. Within two weeks from the date of the filing of the Registrar’s report, either party may give notice of motion to vary the report specifying the items objected to.

Order thereon.

72. At the hearing of the motion the Justice may make such order thereon as he thinks just, or may remit the matter to the Registry for further inquiry or report.

Confirmation if no motion to vary.

73. If a notice of motion to vary the report is not filed within two weeks from the date of the filing of the Registrar’s report, the report shall stand confirmed.

10. Appraisement or Sale.

Appraisement.

74. In Admiralty actions the Court or a Justice may, either before or after final judgment, order any property under the arrest of the Court to be appraised, or to be sold without appraisement, and either by public auction or by private contract.

Sale of perishable property.

75. If the property is deteriorating in value, the Court or a Justice may order it to be sold forthwith.

Without commission in certain cases.

76. If the property to be sold is of small value, the Court or a Justice may, if they or he think fit, order it to be sold without a commission of sale being issued.

Removal of property.

77. The Court or a Justice may, either before or after final judgment, order any property under arrest of the Court to be removed, or any cargo under arrest on board ship to be discharged.

Commissions.

78. The appraisement, sale, and removal of property, the discharge of cargo, and the demolition and sale of a vessel condemned under any Slave Trade Act, shall, except as provided by Rule 76 of this Order, be effected under the authority of a commission which, unless the Court or a Justice otherwise orders, shall be addressed to the Marshal, and executed by the Marshal or his officers.

Return of commissions.

79. The commission shall, as soon as possible after its execution, be filed by the Marshal, with a return setting forth the manner in which it has been executed.

Gross proceeds of sale to be paid into Court.

80. The Marshal shall pay into Court the gross proceeds of sale of any property which has been sold by him, and shall at the same time bring into the Registry the account of sale, with vouchers in support thereof, for taxation by the Taxing Officer, who shall proceed to tax the same.

Taxation of Marshal’s expenses.

81. Any person interested in the proceeds may be heard before the Taxing Officer on the taxation of the Marshal’s account of expenses, and an objection to the taxation shall be heard in the same manner as an objection to the taxation of a solicitor’s bill of costs.

11. Books, &c.

Minute Book.

82. There shall be kept in the Registry a separate book, to be called the “Admiralty Minute Book,” in which the Registrar shall enter in order of date, under the head of each Admiralty action, and on a page numbered with the number of the action, a record of the commencement of the action of all appearances entered, all documents issued or filed, all acts done, and all judgments and orders made in the action, whether made by the Court or a Justice or by consent of the parties.

Inspection of Minute and Caveat Boots.

83. Any solicitor may, free of charge, inspect the Admiralty Minute Book, the Caveat Warrant Book, the Caveat Release Book, or Caveat Payment Book.

Inspection of records.

84. The parties to an Admiralty action may, while the action is pending, and for one year after its termination, inspect, free of charge, all the records in the action.

By whom to be made.

85. Except as provided by the two last preceding Rules, no person shall be entitled to inspect the records in a pending Admiralty action without the permission of the Registrar.

After action terminated.

86. In an Admiralty action which is terminated any person may, on payment of the prescribed fee, inspect the records in the action.

12. Service of Process by Marshal.

To be left with Marshal with written instructions.

87. Every instrument to be served or executed by the Marshal shall be left with the Marshal by the party at whose instance it is issued, with written instructions for the service or execution thereof.

Verification of service or execution.

88. The service or execution of any instrument by the Marshal on his officer shall be sufficiently proved by his return, which shall state by whom the warrant has been served or executed, and the date and mode of service or execution, and shall be signed by the Marshal. When any instrument issued in an Admiralty action is served by any other person, the service shall be proved by affidavit.

13. Time.

Duration of caveat in Admiralty actions.

89. In Admiralty actions a caveat, whether against the issue of a warrant, the release of property, or the payment of money out of Court, shall not remain in force for more than six months from the date thereof.

Time for service in Admiralty actions.

90. In Admiralty actions every instrument requiring to be served shall be served within twelve months from the date on which it bears date; otherwise the service shall be of no effect.

14. Costs.

Costs of excessive claims in Admiralty action.

91. In an Admiralty action a party claiming an excessive amount, either by way of claim or of set-off or counter-claim, may be ordered to pay all costs and damages occasioned by the excess.

Tender improperly rejected in Admiralty action.

92. In an Admiralty action, if a tender is rejected, but is afterwards accepted, or is held by the Court to be sufficient, the party rejecting the tender shall, unless the Court otherwise orders, pay all the cost incurred after the tender is made.

Costs in small Admiralty cases.

93. When the sum in dispute in an Admiralty action does not exceed £50, or the value of the res does not exceed £100, one-half only of the ordinary costs on the lower scale shall be allowed. When costs are awarded to a plaintiff, the expression “sum in dispute” means the sum recovered by him in addition to the sum, if any, counter-claimed from him by the defendant; and, when costs are awarded to a defendant, it means the sum claimed from him, in addition to the sum, if any, recovered by him.

Half costs in Admiralty actions.

94. The Court or a Justice may, in any Admiralty action, order the half costs only shall be allowed.

ORDER XLIII.

Inspection of Property: Interim Preservation, Custody, and Management of Property: Receivers: Stop Orders.

1. Interim Preservation, Custody, and Management of Property.

Inspection, detention, or preservation of property the subject of an action.

1. The Court or a Justice may, upon the application of any party to a cause or matter, and upon such terms as are just, make any order that is necessary for the inspection, detention, or preservation of any property or thing, being the subject-matter of the litigation, or as to which any question may arise therein, and for any such purposes may authorize any person to enter upon or into any land or building in the possession of any party to the cause or matter, and for any such purposes may authorize any samples to be taken, or any observation to be made or experiment to be tried, which is necessary or expedient for the purpose of obtaining full information or evidence.

Inspection by Justice.

2. Any Justice by whom any cause or matter is heard or tried with or without a jury, or before whom any cause or matter is brought by way of appeal, may inspect any property or thing concerning which any question arises therein.

Inspection by jury.

3. The provisions of Rule 1 of this Order as to inspection shall apply to inspection by a jury, and in that case the Court or a Justice may make all such orders upon the Marshal or other proper officer as are necessary to procure the attendance of the jury at such time and place, and in such manner as the Court or Justice thinks fit.

The Court or Justice shall by the order make such provision as to defraying the expenses of the inspection as is just.

Preservation or interim custody of subject-matter of disputed contract.

4. When a prima facie case of liability under a contract is established, the Court or a Justice may make an order for the preservation or interim custody of the subject-matter of the litigation, notwithstanding that there is alleged as matter of defence a right to be relieved wholly or partially from the liability; or may order that the amount in dispute be brought into Court or otherwise secured.

Application, when and how made.

5. An application for an order under the last preceding Rule may be made by the plaintiff at any time; and may be made upon the pleadings, if his right appears by the pleadings; or, if there are no pleadings, upon proof of the facts by affidavit or otherwise to the satisfaction of the Court or a Justice.

Order for sale of perishable goods, &c.

6. The Court or a Justice may, on the application of any party to a cause or matter, make an order for the sale, by any persons named in the order, and in such manner, and on such terms as the Court or Justice thinks desirable, of any goods, wares, or merchandise being the subject of the cause or matter, or as to which any question arises therein, which are of a perishable nature or likely to be injured by keeping them, or which for any other just and sufficient reason it is desirable to have sold at once.

Applications for injunction or receiver or for Order under Rule 1 or 6.

7. An application for an injunction or receiver, or for an order under Rule 1 or Rule 6 of this Order, may be made to the Court or a Justice by any party. An application for an injunction or receiver may be made either ex parte or upon notice. An application for an order under Rule 1 or Rule 6 may be made upon notice to the opposite party at any time after the commencement of the cause, and, if the party making the application is not the plaintiff, after appearance by him.

Early trial of cause.

8. When an application is made before trial for an injunction or other order, and it appears to the Court or Justice that the matter in controversy in the cause can be most conveniently dealt with by an early trial, without first going into the whole merits on affidavit or other evidence for the purposes of the application, the Court or Justice may, subject to the right of either party to demand a jury, make an order for such trial accordingly, and may direct the trial to be had at any time or place, and in any manner in which a cause may be tried, and in the meantime may make such order as the justice of the case requires.

Order for recovery of specific property other than land, subject to lien, &c.

9. When an action is brought to recover specific property other than land, and it appears from the pleadings, or, if there are no pleadings, it is made to appear, by affidavit or otherwise, to the satisfaction of the Court or a Justice, that the party from whom recovery is sought does not dispute the title of the party seeking to recover the property, but claims to retain it by virtue of a lien, or otherwise as security for any sum of money, the Court or a Justice may at any time order that the party claiming to recover the property be at liberty to pay into Court, to abide the event of the action, the amount of money in respect

of which the lien or security is claimed, and such further sum, if any, for interest and costs as the Court or Justice directs, and that, upon such payment into Court being made, the property claimed shall be given up to the party claiming it.

Injunction against repetition of wrongful act or breach of contract.

10. In any action in which an injunction has been or might have been claimed, the plaintiff may, before or after judgment, apply for an injunction to restrain the defendant or respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the commission of any injury or breach of contract of a like kind relating to the same property or right, or arising out of the same contract; and the Court or a Justice may grant the injunction, either upon or without terms, as may be just.

Damages for injunction wrongly granted.

11. Every interlocutory order for an injunction shall contain an undertaking by the party at whose instance it is granted to pay to the opposite party any damages which such opposite party may sustain by reason of the injunction, and which the Court or Justice thinks he ought to pay.

An application for an order for payment of such damages shall be made by motion, and the damages may be ordered to be assessed in any manner in which damages may be assessed in an action.

2. Receivers.

Receivers—Security by and allowance to.

Form of security.

12. When an order is made directing a receiver to be appointed, the person to be appointed shall, unless otherwise ordered, first give security, to be approved by the Court or Justice, and taken before the Registrar or a commissioner for affidavits, duly to account for what he shall receive as such receiver, and to pay the same as the Court or Justice shall direct; and the person so to be appointed shall, unless otherwise ordered, be allowed a proper salary or allowance.

Where receiver appointed in Court.

Adjournment into Chambers to give security

13. When a judgment or order is pronounced or made in Court by which a person therein named is appointed to be receiver, the Court may adjourn the cause or matter to Chambers, in order that the person named as receiver may give security as in the last preceding Rule mentioned, and may thereupon direct such judgment or order to be drawn up.

3. Stop Orders.

Order to prevent transfer or payment without notice to applicant.

14. Any person claiming to be entitled to or to have a charge upon any moneys or securities standing to the credit of a cause or matter in Court may apply to the Court or a Justice for an order to prevent the payment or transfer thereof to any person without notice to him.

Mode of application.

15. Notice of the application must be given, to the persons interested in such parts of the moneys or securities as are sought to be affected by the order asked for, but need not be given to the parties to the cause or matter or any other persons, unless they are so interested.

Costs.

16. The costs of and occasioned by any such application or order shall be in the discretion of the Court or Justice.

ORDER XLIV.

Staying Proceedings.

General authority to stay.

1. The Court or a Justice may, at any time after the institution of any cause or matter, direct a stay of proceedings, either as to the whole cause or matter, or as to any proceedings therein, or as to any proceedings under a judgment or order given or made therein.

Stay of proceedings on ground of abuse of procedure.

2. An application to stay proceedings on the ground that there is no reasonable or probable cause of action or suit, or that the action or suit or proceeding is vexatious and oppressive, or is an abuse of the procedure of the Court, may be made at any time, and whether the plaintiff does or does not admit the allegations of fact, if any, on which the application is founded.

Stay of proceedings.

3. The Court or a Justice may stay the proceedings in any cause or matter improperly instituted in the name of any person by a next friend.

Withdrawing juror.

4. When at the trial of a cause before a Justice with a jury a juror is withdrawn with the consent of the parties, the withdrawal shall have the effect of an order by consent for the staying of all proceedings in the cause or matter, except so far as the Court at the time of the withdrawal, and with the consent of the parties, otherwise orders.

Staying action until costs paid.

5. When an action is discontinued or dismissed for want of prosecution, or judgment of nonsuit is entered, if, before payment of the costs, a subsequent action is brought for the same, or substantially the same, cause of action, the Court or a Justice may order that proceedings in the subsequent action shall be stayed until such costs have been paid.

ORDER XLV.

Consolidation.

Consolidation of causes or matters.

1. Causes or matters in the Court may be consolidated by order of the Court or a Justice if it appears that substantially the same question is involved in all the causes or matters, or that the decision in one cause or matter will determine the others. The application may be made by any person who is a party to two or more of the causes or matters.

ORDER XLVI.

Chambers.

1. Jurisdiction in Chambers.

General jurisdiction.

1. The following matters may be heard and determined by a Justice in Chambers, that is to say:—

(1) Any application which by any Act or by Rules of Court is authorized to be made to a Justice, and is not specifically required to be made to a Justice in Court;

(2) Applications for payment or transfer to any person of any money or securities standing to the credit of any cause or matter where there has been a judgment or order declaring the rights of the applicant, or where the title of the applicant depends only upon proof of the identity, or of the birth, marriage, or death, of particular persons;

(3) Applications for payment or transfer to any person of any money or securities standing to the credit of a cause or matter, when the nominal amount or value of either the money or the securities proposed to be dealt with does not exceed £500, exclusive of interest;

(4) Applications for payment to any person of the interest or dividends on any money or securities standing to the credit of a cause or matter, whether to a separate account or otherwise;

(5) Applications relating to the investment or disposition of money or securities in Court;

(6) Applications for orders on the further consideration of any cause or matter, when the order to be made is for the distribution of any fund or property;

(7) Applications in a cause or matter for or relating to the sale of property by auction or private contract, and as to the manner in which the sale is to be conducted, and for payment into Court and investment of the purchase money;

(8) Applications for directions as to the management of any property under the control of the Court.

2. Procedure in General.

Applications to be made by summons unless ex parte.

2. Every application made to a Justice in Chambers shall, except as hereinafter mentioned, be made by summons, signed by a Justice or the Registrar or other proper officer, and sealed with the office seal. The summons must be served on the opposite party.

Certain ex parte applications to be by summons.

3. Every application for payment or transfer of money or securities out of Court made ex parte shall be made by summons.

Ex parte applications in general.

4. Other ex parte applications in a pending cause or matter, any applications for orders nisi, may be made without summons. But the Justice may, upon any application made ex parte, require a summons to be taken out, or a memorandum of the order asked for to be filed.

Service of summons.

5. Every summons shall be served two clear days before the return day thereof, unless the Court or a Justice allows a shorter period of service.

Provided that a summons for time only may be served on the day previous to the return thereof, and that a summons signed by a Justice may be made returnable at any time.

No stay unless so ordered by a Justice.

6. A summons shall not operate as a stay of proceedings unless stay is included therein by order of a Justice.

What matters to be included in the same summons.

7. Any party making an application at Chambers in a cause or matter may include in one and the same summons all matters upon which he then desires the order or directions of the Justice in the cause or matter; and upon the hearing of the summons the Justice may make any such order, and give any such directions, relative to or consequents on the matter of the application, as are just.

Adjournment to Court or Chambers.

8. Any application may, if the Justice thinks fit, be adjourned from Chambers into Court.

Any application made in Court which might have been made at Chambers may be adjourned from Court into Chambers.

Signature of Justices’ Order.

9. An order made by a Justice in Chambers and signed by the Registrar and sealed with the office seal shall be sufficiently authenticated.

ORDER XLVII.

Certiorari: Mandamus: Prohibition: Quo Warranto: Writ of Assistance.

1. General.

Application, how made.

1. Applications for writs of Certiorari, Mandamus, or Prohibition, or for leave to exhibit informations of Quo Warranto, or for relief of like nature to Mandamus or Quo Warranto, may be made to the Court or a Justice. The application shall be, in the first instance, for an order calling on the parties interested in resisting the application to show cause why the writ should not be issued, or the information filed, or other relief given, except in the case of applications by a Crown Law officer ex officio for a writ of Certiorari or leave to file an information of Quo Warranto, in which case the order shall, if asked, be absolute in the first instance: Provided that the Court or Justice may in its or his discretion, in any case in which it appears necessary for the advancement of justice, grant an order absolute in the first instance for a writ of Certiorari, Mandamus, or Prohibition.

Order to be returnable before Full Court.

2. Orders to show cause shall be to show cause before a Full Court, unless the matter appears to be one of urgency, in which case the Court or Justice may make the order returnable before a single Justice in Court or Chambers.

Title of affidavits.

3. Affidavits intended to be used on the application shall be entitled “In the High Court of Australia,” without any other title.

Title of proceedings.

4. The order to show cause and all subsequent proceedings shall be entitled “The King against” the judicial or other authority or other person to whom the writ is proposed to be directed, or against whom the information is proposed to be exhibited, “Ex parte” the applicant.

In the case of a writ of Certiorari, Mandamus, or Prohibition, which is proposed to be directed to a judicial or public authority, the authority shall be described by his or their name of office, and, in the case of justices in a court of summary jurisdiction, they shall be described as the justices at the place where the court is held.

The applicant shall, in the case of applications for writs of Mandamus or relief of like nature, and of applications for writs of Prohibition, be called the prosecutor, and, in the case of applications for informations of Quo Warranto or relief of like nature, the relator.

Order absolute.

5. An order absolute need not be served, but the costs of service thereof may be allowed in the discretion of the taxing officer, if the writ is not actually issued or the information is not actually exhibited.

Costs.

6. When the order is made absolute the Court or a Justice may, except as otherwise provided by these Rules, dispose of the costs of the proceedings either by the final judgment or by a separate order.

2. Certiorari.

Time and notice.

7. An order nisi for a writ of Certiorari to remove a judgment, order, or other proceeding of an inferior Court or tribunal, or of justices, shall not be granted unless it is made within six months after the date of the judgment, order, or other proceeding nor unless it is proved upon affidavit that the applicant has given six days’ notice of the intended application to the Court, justice, or other person or persons by or before whom the judgment, order, or other proceeding was made or taken, or to two of them if more than one.

Objections to be stated in order.

8. Any mistake or omission in any judgment, order, or other proceeding, which is intended to be relied upon as a ground for quashing the judgment, order, or proceeding, shall be stated in the order nisi: otherwise an objection on account of the omission or mistake shall not be allowed.

Service.

9. In the case of orders to show cause why a writ of Certiorari should not be issued addressed to justices in a Court of summary jurisdiction, service of the order on the clerk of the Court shall be sufficient.

Security for costs.

10. A writ of Certiorari to remove a judgment or order of any Court or tribunal shall not be issued, except on the application of a Crown Law officer, until the applicant has given security in the sum of Fifty pounds conditioned to prosecute the writ with effect at his own cost without delay, and to pay to the party in whose favour the judgment or order was given or made, in the event of its being confirmed, such costs, if any, as the Court shall order him to pay.

Order to quash in first instance.

11. When cause is shown against an order nisi for a writ of Certiorari to bring up a judgment or order, the Court, if it directs the writ to issue, may by the same order direct that the judgment or order shall be quashed on return without further order; and in that case no security need be given as required by the last preceding Rule, and a memorandum to that effect shall be endorsed upon the writ by the officer by whom it is issued.

In any such case the judgment or order shall be quashed, upon being returned to the Court, without further order.

When no cause shown.

12. When cause is not shown against an order nisi for a writ of Certiorari to bring up a judgment or order, or when the order is absolute in the first instance, the applicant shall apply to the Court or a Justice for an order to quash the judgment or order. Such application shall be made upon notice to the parties interested in supporting the judgment or order.

3. Mandamus.

Prosecutor to be named.

13. An order nisi for a writ of Mandamus or for relief of a like nature shall not be granted except upon the application of some person who is interested in the relief sought, and the applicant must state by his own affidavit that the application is to be made at his instance as prosecutor.

Persons to show cause.

14. The Court or Justice may direct that the order nisi shall be addressed to, and served upon, any person who, in the opinion of the Court or Justice, ought to have notice thereof; and any person who, in the opinion of the Court or Justice, would be affected by the issue

of the peremptory writ may show cause against the order nisi, and, if he does so, shall be liable to costs as if the order had been addressed to him.

Form of writ.

15. Unless otherwise ordered by the Court or Justice, every writ of Mandamus shall command the person to whom it is addressed to do the act in question, or show cause why he has not done it.

But the Court or Justice may direct that the command shall be peremptory in the first instance.

Time for return of writ.

16. Unless otherwise ordered by the Court or Justice, the writ shall be returnable within the same time after service as is allowed for appearance in the case of a writ of summons.

Service.

17. When a writ of Mandamus is directed to one person only, the original writ must be personally served upon him by delivering it to him.

When the writ is directed to two or more persons, it shall be personally served upon all of them but one in the manner prescribed for personal service of writ, and shall be served upon the remaining one by delivering the original writ to him.

Service on justices or corporate bodies.

18. When a writ of Mandamus is directed to justices or to a corporation, or to public authorities, it shall be served on so many of the justices or of the officers or members of the corporation or public authority as are competent to do the act commanded, unless by law some other mode of service is sufficient.

Return.

19. The persons to whom a writ of Mandamus is directed shall, within the time allowed by the writ, file the writ in the Registry, together with a certificate, written thereon or annexed thereto, and signed by them, setting forth that they have done the act commanded by the writ, or else setting forth the reason why they have not done so.

Service.

20. A copy of the return shall be served upon the prosecutor on the same day on which it is filed.

Pleading to return.

21. If the return does not certify that the act commanded has been done, the same proceedings shall be had and taken, and within the same time, as if the return were a defence in an action in which the prosecutor was the plaintiff and the person to whom the writ is directed was the defendant, and had pleaded the return as his defence.

Peremptory writ.

22. If the questions of fact and law, if any, raised by the return are determined in favour of the prosecutor by judgment of the Court or otherwise, the prosecutor shall be entitled to a peremptory writ of Mandamus, commanding the persons to whom the first writ was directed to do the act therein commanded; and such writ shall be awarded by the judgment, if any, or, if there is no judgment, by a separate order.

Costs when peremptory writ awarded in first instance, or on obedience.

23. When a peremptory writ is awarded in the first instance, the Court or Justice shall, at the time of granting the writ, direct by and to whom the costs of the proceedings shall be paid.

When a peremptory writ is not awarded in the first instance, and the return to the writ certifies that the person to whom it is addressed has done the act commanded by the writ, an application for an order for the costs of the proceedings may be made at any time after the return is filed, not being later than the fourth day of the sittings of a Full Court held next after the day on which the return is filed.

The application shall be made to the Court or Justice by whom the writ was awarded.

Proceedings in nature of interpleader.

24. When upon an application for a writ of Mandamus it appear that some person other than the prosecutor claims that the person to whom it is proposed to direct the writ shall do some act inconsistent with the act which the prosecutor claims to have done, the person to whom the order nisi or writ is directed may apply to the Court or Justice for an order that the last-named person be substituted for him in all subsequent proceedings up to the issue of a peremptory writ of Mandamus; and the Court or Justice may make such order on the application as is just.

Time.

25. An application for a writ of Mandamus, or an order in the nature of a Mandamus, to a judicial tribunal to enter a minute of adjournment and hear a matter, shall be made within two months of the date of the refusal to hear, or within such further time as is, under special circumstances, allowed by the Court or Justice.

Mandamus by order.

26. In any case in which the Court may direct the issue of a peremptory writ of Mandamus, the command may be expressed in an order of the Court without the issue of a writ, which order shall have the same effect as peremptory writ of Mandamus.

4. Prohibition.

Pleadings in Prohibition.

27. The Court or Justice may in any case, instead of directing the issue of a writ of Prohibition, direct the prosecutor to deliver to the opposite party a statement of claim setting forth the facts upon which his claim to the writ is founded; and thereupon the same proceeding shall be had and taken in all respects as on a statement of claim in an action.

Proceeding on judgment.

28. If judgment is given for the prosecutor, the judgment shall include a direction that a writ of Prohibition shall issue.

Writ of Procedendo.

29. When a writ of Prohibition has been issued, and it is afterwards made to appear to the Court or Justice that relief ought to be given against the judgment or order by which the writ was awarded on any ground on which relief might be given against a judgment in an action the Court or Justice may direct that a writ, called a writ of Procedendo shall be issued commanding the judicial tribunal to which the writ of Prohibition was issued to proceed to hear or determine the matter is question or otherwise proceed therein as if the writ of Prohibition had not been issued.

Prohibition by order.

30. The Prohibition may be expressed in an order of the Court without the issue of a writ, which order shall have the same effect as a writ of Prohibition.

5. Quo Warranto.

Relator to be named.

31. Upon an application for an order for leave to exhibit an information of Quo Warranto, or for relief of a like nature, the applicant must state by his own affidavit that the application is to be made at his instance as relator.

The Court or a Justice may allow a new relator to be substituted for the original relator, on such terms as to costs or otherwise as are just.

Objections to be stated in order nisi.

32. Every objection intended to be made to the title of the defendant or person called on to show cause shall be stated in the order nisi, and no objection not so stated shall be raised on the return of the order nisi, or in the information, without the leave of the Court or Justice.

Security for costs.

33. An information shall not, without the leave of the Court, given in open Court, be filed until the applicant has given security in the sum of Fifty pounds conditioned to prosecute the information with effect, and to pay to the defendant such costs, if any, as the Court or a Justice shall order.

Form of information.

34. The information shall set forth the facts relied on by the relator as invalidating the title of the defendant to the office in question in the same manner as in a statement of claim.

Signature and service of information.

35. The information shall be in the name of the Attorney-General or the relator, as the case may be, on behalf of His Majesty, and shall be signed by the Attorney-General or relator.

A copy of the information shall be served upon the defendant, or, if at the return of the order nisi he appeared by solicitor, then upon his solicitor.

Defence and subsequent proceedings.

36. The defendant shall plead to the information within the same time and in the same manner as if the information were a statement of claim in an action, and thereupon the same proceedings shall be taken in all respects as if the proceeding by information were an action in which the relator was the plaintiff and the defendant was the defendant.

Judgment.

37. If judgment is given for the Crown, the judgment shall award that the defendant be ousted from the office usurped by him.

Disclaimer.

38. The defendant may, if he thinks fit, disclaim the office in question. Such disclaimer shall be signed by the defendant and attested by a commissioner for affidavits, and shall be filed, and a copy thereof shall be served on the relator within the time allowed for delivering a defence.

Costs.

The relator shall thereupon, unless the Court or a Justice otherwise orders, be entitled to enter judgment of ouster with costs, including the costs of the order giving leave to exhibit the information.

Consolidation.

39. When proceedings by information of Quo Warranto, or for relief of a like nature, are pending against several persons for usurption of offices of the same nature, and upon the same grounds of objection, the Court or a Justice may direct the proceedings to be consolidated, as in the case of actions, and for that purpose may make such orders as are just.

But an order for consolidation or stay of proceedings against any defendant shall not be made upon the application of a defendant, unless he undertakes to enter a disclaimer in the event of judgment being given for the relator in the proceeding which is not stayed.

6. Writ of Assistance.

To issue by order of Justice.

40. A writ of assistance may be issued upon the order or fiat of a Justice, to be granted upon an ex parte application.

ORDER XLVIII.

Habeas Corpus.

Order for production of person in confinement for examination or trial.

1. The Court or a Justice may by order, and without the issue of writ of the Habeas Corpus, direct the production of any person in confinement for the purpose of his examination as a witness, or for his trial at a time and place to be named in the order.

How applied for.

2. Applications for writs of Habeas Corpus, or for orders for the production of persons in confinement for the purpose of examination or trial, may be made to the Court or a Justice ex parte.

The affidavits upon which the application is made shall be entitled “In the High Court of Australia” without other title, except in the case of applications for orders for the production of persons for examination as witnesses in causes or matters pending in the Court, in which case they shall also be entitled in the cause or matter.

How granted.

3. The Court or Justice may make an order absolute in the first instance for the issue of the writ or production of the person, or may make an order calling upon the person who would be required to obey the writ or order, if granted, to show cause why it should not be issued or made. The order and all subsequent proceedings shall be entitled “The King against” the person to whom the writ or order is directed, except in the case of orders for the production of persons as witnesses which shall be entitled in the cause or matter.

Service.

4. Writs of Habeas Corpus, and orders for production directed to persons charged by law with the custody of persons in lawful custody or confinement, may be served either personally or by leaving the original with a servant or officer of the person to whom the writ or order is directed at the place where the person in question is confined or detained.

Other writs of Habeas Corpus must be served personally.

When a writ of Habeas Corpus is directed to more persons than one, it shall be served in the same manner as a writ of Mandamus directed to several persons.

Together with the writ there shall be served a notice, directed to the person to whom the writ is addressed, and pointing out the acts to be done by him in obedience to the writ, and the consequences of making default.

Returns to writs of Habeas Corpus.

5. The person to whom a writ of Habeas Corpus is directed shall at the time and place specified therein, make his return to the writ which shall be endorsed upon or attached to the writ, and shall set out all the causes of the detention of the person named in the writ. The return shall be filed.

Amendment of return.

6. The return may be amended by leave of the Court or a Justice.

Proceedings on return.

7. Upon the return of the writ the return shall be read, and a motion shall then be made for the disposition of the person therein named, or for amending or quashing the return.

Discharge without writs

8. When an order to show cause has been made, the Court or Justice may, on the return of the order, direct the discharge or other disposition of the person in question without the issue of a writ of Habeas Corpus, and any such order shall be as effectual as if it had been made on the return of a writ.

ORDER XLIX.

Committal for Contempt of Court.

Contempt in the face of the Court.

1. When a person is alleged to be guilty of contempt of Court, committed in the face of the Court, or in the hearing of the Court, the Court may, by verbal order, direct him to be arrested and brought before it forthwith, or the presiding Justice may issue a warrant under his hand for the arrest of the accused person.

When the accused person is brought before the Court, the Court shall cause him to be informed orally of the nature of the contempt with which he is charged, and shall require him to make his defence to the charge, and shall after hearing him proceed, either forthwith or after adjournment, to determine the matter of the charge, and shall make such order for the punishment or discharge of the accused person as is just.

The accused person shall be detained in custody until the charge is disposed of, unless the Court allows him to be discharged on bail.

In other cases.

2. In cases other than those in the last preceding Rule mentioned application for punishment for contempt of Court shall be made by motion, upon notice to the accused person, for an order that he be committed to prison for his contempt.

Form of notice.

3. The notice of motion shall specify the nature of the contempt of which the accused person is alleged to be guilty.

It shall be entitled in the cause or matter, if any, with reference to which the contempt is alleged to have been committed, or, if it is not alleged to have been committed with reference to any particular cause or matter, shall be entitled “The King against” the accused person, naming him.

Service.

4. The notice of motion shall be served personally unless the Court or Justice otherwise orders.

Warrant.

5. When a notice of motion for the committal of a person for contempt has been filed, if it is made to appear to a Justice that the accused person is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court, the Justice may by warrant under his hand direct that the accused person shall be arrested and detained in custody until he gives security in such sum as the Justice directs to appear in person and answer the charge and submit to the judgment of the Court.

The warrant shall be directed to the Marshal.

Interrogatories may be administered.

6. On the hearing of the motion the Court may order the accused person to answer on oath, within four days, interrogatories to be exhibited to him touching his contempt.

The answer to the interrogatories shall be made by affidavit.

Adjournment.

7. When the accused person is ordered to answer interrogatories, the hearing of the motion shall be adjourned for a sufficient time to allow the answer to be made and filed.

Punishment.

8. Upon the hearing of the motion the Court may impose a fine instead of ordering the accused person to be committed to prison, or may impose a fine in addition to ordering his committal; and, when it imposes a fine, may order that he be imprisoned, or further imprisoned, until the fine is paid.

Order of committal.

9. When the accused person is ordered to be committed to prison the order of committal shall specify the prison to which he is to be committed.

Discharge.

10. The Court may order the discharge of a person committed to prison for contempt notwithstanding that the time for which he was ordered to be committed has not expired.

Costs.

11. The costs of an application for committal shall be in the discretion of the Court, whether an order for committal is made or not.

ORDER L.

Appeals in Matters relating to Patent and Trades Marks.

How instituted.

1. Appeals from decisions of the Commissioner of Patents or Registrar of Trade Marks, or Law Officer under the Trade Marks Act, shall be instituted by notice of motion, which shall be filed in the Principal Registry, and shall be served on the Commissioner, or Registrar, or Law Officer, and upon such other persons, and in the same manner, as if the appeal were from a final judgment of a Justice of the High Court, and shall be brought within the time, if any, prescribed by regulations under the Patents Act or Trade Marks Act respectively or if no time is so prescribed within the same time as is prescribed for appeals from a final judgment of a Justice of the High Court.

Sitting.

2. If the motion is to be made before the Full Court it shall, unless otherwise ordered by the Court or a Justice, be set down for hearing at the first sittings of the Court appointed to be held at the Principal Seat of the Court after the expiration of one month from the service of the notice of motion. If the motion is to be heard by a single Justice in Court it shall be set down for hearing on a day appointed for that purpose. Ten days’ notice shall be given by the appellant to the respondent of the day for which the appeal has been set down to be heard.

Cross appeals.

3. It shall not be necessary for a respondent to give notice of cross appeal, but, if a respondent intends upon the hearing of an appeal to contend that the decision appealed from should be varied, he shall four days before the day for which the appeal has been set down to be heard, give notice of his intention to such of the parties as may be affected by such contention. The omission to give such notice shall not diminish the powers of the Court when hearing the appeal, but may, in the discretion of the Court, be ground for an adjournment of the hearing, or for a special order as to costs.

Documents to be forwarded to Principal Registry.

4. The Commissioner or Registrar, as the case may be, shall forth with after service of the notice of motion on him forward to the Principal Registrar of the High Court copies of all such documents as may be necessary for the hearing of the appeal.

Papers for Justices.

5. Four days at least before the day for which the appeal has been set down to be heard, the appellant shall lodge in the Registry situated in the place where the appeal is to be heard, a copy of the documents referred to in the last preceding Rule for the Justice, or each of the Justices, by whom the appeal is to be heard. The cost of copies of unnecessary documents will not be allowed.

ORDER LI.

Revocation and Extension of Patents.

Title.

1. A petition for revocation or extension of a patent shall be addressed to the High Court.

Form.

2. Every petition shall contain a statement, as brief as the nature of the case will allow, of the material facts on which the petitioner relies, but not of the evidence by which they are to be proved, nor, except so far as they are material, the contents of documents. The petition shall, when necessary, be divided into paragraphs, numbered consecutively, and each containing as nearly as may be, a separate allegation. Dates, sums, and numbers may be expressed in figures or in words. Signature of counsel shall not be necessary, but the petition shall be signed by the solicitor of the party, or by the party himself, if he proceeds in person.

Persons to be served.

3. At the foot of every petition and of every copy thereof a statement shall be made of the persons, if any, upon whom it is intended to serve the petition, and if it is not intended to serve the petition upon any person, a statement to that effect shall be made at the foot of the petition.

Filing.

4. Every petition shall be filed.

Notice to appear.

5. Upon the filing of the petition the proper officer shall, if it is intended to be served, endorse thereon a notice requiring the parties respondents to the petition to enter an appearance in the cause within the same time, and at the same place, as if the petition were a writ of summons in an action.

A copy of such notice sealed with the office seal shall be endorsed upon every copy of the petition intended for service.

Service.

6. The service of a petition shall be effected by serving the party with a copy of the petition, endorsed as aforesaid, in the same manner, in which a writ of summons in an action is required to be served, except that the original petition and memorandum need not be produced.

Appointment of time for hearing.

7. At any time after the time limited for appearance either party may apply to a Justice to appoint a day and place for hearing the petition.

Dismissal for want of prosecution.

8. If the petitioner does not within six months after he is first entitled to do so apply for the appointment of a time and place for hearing the petition, any respondent may apply to the Court or a Justice to dismiss the petition for want of prosecution, and, on the hearing of such application, the Court or Justice may order the petition to be dismissed accordingly, or make such other order, and on such terms as the Court or Justice may deem just.

Notice to be delivered to Commissioner.

9. Notice of every application for the extension of time for the sealing of a patent, other than a petition, shall be delivered to the Commissioner of Patents at least seven days before the making of such application.

Copy petition to be delivered to Commissioner.

10. A copy of every petition for extension of a patent or for the extension of time for the sealing of a patent shall be delivered to the Commissioner of Patents within seven days of the date of filing the petition.

Notice of hearing to be given to Commissioner.

11. Notice in writing of the day and place appointed for hearing the petition shall be given to the Commissioner of Patents at least seven days before the day appointed.

ORDER LI. A.

Appeals in Matters Relating to Land Tax and Income Tax.

1. Land Tax Appeals.

Appeal by notice of motion.

1. A taxpayer who is dissatisfied with an assessment made by the Commissioner of Land Tax, or in the case of an assessment of land situated in one State only, by a Deputy Commissioner, may within thirty day after the service upon him by post of notice of the decision of the Commissioner or Deputy Commissioner appeal from such decision.

The appeal shall be instituted by notice of motion, which shall specify the Court to which the appeal is to be brought, and state fully the grounds of appeal, and shall be served on the Commissioner or Deputy Commissioner. A copy thereof shall be filed in the proper office of that Court.

Hearing.

2. The appeal shall be set down for hearing on a day appointed be the Court to which it is brought for the hearing of such appeals. Ten days notice shall be given by the appellant to the respondent of the day for which the appeal has been so set down.

Documents for hearing.

3. The Commissioner, or Deputy Commissioner, as the case may be shall forthwith after service of the notice of motion on him forward to the proper officer of the Court to which the appeal is brought copies of all such documents as may be necessary for the hearing of the appeal.

2. Income Tax Appeals.

Appeal by notice of motion.

4. A taxpayer who is dissatisfied with an assessment made by the Commissioner of Taxation may within thirty days after the service be post of notice of the decision of the Commissioner appeal from such decision.

The appeal shall be instituted by notice of motion, which shall specify the Court to which the appeal is to be brought, and state fully the grounds of appeal, and shall be served on the Commissioner. A copy thereof shall be filed in the proper office of that Court.

Effect of treating notice of objection as an appeal.

5. When a taxpayer, in pursuance of Section 37 of the Income Tax Assessment Act 1915, asks the Commissioner to treat his notice of objection as an appeal, the Commissioner shall forthwith forward the notice of objection to the Court to which the appeal is to be brought and shall give notice to the taxpayer that he has done so. Such last mentioned notice shall have the same operation, and thereupon the same proceedings shall be taken as if the taxpayer had on the date thereof served a notice of appeal to the same effect under the last preceding Rule.

Hearing.

6. The appeal shall be set down for hearing on a day appointed by the Court to which it is brought for the hearing of such appeals Ten days notice shall be given by the appellant to the respondent of this day for which the appeal has been set down to be heard.

Documents for hearing.

7. The Commissioner shall forthwith after service of the notice of motion on him forward to the proper officer of the Court to which the appeal is brought copies of all documents as may be necessary for the hearing of the appeal.

3. General.

Papers for Justice.

8. Four days at least before the day for which an appeal has been set down to be heard, the appellant shall lodge in the proper office of the Court a copy of the necessary documents for the use of the Court. The cost of copies of unnecessary documents will not be allowed

General practices as to special cases to apply.

9. Except as in this Order otherwise provided, the provisions of Order XXXII. shall be applicable to Special Cases stated under the provisions of the Land Tax Assessment Act 1910-14 or of the Income Tax Assessment Act 1915.

ORDER LI.b.

Election Rules.

Application of General Rules of Court.

1. The Rules of Court contained in Part I. of these Rules shall so far as the same are applicable, and are not inconsistent with this Order, extend and apply to proceedings in the High Court in the exercise of its jurisdiction as the Court of Disputed Returns.

A petition disputing an election or return shall be deemed to be an originating proceeding within the meaning of the first-mentioned Rules.

Title of petition.

2. The petition shall be entitled in the manner prescribed in Rule 2 of Order I., and shall also be entitled “In the matter of the Election” in question, describing it as an election of members of the Senate for the State in which the election was held, or as an election of a member of the House of Representatives for the Electoral Division in question, or as the case may be.

It shall be divided into paragraphs in the same manner as a Statement of Claim.

Publication.

3. The Registrar shall forthwith after the presentation of a petition publish a copy thereof in the Commonwealth, Gazette, and in the official Gazette of the State in which the election was held.

In the case of an election of a member of the House of Representatives he shall also forthwith publish in some newspaper circulating in the Electoral Division for which the election was held a notice setting forth the fact of the presentation of the petition, the date of presentation, the name of the petitioner, the nature of the relief claimed, and, as concisely as may be, the grounds on which the election is disputed.

Service of petition.

4. The petitioner shall within thirty days after the presentation of the petition, or within such further time as a Justice may allow, cause an office copy of the petition to be served upon every person whose election or return is disputed by the petition.

Service upon a person returned as elected may be made either personally or by post by prepaid registered letter addressed to him at his address as stated in his nomination paper.

Service at an address for service.

5. Any person who has been returned as a member may send to the Registrar at the Registry in the State in which the election was held a writing signed by him giving an address not more than one mile from the Registry at which a petition may be served upon him, and may by the same or another like writing appoint some person entitled to practise in the High Court as a solicitor to act as his agent in respect of any such petition.

When such writing has been sent to the Registrar, service of a petition upon the person by whom it was sent may be made by leaving the office copy of the petition with some person at the address specified in the writing.

Appearances.

6. Any person returned as a member whose election or return is disputed by a petition may within fourteen days after service of the petition upon him, and any person who voted or had a right to vote at the election to which, the petition relates, may within fourteen days after the publication of the petition in the official Gazette of the State in which the election was held, enter an appearance to the petition. Every person so entering an appearance shall be deemed to be a party to the proceedings upon the petition.

Particulars of votes objected to.

7. When the petition, not being a petition merely claiming a fresh count of the votes actually counted at the election, claims the seat for a person who has not been returned as a member, alleging that such person had a majority of valid votes, each of the parties shall, six days before the day appointed for the trial of the petition, deliver to the Registrar and to the opposite party at his address for service a list of the ballot-papers or classes of ballot-papers intended to be claimed or objected to, specifying, in the case of ballot-papers objected to, the ground of objection on which he intends to rely; and no objection shall be entertained against the validity of any ballot-paper upon any ground not specified in the lists so delivered, except by leave of the Court or a Justice and upon such terms as to amendment of the list, adjournment of the trial, and payment of costs, as the Court or Justice may order.

Counter charges.

8. When a petition claims a seat for a person who has not been returned as a member, and a party respondent desires to set up that the person for whom the seat is claimed was not duly elected, upon some grounds other than those mentioned in the last preceding Rule, he shall within six days after entering his appearance, or within such further time as the Court or a Justice may allow, deliver to the Registrar and to the petitioner at his address for service a statement of the grounds on which he intends to rely. The statement shall set forth the grounds is the same manner in which facts relied on to invalidate an election or return are required to be set forth in a petition.

Particulars in general.

9. The Court or a Justice may order any party to the proceeding upon a petition to deliver to any other party particulars, or further and better particulars, of any matter alleged by such party.

Trial.

10. The trial of the petition shall be held at a time and place to be appointed by the order of a Justice on the application of some party to the petition. Ten days’ notice of trial shall be given by the party obtaining the order to the other parties to the petition, and shall be advertised by the Registrar in some paper or papers circulating in the State or Electoral Division for which the election was held.

An order appointing the time and place of trial may be varied from time to time.

Withdrawal of petition.

11. A petition may be withdrawn by leave of the Court or a Justice upon such terms as the Court or Justice may think fit.

Substitution of another petitioner.

Ten days’ notice of the intention to apply for leave shall be given by advertisement in some newspaper or newspapers circulating in the State or Electoral Division for which the election was held, and at the hearing of the application the Court or Justice may allow any other person who was competent to present a petition on the like grounds to be substituted for the petitioner. The proceedings upon the petition shall thereupon be continued as if the person so substituted had been the original petitioner.

Abatement by death of petitioner.

12. When a sole petitioner dies before the trial of the petition, the Court or a Justice may allow some other person who was competent to present a petition on the same grounds to be substituted as petitioner. The proceedings upon the petition shall thereupon be continued as if the person so substituted had been the original petitioner.

ORDER LI.c.

Criminal Practice.

Proceedings upon Indictments filed without previous Examination or Commitment for Trial.

Service of indictment.

1. When an indictment has been filed by the Attorney-General without examination or commitment for trial, an office copy thereof shall be served upon the accused person, upon which copy there must be endorsed a summons, under the hand of the Registrar and seal of the Court, requiring him to appear to the indictment within the same time after service within which he would be required to enter an appearance after service of a writ in a civil action. Such summons shall be endorsed upon the office copy whether a warrant for arrest is or is not granted. A notice shall be added to the summons informing the accused person that in default of his compliance with the exigency thereof a warrant may be issued for his arrest.

Evidence for warrant.

2. An application for a warrant to arrest the accused must be supported by affidavit.

Form of warrant.

3. The warrant shall be addressed to the Marshal and shall require him to keep the accused in safe custody until the time appointed for the trial of the indictment, and then to bring him before the Court at the time and place appointed for such trial.

Service of indictment.

4. An office copy of the indictment endorsed as aforesaid must be delivered to the accused at the time of arrest.

Applications for bail.

5. Applications for bail shall be made to a Justice sitting in Chambers.

Appearance.

6. The accused person is required, within the time limited by the summons, to enter an appearance in the Registry named in the summons in that behalf, and to deliver a copy thereof forthwith at the office of the Crown Solicitor for the Commonwealth, or his agent, in the State in which that Registry is situated.

The appearance shall state the address of the accused person. Any notice required to be given to him may be given to him at such address.

Default of appearance.

7. If the accused person does not enter an appearance a warrant may be issued for his arrest.

Time and place of trial.

8. When the accused person enters an appearance, either party may, on notice to the other party, apply to a Justice to appoint the time and place of trial, of which notice is to be given to the accused person.

ORDER LI.d.

Trading with the Enemy (Vesting on Application of Property).

Interpretation.

1. In this Order—

The expression “the Act” means the Trading with the Enemy Act 1914-1921.

The expression “Public Trustee” means the Public Trustee appointed by the Governor-General under the Act; “enemy” has a meaning corresponding to that given to “enemy subject” in the Act.

The expression “property” means any real or personal property including any rights, whether legal or equitable, in or arising out of property real or personal.

References to sections and sub-sections are references to sections and sub-sections of the Act.

Applications under section 9c.

2. (1) Applications under section 9c shall be by way of originating summons, and such applications and any subsequent applications shall in general and except so far as hereby otherwise provided be made and dealt with mutatis mutandis in accordance with the practice of the Court with regard to similar matters under the Rules of the Court and otherwise.

(2) In all cases where the originating summons is not taken out by the Public Trustee, he shall be named as a respondent thereto, and it shall be served on him unless the Court or a Justice shall in any case or class of cases otherwise order.

(3) In general and except so far as the Court or a Justice otherwise orders the enemy to whom any property may be alleged to belong shall be named as a respondent to any originating summons under section 9c, and any person or corporation holding or managing any property alleged to belong to the enemy may also be named as a respondent to the originating summons.

(4) Originating summonses under section 9c shall be intituled in the matter of the Act and in the matter of the enemy or alleged enemy in question, and may be in the form or to the effect set out in the Appendix hereto.

(5) Any powers of selling, managing, or otherwise dealing with property which may be given to the Public Trustee, by any order made under section 9c may from time to time be revoked, suspended, varied increased, added to, or otherwise dealt with as the Court or a Justice shall from time to time think fit on application made either under liberty reserved by the original order or otherwise.

Evidence.

3. On an application under section 9c the applicant must file an affidavit or affidavits showing—

(a) that the person or corporation, whose property is proposed to be dealt with is an enemy;

(b) the nature and extent of the property in which such person or corporation is alleged to be interested;

(c) any special ground on which it is expedient that the property should be vested in the Public Trustee; and

(d) in cases where the applicant is not the Public Trustee or a Minister of State, the facts showing that the applicant is a creditor of the enemy or otherwise entitled to apply under section 9c.

Subsequent applications.

4. (1) Any subsequent application with regard to any property comprised in an originating summons under section 9c or vested in the Public Trustee may be made by ordinary summons entitled in the same matters as the originating summons.

(2) In cases where any party has already appeared by a solicitor any such ordinary summons may be served on that solicitor or in case of a change of solicitors on the solicitor last appearing for that party although no general appearance in the matter has been entered.

(3) Every subsequent application not made by the Public Trustee shall be served on him unless the Court or a Justice shall in any case or class of cases otherwise order.

Applications under section 9d (2).

5. (1) Applications under section 9d (2) for payment out of property vested in the Public Trustee of any debt or debts shall be made and dealt with as follows:—

(2) The application shall be deemed a subsequent application for the purpose of the last preceding Rule.

(3) The Court or Justice may on the hearing of the application direct all such accounts and inquiries as may be necessary or proper for the purpose of ascertaining the total debts and claims having priority to or ranking with the debt or debts proposed to be paid in whole or part, and (if thought fit) the property available for the payment of such debts and claims, and may for that purpose direct the Public Trustee or any party to issue such advertisements and require such proof by statutory declaration or otherwise as may be expedient. And the Public Trustee may, if he think fit, carry out the duties imposed on him by the proviso to section 9d (2) under the direction of the Court or a Justice.

(4) In directing any payment or payments under section 9d (2) the Court or Justice shall act in accordance with the ordinary rules and practice of the High Court in the administration of estates, but so nevertheless that the Court or Justice shall not be bound to inquire into or take into account or to cause the Public Trustee to inquire into or take into account debts and claims against the enemy to any greater extent than provided for by the proviso to that section.

Presence of parties.

6. (1) Any application under the Act, whether original subsequent or other, may be proceeded with, heard, and dealt with by the Court or Justice, if thought fit, in the absence of an enemy or any other party who shall be or appear to be abroad or whose whereabouts may not be known or whose presence may otherwise be difficult to secure, or without service of any summons or notice of summons on any such party or any intimation to such party other than such, if any, as the Court or Justice shall think fit. And this sub-rule shall be in addition to and by way of extension and enlargement of the ordinary powers and practice of the Court as to the proceedings ex parte and as to substituted service.

Hearing in private.

7. The Court or Justice may at any stage of the proceedings on any application under section 9c or section 9d order that the case shall thenceforward be heard in private.

Variation of order.

8. Any order made under this Order may, if subsequent circumstances render it just so to do, be suspended discharged or otherwise varied or altered by the Court or a Justice.

Fees.

9. The fees payable under this Order shall be the same as those which would be payable in respect of similar proceedings under the ordinary practice of the Court. Provided that the Court or a Justice may remit or excuse either in whole or in part any so paid or payable.

General practice to be followed.

Costs.

10. The proceedings on any application under the Act shall so far as not otherwise provided for by this Order be conducted in accordance with the ordinary practice dealing with similar matters. And the costs of all, and incidental to all, such proceedings shall be in the discretion of the Court or Justice.

ORDER LII.

The Marshal and other Officers charged with Service and Execution of Process.

Process to be returned.

1. The Marshal and every other officer charged with the execution of process shall return the process into Court if required by the party by whom it is sued out.

Mode of making returns.

2. The return shall be made by filing the original process in the Registry, with a certificate endorsed thereon or annexed thereto, and signed by the Marshal or his deputy, or such other officer as aforesaid, and setting forth what has been done under the process.

Return of non est inventus.

3. When a writ of summons or other process is delivered to the Marshal or other officer specially appointed in that behalf for service upon any person, and the Marshal or officer is unable to find the person to be served, he shall, if so required by the party by whom the process was delivered to him, return the process into Court in the same manner as in the case of process of execution, with a certificate setting forth the inability.

Return of writ.

4. No order shall issue for the return of any writ, or to bring in the body of a person ordered to be attached or committed; but a notice to the Marshal by the solicitor of the party at whose suit the writ was issued, or the order for attachment or committal was obtained, or by the party himself if he sues or appears in person, requiring the Marshal to return the writ or to make his report or to bring in the body within a specified time, shall, if not complied with, entitle the party to apply for an order for the attachment of the Marshal.

The time specified in the notice shall not be less than eight days.

Any such notice may be given in vacation as well as at any other time.

Attendance of Marshal in Court.

5. The Marshal or his deputy shall attend all sittings of a Full Court, and all sittings of the Court for the trial of causes, and of any Justice of the Court when sitting in Court on any occasion when he is required by the Justice or Court to do so.

Or his Officers.

6. Whenever, by reason of distance or any other sufficient cause, the Marshal or his deputy cannot conveniently execute any instrument in person, he shall employ some fit person as his officer to execute it.

ORDER LIII

Time.

Exclusion of Sundays and Court holidays

1. When any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sundays and Court holidays shall not be reckoned in the computation of the time.

Time expiring on close day.

2. When the time for doing any act or taking any proceeding expires on a Sunday or Court holiday, and by reason thereof the act or proceeding cannot be done or taken on that day, the act or proceeding shall, so far as regards the time of doing or taking it, be held to be duly done or taken if done or taken on the next day which is not a Sunday or Court holiday.

No delivery of pleading in vacation.

3. Pleadings shall not be delivered or amended in the vacations unless directed by the Court or a Justice.

Vacation not to be reckoned in time for delivery, &c, of pleadings.

4. The time of the vacations shall not be reckoned in the computation of the times appointed or allowed by these Rules for filing, amending, or delivering any pleading, unless so directed by the Court or a Justice.

Time for giving security for cost when not to be reckoned.

5. The day on which an order for security for costs is served, and the time thenceforward until and including the day on which the security is given, shall not be reckoned in the computation of the time allowed for pleading, answering interrogatories, or taking any other proceeding in the cause.

Power of Court or Justice to enlarge or abridge time.

6. The Court or a Justice may enlarge or abridge the time for doing any act or taking any proceeding allowed or limited by these Rules, or allowed or limited for the like purpose by any order of the Court or a Justice, whether so allowed by way of enlargement or otherwise, upon such terms, if any, as the justice of the case requires; and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time originally allowed or limited.

Time of day for service.

7. Service of pleadings, notices, summonses, orders, rules, and other proceedings shall be effected before four o’clock in the afternoon, except on Saturdays, when it shall be effected before twelve o’clock noon. Service effected after four o’clock in the afternoon on any week day except Saturday shall, for the purpose of computing any period of time subsequent to the service, be deemed to have been effected on the following day. Service effected after twelve o’clock noon on Saturday shall for the like purpose be deemed to have been effected on the following Monday.

Notice after delay of one year.

8. When no proceeding has been taken in a cause for one whole year from the time when the last proceeding was taken, any party who desires to proceed shall, before taking any step in the cause, give a month’s notice to every other party of his intention to proceed. When six years have elapsed from the time when the last proceeding was taken, no fresh proceeding shall be taken without the order of the Court or a Justice, which may be made either ex parte or upon notice. A summons on which no order has been made shall not be deemed a proceeding within this Rule; but notice of trial, although avoided by non-entry or countermanded, shall be deemed such a proceeding.

ORDER LIV.

Costs.

Costs, with certain exceptions, to be in the discretion of the Court.

1. Subject to the provisions of any Act and these Rules, the costs of and incident to any proceedings in the Court and in Chambers, including the administration of estates and trusts, shall be in the discretion of the Court or Justice: Provided that nothing herein contained shall deprive an executor, administrator, trustee, or mortgagee who has not unreasonably instituted or carried on or resisted any proceedings of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in Courts of Equity: Provided also that where any action cause matter or issue is tried with a jury the costs shall follow the event unless for good cause shown the Justice by whom such action cause matter or issue is tried or the Full Court shall otherwise order.

Costs of issues to follow event.

2. When issues in fact and law are raised, upon a claim or counter claim, the costs of the several issues respectively, both in law and fact, shall, unless otherwise ordered, follow the event, and an order giving a party costs except so far as they have been occasioned or incurred by or relate to some particular issue or part of his proceedings shall be read and construed as excluding only the amount by which the costs have been increased by such issue or proceedings; but the Court or a Justice, if the whole costs of the action are not intended to be given to the party, may, wherever practicable, by the order, direct taxation of the whole costs and payment of such proportion thereof as the Court or a Justice determines.

Costs of cause removed from another Court.

3. When a cause is removed from any Court into the High Court, the costs in the Court below shall unless otherwise ordered be costs in the cause.

Costs of solicitor guardian ad litem.

4. (1) When a solicitor acts as the guardian ad litem of an infant, or is appointed to be guardian ad litem of a person of unsound mind, in any cause or matter, the Court or a Justice may direct that the costs to be incurred in the performance of the duties of such office shall be borne and paid either by the parties to the cause or matter, or some of them or out of any fund in Court in which the infant or person of unsound mind is interested, and may give directions for the repayment or allowance of such costs as the justice and circumstances of the case require.

(2) When a solicitor acts as guardian ad litem of an infant without an order of the Court or a Justice appointing him as such guard the costs incurred in the performance of the duties of such office shall be in the discretion of the Court or a Justice.

Costs out of estate.

5. The costs occasioned by an unsuccessful claim or unsuccessful resistance to any claim to any property shall not be paid out of the estate unless the Court or a Justice so orders.

Distribution not to be delayed by difficulties as to some shares.

6. When some of the persons entitled to a distributive share of a fund are ascertained, and difficulty or delay has occurred or is likely to occur in ascertaining the persons entitled to the other shares, the Court or a Justice may order or allow immediate payment of their shares to the persons ascertained without reserving any part of those

shares to answer the subsequent costs of ascertaining the persons entitled to the other shares and in any such case such orders may be made for the ascertainment and payment of the costs incurred down to and including such payment as the Court or a Justice thinks just.

Set-off for damages or costs.

7. A set off for damages or costs between parties may be allowed notwithstanding the solicitor’s lien for costs in the particular cause or matter in which the set off is sought.

Costs improperly or fruitlessly incurred.

8. If in any case it shall appear to the Court or a Justice that costs have been improperly or without reasonable cause incurred, or that by reason of any undue delay in proceeding under any judgment or order or of any misconduct or default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the Court or Justice may call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and his client, and also (if the circumstances of the case shall require) why the solicitor should not repay to his client any costs which the client may have been ordered to pay to any other person, and thereupon may make such order as the justice of the case may require. The Court or Justice may if they or he think fit refer the matter to a taxing officer for inquiry and report and direct the solicitor in the first place to show cause before such taxing officer. Such notice (if any) of the proceedings or order shall be given to the client in such manner as the Court or a Justice may direct.

Personal liability of solicitors to pay costs.

9. When upon the trial of any cause or matter it appears that the same cannot conveniently proceed by reason of the solicitor for any party having neglected to attend personally, or by some proper person on his behalf, or having omitted to deliver any paper necessary for the use of the Court or a Justice, and which according to the practice ought to have been delivered, such solicitor shall personally pay to all or any of the parties such costs as the Court or a Justice thinks fit to award.

Amount of costs.

10. (1) The fees payable to barristers and solicitors, whether entitled or admitted to practice by virtue of the Judiciary Act 1903-1926 or otherwise, in respect of business transacted by them in the Court or the offices thereof, in causes or matters pending at the date these Rules come into operation, or commenced after that date shall as well between party and party as between solicitor and client, unless otherwise ordered, be taxed allowed and certified by the Registrar or a Deputy Registrar or some other officer duly appointed for the purpose, and shall, unless otherwise ordered, be allowed in accordance with the scale set forth in Part II. of the Schedule to these Rules.

(2) The provisions of all Acts and Rules in force in any State in which a practitioner resides, relating to the delivery to a client of a bill of costs, or the costs of taxation as between solicitor and client, shall apply, mutatis mutandis, to such taxation.

Review of taxation.

11. Every taxation of costs and every direction of a taxing officer shall be subject to review by a Justice.

Notice of taxing costs and copy bill.

12. (1) In all cases where a notice to tax is necessary, notice of taxing costs, together with a copy of the bill of costs and affidavit of increase (if any), shall be given by the solicitor of the party whose costs are to be taxed to the other party or his solicitor.

(2) Notice under this rule shall be a two days’ notice unless the taxing officer otherwise directs.

Where such notice unnecessary.

13. Notice of taxing costs shall not be necessary in any case where the defendant has not appeared.

Taxing officers to assist each other.

14. The taxing officers shall be respectively assistant to each other and in the discharge of their duties, and for the better despatch of the business of their respective offices, any taxing officer may tax, or assist in the taxation of, a bill of costs which has been referred to any other taxing officer for taxation, and for ascertaining what is due in respect of those costs, and in such case shall certify accordingly.

Notice of adjournment of taxation.

15. The taxation shall, if possible, be continued without interruption till completed, but if adjourned for any reason, notice of the adjournment shall be sent by post to any person not present at the time of the adjournment, whose attendance the taxing officer desires at the next appointment.

Bill to be filed before taxation.

16. A bill of costs shall be filed before the taxation thereof.

Powers of taxing officer where solicitor impedes or delays taxation

17. Any solicitor who fails to file the bill of costs as required or who in any way delays or impedes the taxation shall, if the taxing officer so directs, forfeit the fees to which he would otherwise be entitled for drawing his bill of costs and for attending the taxation, and the taxing officer may also, if he thinks fit, exercise all or any of the powers vested in him by Rules 41 and 65 of this Order.

Allowances for pleadings, &c., in discretion of taxing officer.

18. When writs of summons require special endorsement, and in special cases, pleadings, and affidavits in answer to interrogatories, and other special affidavits, the taxing officer may, in lieu of the allowances for instructions and preparing or drawing, and attendances, make such allowance for work, labour, and expenses, in or about the preparation of the documents as, in his discretion, he thinks proper.

Drawing pleadings.

19. For drawing any pleading or other document, the fees allowed shall include any copy made for the use of the solicitor, agent, or client or for counsel to settle.

Instructions to sue or defend, &c.

20. (1) If the taxing officer on special grounds considers the fee provided for instructions to sue or defend, or instructions for briefs, inadequate, he may make such further allowance as, in his discretion he considers reasonable.

(2) The taxing officer shall allow only the copying of such documents, or parts of documents, to accompany briefs, as he considers necessary for the instruction of counsel, or for use at the trial.

Swearing affidavits.

21. When there are several deponents to be sworn, or it is necessary for the purpose of an affidavit being sworn to go to a distance, or to employ an agent, such reasonable allowance may be made as the taxing officer thinks fit.

Drawing affidavits and attending deponent.

22. The allowances for instructions for and drawing an affidavit in answer to interrogatories and other special affidavits, and attending the deponent to be sworn, include all attendances on the deponent to settle and read over.

Services, &c., where same solicitor acts for both parties.

23. Fees shall not be allowed for delivery of pleadings, services, notices, and perusals, when the same solicitor acts for both parties, unless it is necessary for the purpose of making an affidavit of service.

Separate pleadings or proceedings by the same solicitor.

24. When the same solicitor is employed for two or more defendants, and separate pleadings are filed, or other proceedings had by or for two or more of such defendants separately, the taxing officer shall consider in the taxation of such solicitor’s bill of costs, either between party and party or between solicitor and client, whether such separate pleadings or other proceedings were necessary or proper, and if he is of opinion that any part of the costs occasioned thereby has been unnecessarily or improperly incurred, that part of the costs shall be disallowed.

Evidence.

25. Such just and reasonable charges and expenses as appear to have been properly incurred in procuring evidence, and the attendance of witnesses, shall be allowed.

Agency correspondence.

26. In country agency causes or matters, if it be shown to the satisfaction of the taxing officer that agency correspondence has been special and extensive, he may make such special allowance in respect thereof as in his discretion he thinks proper.

Higher remuneration may be allowed on special circumstances in attendance at Chambers.

27. In respect of attendances at a Justice’s Chambers, where, from the length of the attendance, or from the difficulty of the case the Justice thinks the highest of the prescribed allowances an insufficient remuneration for the service performed, or where the preparation of the case or matter has required skill and labour for which no fee has been allowed or has required and received from the solicitor such extraordinary skill and labour as materially to conduce to the satisfactory and speedy disposal of the business, the Justice may allow such fee to the solicitor for his services as he thinks fit.

Non-attendance or neglect of parties on proceedings at Chambers.

28. When by reason of the non-attendance of any party at Chambers, or by reason of the neglect of any party in not being prepared with any proper evidence, account, or necessary document, the attendance is adjourned without any useful progress being made, the Justice may order that such costs as he thinks reasonable shall be paid to the party attending by the party so absent or neglectful, and the party so absent or neglectful shall not be allowed any fee as against any other party, or any estate or fund in which any other party is interested.

Folio is to be seventy-two words.

29. A folio shall comprise seventy-two words, every figure comprised in a column or authorized to be used, being counted as one word.

Fees to counsel for settling pleadings, affidavits, &c., and advising thereon.

30. Such costs of procuring the advice of counsel on the pleadings, evidence and proceedings in any cause or matter as the taxing officer in his discretion thinks just and reasonable, and of procuring counsel to settle such pleadings and special affidavits as the taxing officer in his discretion thinks proper to be settled by counsel, shall be allowed; but a separate fee shall not be allowed for each affidavit, but one fee for all the affidavits proper to be so settled, which are or ought to be filed at the same time.

Counsel at Chambers.

31. In respect of the attendance of counsel at Justice’s Chambers, or before the Registrar no costs thereof shall in any case be allowed, unless the Justice or Registrar certifies it to be a proper case for counsel to attend.

Inspection of documents.

32. The costs of inspection of documents shall be in the discretion of the taxing officer, but no allowance shall be made for any inspection unless it is shown to the satisfaction of the taxing officer that there were good and sufficient reasons for making the inspection.

Copies of documents, allowance of 6d. per folio, except where solicitor refuses production.

33. For taking copies of documents in the possession of another party, or extracts therefrom, under rules of court, or any special order, the party entitled to take the copy or extract shall pay the solicitor of the party producing such document or extract, as he may, by writing, require, at the rate of sixpence per folio for such copy, and if the solicitor of the party producing the document refuses or neglects to supply the same, the solicitor requiring the copy or extract shall be at liberty to make it, but the solicitor for the party producing shall not be entitled to any fee for production.

Tender for respondent’s costs on service of petition, &c., to be £2 2s.

34. (1) When any petition, notice of motion, or summons is served, and notice is given to the party served that in case of his appearance in Court his costs will be objected to, and such notice is accompanied by a tender of costs for perusal, the amount to be tendered shall be Two pounds two shillings.

(2) The party making such payment shall be allowed the same in his costs, provided such service was proper, but not otherwise; but this rule is without prejudice to the rights of either party to costs, or to object to costs where no such tender is made, or where the Court or a Justice considers the party entitled, notwithstanding such notice and tender, to appear in Court.

(3) In any other case in which a solicitor of a party served necessarily or properly peruses any such petition, notice of motion, or summons, without appearing thereon, he shall be allowed a fee not exceeding the amount specified in sub-rule (1) of this Rule.

Disallowances of costs of improper, vexatious, or unnecessary matter in documents or proceedings.

35. The Court or a Justice may at the hearing of any cause or matter, or upon any application or proceeding in any cause or matter in Court or at Chambers, and whether the same is objected to or not, direct the costs of any endorsement on a writ of summons, pleading summons, affidavit, evidence, notice requiring statement of claim, notice to produce, admit, or cross-examine witnesses, account, statement, procuring discovery by interrogatories or order, applications for time bills of costs, service of notice of motion or summons, or other proceeding, or any part thereof, which is improper, vexatious, unnecessary or contains vexatious or unnecessary matter, or is of unnecessary length or caused by misconduct or negligence, to be disallowed, or may direct the taxing officer to look into the same and to disallow the costs thereof, or of such part thereof as he shall find to be improper, unnecessary vexatious, or to contain unnecessary matter, or to be of unnecessary length, or caused by misconduct or negligence; and in such case the party whose costs are so disallowed shall pay the cost occasion thereby to the other parties; and in any case where such questions shall not have been raised before and dealt with by the Court or a Justice

it shall be the duty of the taxing officer to look into the same (and, as to evidence, although the same may be entered as read in any decree or order) for the purpose aforesaid, and thereupon the same consequences shall ensue as if he had been specially directed to do so.

Set-off of costs.

36. In any case in which, under the last preceding rule or any other rule of court, or by the order or direction of the Court or a Justice or otherwise, a party entitled to receive costs is liable to pay costs to any other party, the taxing officer may tax the costs such party is so liable to pay, and may adjust the same by way of deduction or set-off, or may, if he thinks fit, delay the allowance of the costs such party is entitled to receive until he has paid or tendered the costs he is liable to pay, or the taxing officer may allow or certify the costs to be paid, and direct payment thereof, and the same may be recovered by the party entitled thereto in the same manner as costs ordered by the Court or a Justice to be paid may be recovered.

Unnecessary appearance in Court or at Chambers.

37. When any party appears upon any application or proceeding in Court or in Chambers, in which he is not interested, or upon which, according to the practice of the Court, he ought not to attend, he shall not be allowed any costs of such appearance unless the Court or a Justice expressly directs such costs to be allowed.

Powers of taxing officers.

38. The taxing officers of the Court shall, for the purpose of any proceeding before them, have power—

(a) to summon and examine witnesses either orally or upon affidavit;

(b) to administer oaths;

(c) to require the production of books, papers, and documents;

(d) to issue subpœnas, and to make separate or interim certificates or allocators;

(e) to require any party to be represented by a separate solicitor; and

(f) to do such other acts and adopt such proceedings as are directed by these Rules, or by the Court or a Justice.

Taxing officer to assist when account comprises bill of costs.

39. When an account consists in part of any bill of costs, the Court or a Justice may require the taxing officer to assist in settling such costs, not being the ordinary costs of passing the account of a receiver, and the taxing officer shall thereupon proceed to tax such costs, and shall have the same powers, and the same fees shall be payable in respect thereof, as if the bill of costs had been referred to the taxing officer by an order, and the taxing officer shall return the bill of costs with his opinion thereon to the Court or Justice by whose direction it has been referred to him.

Attendance of parties on taxation.

40. The taxing officer may direct what parties are to attend before him on the taxation of costs to be borne by a fund or estate, and may disallow the costs of any party whose attendance that officer, in his discretion, considers unnecessary.

Refusal or neglect to procure taxation.

41. When any party entitled to costs refuses or neglects to bring in his costs for taxation, or to procure the costs to be taxed, and thereby prejudices any other parties, the taxing officer may certify the costs of the other parties, and certify such refusal or neglect or may allow

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the party refusing or neglecting a nominal or other sum for such costs so as to prevent any other party being prejudiced by the refusal or neglect.

Principles of taxation.

42. On every taxation the taxing officer shall allow all such costs, charges, and expenses as appear to him to have been necessary or proper for the attainment of justice, or for defending the rights of any party, but, save as against the party who incurred the same, no costs shall be allowed which appear to the taxing officer to have been incurred or increased through over-caution, negligence or mistake, or by payment of special fees to counsel, or special charges or expenses to witnesses or other persons, or by other unusual expenses.

Fees not specially provided for.

43. When any services are necessarily and properly performed, for which no specific allowance is provided in Part II. of the Schedule to these Rules, but for which, in the opinion of the taxing officer, an allowance should be made, such sum shall be allowed as appears just and reasonable.

Costs of amendment of plaintiff’s pleadings.

44. When the plaintiff is directed to pay to the defendant the costs of the cause, the costs occasioned to a defendant by any amendment of the plaintiff’s pleadings shall be deemed to be part of such defendant’s costs in the cause (except as to any amendment which appears to have been rendered necessary by the default of such defendant), but there shall be deducted from those costs any sum which has been paid by the plaintiff according to the course of the Court at the time of any amendment.

Plaintiff refused costs of his amendments.

45. When upon taxation a plaintiff, who has obtained a judgment with costs, is not allowed the costs of any amendment of his pleading on the ground that the amendment was unnecessary, the defendant costs occasioned by the amendment shall be taxed, and the amount thereof deducted from the costs to be paid by the defendant to the plaintiff.

Taxation where action, &c., dismissed with costs.

46. When a cause or matter is dismissed with costs, or any costs are by any general or special order directed to be paid, the taxing officer may, unless the Court or a Justice prohibits the taxation of such costs, tax such costs without any order referring the costs for taxation.

Where total of costs taxed to be stated.

47. When any costs are by any judgment or order directed to be taxed and to be paid out of any money or fund in Court, the taxing officer shall state in his certificate of taxation the total amount of all such costs as taxed without any direction for that purpose in such judgment or order.

Fees of conveyancing counsel, and to accountants, &c., on a reference.

48. The allowances in respect of fees to conveyancing counsel incident to proceedings, in the Court, and to any accountants, merchants, engineers, actuaries, and other scientific persons to whom any question incident to proceedings in the Court is referred, shall, subject to review by a Justice, be regulated by the taxing officer.

Fees to counsel.

49. Such fees may be allowed to counsel, as in the circumstances of the case, the taxing officer thinks reasonable.

Considerations by which taxing officer’s discretion must be influenced.

50. Fees or allowances which are discretionary, shall, unless otherwise provided, be allowed by the taxing officer who, in the exercise of his discretion, shall take into consideration the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which any such fees or allowances apply, the nature and importance of the cause or matter, the amount involved, the interest of the parties, the fund or person to bear the costs, the general conduct and costs of the proceedings, and all other circumstances; and, when a party is entitled to sign judgment for his costs, the taxing officer in taxing the costs may allow a fixed sum for the costs of the judgment.

Power of taxing officer to assess costs at a gross sum in case of delay or improper conduct of litigation.

51. If upon any taxation it appears that the costs have been increased by unnecessary delay, or by improper, vexatious, prolix or unnecessary proceedings, or by other misconduct or negligence, or that, from any other cause, the amount of the costs is excessive having regard to the nature of the business transacted, or the interests involved, or the money or the value of the property to which the costs relate, or to the other circumstances of the case, the taxing officer shall allow only such an amount of costs as is reasonable and proper, and may assess the same at a gross sum, and shall (if necessary) apportion the amount among the parties, if more than one. The provisions as to the review of taxations shall apply to allowances and certificates under this rule.

Disallowances where bill reduced by a sixth.

52. If on the taxation of a bill of costs payable out of a fund or estate (real or personal), or out of the assets of a company in liquidation, the amount of the professional charges contained in the bill is reduced by a sixth part, no costs shall be allowed to the solicitor leaving the bill for taxation for drawing and copying it, nor for attending the taxation.

Objections to taxation.

53. Any party who may be dissatisfied with the allowance or disallowance by the taxing officer, in any bill of costs taxed by him of the whole or any part of any items, may at any time before the certificate or allocatur is signed, or such earlier time as may in any case be fixed by the taxing officer, deliver to the other party interested therein, and carry in before the taxing officer, an objection in writing to such allowance or disallowance, specifying therein by a list, in a short and concise form the items or parts thereof objected to, and the grounds and reasons for such objections, and may thereupon apply to the taxing officer to review the taxation in respect of the same. The taxing officer may if he shall think fit issue pending the consideration of such objections a certificate of taxation or allocatur for and on account of the remainder of the bill of costs, and such further certificate or allocatur as may be necessary shall be issued by the taxing officer after his decision upon such objection.

Taxing officer to reconsider and to state his reasons

54. Upon such application the taxing officer shall reconsider and review his taxation upon such objections, and he may, if he thinks fit receive further evidence in respect thereof, and, if so required by either party, he shall state either in his certificate of taxation or allocatur, or by reference to such objection, the grounds and reasons of his decision thereon, and any special facts or circumstances relating thereto.

Review of taxation by a Justice.

55 Any party who may be dissatisfied with the certificate or allocatur of the taxing officer, as to any item or part of an item which may have been objected to as aforesaid, may within fourteen days from the date of the certificate or allocatur, or such other time as the Court or a Justice or taxing officer, at the time he signs his certificate or allocatur, may allow, apply to a Justice at Chambers for an order to review the taxation as to the same item or part of an item, and the Justice may thereupon make such order as he may think just but the certificate or allocatur of the taxing officer shall be final an conclusive as to all matters which shall not have been objected to manner aforesaid.

Evidence on review.

56. An application under the last preceding rule shall be hear and determined by the Justice upon the evidence which has been brought in before the taxing officer, and no further evidence shall be received upon the hearing unless the Justice otherwise directs.

Retaining fee to counsel.

57. No retaining fee to counsel shall be allowed on taxation as between party and party.

Fees for conferences.

58. Fees for conferences are not to be allowed in any cause or matter in addition to the fees to solicitor and counsel for drawing and settling or perusing any pleadings, affidavits, deeds or other proceeding or abstracts of title, or for advising thereon, unless it appears to the taxing officer that, for some special reason, a conference was necessary or proper.

Two counsel.

59. Subject to these rules, the taxing officer may, in his discretion in any case allow the costs of briefing two counsel.

Refreshers.

60. As to refresher fees, when any cause or matter is to be tried or heard upon viva voce evidence in open Court, if the trial shall extend over more than one day, and shall occupy either on the first day only, or partly on the first and partly on a subsequent day or days, more than six hours without being concluded, the taxing officer may allow, for every clear day subsequent to that on which the six hours shall have expired, the following fees:—

To the leading counsel not exceeding Twelve pounds twelve shillings; to the second of two, or three counsel not exceeding Eight pounds eight shillings; to the third of three counsel not exceeding Five pounds five shillings.

The like allowance may be made where the evidence in chief is not taken viva voce, if the trial or hearing shall be substantially prolonged beyond such period of six hours, to be so computed as aforesaid, by the cross-examination of witnesses whose affidavits or depositions have been used. Provided that in the taxation of costs between solicitor and client, the taxing officer shall be at liberty to allow larger fees, under special circumstances to be stated by him.

Premature delivery of briefs.

61. When a cause or matter is not brought on for trial or hearing the costs of and consequent on the preparation and delivery of brief shall not be allowed if the taxing officer is of opinion that such cost were prematurely incurred.

Defendant’s cost, where trial comes on but action cannot be tried.

62. When a cause or matter which stands for trial or hearing is called on for trial or hearing, but cannot be decided by reason of a want of parties or other defects on the part of the plaintiff, and is therefore struck out, and the same cause or matter is again set down, the defendant shall be allowed the taxed costs occasioned by the first setting down, although he does not obtain the costs of the cause or matter.

Counsel’s clerk’s fees.

63. The following fees shall be allowed to counsel’s clerks:—

Vouchers for counsel’s fees.

64. No fee to counsel shall be allowed on taxation unless vouched by his signature or unless it is proved to the satisfaction of the taxing officer that the fee has actually been paid.

Delay before taxing officer.

65. When, in proceedings before the taxing officer, any party is guilty of neglect or delay, or puts any other party to any unnecessary or improper expense relative to such proceedings, the taxing officer may direct such party or his solicitor to pay such costs as he thinks proper, or deal with them under Rule 41 of this Order.

Delivery of bill to client, where costs to be paid out of a fund.

66. When, in any cause or matter, any bill of costs is directed to be taxed for the purpose of being paid or raised out of any fund or property, the taxing officer may, if he considers there is a reasonable ground for so doing, require the solicitor to deliver or send to his clients, or any of them, free of charge, a copy of the bill, or any part thereof, previously to the officer completing the taxation thereof; accompanied by any statement the officer directs and by a letter informing the clients that the bills of costs has been referred to the taxing officer for taxation, and will be proceeded with at the time the officer appoints for this purpose, and the officer may adjourn the taxation for such time as he considers reasonable.

Power of taxing officer to limit or extend time.

67. The taxing officer may limit or extend the time for any proceeding before him, and where, by any general order, or any order of the Court or a Justice, a time is appointed for any proceeding before or by a taxing officer, unless the Court or Justice otherwise directs, the officer may, from time to time, extend the time appointed upon such terms (if any) as the justice of the case requires, and, although the application for the same is not made until after the expiration of the time appointed, it shall not be necessary to make a certificate or order for this purpose, unless required for any special purpose.

Endorsement on bill of costs.

88. Every bill of costs which is left for taxation shall be endorsed with the name and address of the solicitor by whom it is so left, and also the name and address of the solicitor, if any, for whom he is agent, including any solicitor who is entitled or intended to participate in the costs so taxed.

Schedule of fees and costs.

69. (1) The fees and percentages to be taken in the several offices of the High Court of Australia by the several officers thereof and by Commissioners of the Court for taking affidavits shall be as set forth in Part I. of the Schedule to these Rules.

(2) The amounts respectively specified in the second column of Part II. of the Schedule to these Rules shall subject to the said Rules be the costs chargeable in respect of the matters respectively specified in the first column of that Part.

ORDER LV.

Service.

Personal service.

1. When any document is required to be served personally, service shall, unless otherwise provided by Rules of Court, be effected by delivering to the person to be served a copy of the document to be served, and, if that document is not the original document, at the same time showing him the original if he so requires, or by delivering to him an office copy of the document to be served.

Substituted service.

2. In any case in which personal service of any document is required by these Rules or otherwise, if it is made to appear to the Court or a Justice that prompt personal service cannot be effected, the Court or Justice may make such order for substituted or other service, or for the substitution of notice for service, by letter, public advertisement, or otherwise, as is just.

Service so effected in accordance with any such order shall have the same operation as personal service.

Service of judgments and orders.

3. When it is intended to enforce obedience to a judgment or order by process of attachment, the judgment or order must be served personally upon the person against whom the process is to be sought.

Except as aforesaid, personal service of a judgment or order shall not be necessary, nor need the original be shown unless required by the party served.

Mode and time of service when not personal.

4. Any document of which personal service is not prescribed by an Act or by these Rules, shall be sufficiently served if left within the prescribed hours, if any, at the address for service of the person to be served as defined by these Rules with any person resident at or belonging to that place.

Service of notice from Court.

5. Notices sent from any office of the Court may be sent by post and the time at which the notice so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof and the posting thereof shall be a sufficient service.

Service when no appearance or no address for service.

6. When no appearance has been entered for a party, or when or his solicitor, as the case may be, has omitted, to give an address for service as required by these Rules, all documents in respect of which personal service is not prescribed by an Act or by these Rules may be served by filing them in the Registry.

Any document so filed shall be stuck up in the Registry, and shall remain so stuck up for fourteen days.

Service upon solicitor of party formerly appearing in person.

7. When a party after having sued or appeared in person has given notice in writing to the opposite party or his solicitor, through a solicitor, that that solicitor is authorized to act in the cause or matter on his behalf, all documents which ought to be delivered to or served upon the party on whose behalf the notice is given shall thereafter be delivered to or served upon that solicitor at the address given in the notice.

Service not to be effected on Sunday, Good Friday, or Christmas Day

8. No instrument, except a warrant to arrest property in an action in rem, shall be served on a Sunday, Good Friday, or Christmas Day.

Affidavits of service.

9. Affidavits of service shall state the time when, the place where, the person by whom, and the manner in which, the service was effected.

ORDER LVI.

Sittings and Vacations.

Full Court.

1. Sittings of a Full Court shall be held in each year on days to be appointed for that year by Rule of Court, and on such other days as are specially appointed by the Chief Justice, or, in his absence, the senior Justice.

Any act or proceeding which by any Act or practice is required to be done or taken in or with reference to terms shall be done or taken in or with reference to the sittings of a Full Court annually appointed as aforesaid.

Sittings before single Justices

2. Sittings of the Court before single Justices shall, if there is any business to be transacted, be held at such places and on such days as are appointed by Rule of Court, and on such other days as a Justice thinks fit to sit in Court.

Long vacations

3. There shall be two vacations in each year, the winter vacation of four weeks, beginning on a day in June to be annually appointed by Rule of Court, and the summer vacation of eight weeks, beginning on a day in December to be annually appointed in like manner.

Holidays.

4. The following days shall be observed as holidays of the Court, that is to say:—New Year’s Day, Good Friday, Easter Eve, Easter Monday, Easter Tuesday, Christmas Day, the three days following Christmas Day, the Birthday of the Sovereign, the Birthday of the Heir Apparent, and such other days as are appointed by Rules of Court.

Office hours.

5. The several offices of the Court shall be open on every day in the year except Sundays and Court holidays, and shall be open from nine o’clock in the forenoon until four o’clock in the afternoon, except in the vacations, when they shall be open from nine o’clock in the forenoon until one o’clock in the afternoon, and except on Saturdays when they shall close at twelve o’clock noon.

ORDER LVII.

General Provisions.

1. Seals: Process: Office Copies.

Use of Great Seal.

1. The Great Seal of the Court shall be affixed to all Commissions issued by authority of the Court or a Justice, whether under the authority of an Act or of Rules of Court, to all exemplifications of proceedings in the Court, to all writs of Certiorari, Mandamus, Prohibition and Habeas Corpus, and writs of inquiry, and to all documents issued from the Court for use beyond the Commonwealth, not being writs or other documents for service on a party to a cause, and to such other documents as the Court or a Justice in any case directs.

Office Seal.

2. At every Registry there shall be kept a Seal, called the Office Seal which shall bear the words “High Court of Australia,” and also the word “Registry,’’ prefixed by the word “Principal” in the case of the Principal Registry, and by the name of the place at which the Registry is situated in the case of a District Registry. The Office Seal shall be affixed to all writs, process, judgments, and orders, and to all other documents which are authorized to be sealed, except as provided by the last preceding Rule.

Sealing writs, &c.

3. Any person desiring to sue out any writ, process, or commission authorized by an Act or by Rules of Court may prepare it, and present it to a Registrar for issue, and, if it appears that the document is in proper form, and that the person presenting it is entitled to sue it out, the Registrar or his clerk shall sign it and seal it with the proper seal, and it shall thereupon be deemed to be issued.

Office copies.

4. Any person entitled to have a copy of any record of the Court, or of any document filed in a Registry may apply to the Registrar for an office copy thereof, and the Registrar shall thereupon cause copy of the record or document to be made and examined, and to be marked with the words “Office Copy,” and sealed with the Office Seal. Every such copy shall be deemed to be a certified copy within the meaning of any law relating to certified copies.

Meaning of Registrar.

5. The term Registrar in these Rules includes a District Registrar, Deputy Registrar, or other officer discharging the duties of the Registrar or of a District Registrar or Deputy Registrar.

2. General.

Non-compliance with Rules not to render proceedings void.

6. Non-compliance with any Rule of Court, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Justice so directs; but the proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court Justice thinks fit.

Application to set aside for irregularity, when allowed.

7. An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or if the party applying has taken any fresh step after knowledge of the irregularity.

In cases not provided for, Justice may give directions.

8. When a party desires to take any step in a cause or matter, and the manner or form of procedure is not prescribed by Rules of Court or by the practice of the Court the party may apply to a Justice for directions, and any step taken in accordance with the directions given by the Justice shall be deemed to be regular and sufficient.

Solicitor to act for party.

9. Whenever by Rules of Court any act is required to be done by, or to, or with reference to a party, then in the case of a party who sues or appears by solicitor, the act shall be done by, or to, or with reference to, his solicitor, unless it is expressly provided that it shall be done by, or to, or with reference to, the party in question.

Documents, how signed.

10. Subject to these Rules, unless otherwise provided, any document required to be delivered, filed, or served on behalf of a party may be signed by the party, his counsel, or his solicitor.

Publication of written reasons for judgments.

11. When any judgment is pronounced in any cause or matter either by a Full Court or a single Justice and the opinion of any Justice is reduced to writing it shall be sufficient to state orally the opinion of the Justice without stating the reasons therefor but his written opinion shall be then published by delivering the same to the Registrar or Associate in open Court.

12. The following Regulations shall be observed with respect to printed documents:—

1. The document shall be printed on cream wove white foolscap folio paper, in pica type, leaded, with an inner margin about three-quarters of an inch wide, and an outer margin about two inches and a half wide, and every tenth line shall be numbered in the margin.

2. The document shall be printed by direction of the party on whose behalf it is to be filed or lodged.

3. Unless otherwise ordered by the Court or a Justice the expense of printing documents required to be printed shall be allowed as costs of the party on whose behalf they are required to be filed or lodged.

4. The party printing shall on demand in writing furnish to any other party any number of printed copies not exceeding ten upon payment therefor at the rate of 2d. per folio for one copy, and 1d. per folio for every other copy.

Forms.

13. The Forms in the Appendix to these Rules shall be used for the purposes to which they are. respectively applicable with such variations as circumstances require.

PART II.—APPELLATE JURISDICTION.

APPEAL RULES.

SECTION I.

Appeals from Justices of the High Court and New Trials.

1. Appeals.

Appeals to by way of rehearing.

1. Appeals to a Full Court from judgments of Justices of the High Court, whether in Court or Chambers, shall be by way of rehearing.

Place for hearing appeals.

2. Unless otherwise directed by the Court or a Justice, appeals shall be heard at the seat of Government of the State in a Registry whereof the cause is pending. The Court or a Justice may direct that any appeal shall be heard at the seat of Government of some other State.

Mode of instituting appeals.

3. Appeals shall be instituted by notice of appeal, which shall be served and filed as hereinafter provided; and no petition, case, or other formal proceeding other than the notice of appeal shall be necessary. The appellant may by the notice of appeal appeal from the whole or any part of the judgment appealed from, and the notice of appeal shall state whether the whole or part only of the judgment is complained of, and in the latter case shall specify the part complained of. The notice of appeal shall state shortly the grounds on which the appellant intends to rely.

To whom notice to be given.

4. The notice of appeal shall be served upon all parties directly affected by the appeal, and it shall not be necessary to serve parties not so affected; but the Full Court may direct notice of appeal to be served on all or any parties to the cause or matter, or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as are just, and may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties. The notice of appeal may be amended at any time as the Full Court thinks fit.

Time.

5. The notice of appeal must be served within the times following, respectively, that is to say:—

(1) If the appeal is from a final judgment, within twenty-one days from the date of the judgment;

(2) in any other case within ten days from the date of the judgment or order; or

(3) in either case within such extended times as the Court or a Justice allows.

The said periods shall be reckoned from the date when the judgment or order was pronounced, or, in the case of the refusal of an application from the date of the refusal.

The times of the vacations shall be reckoned in the computations of the said periods.

In this Rule the term “final judgment” includes any judgment, decree, order, or sentence, by which the rights of the parties are finally concluded with respect to the matters in question in the cause or matter or any of them, not being a decision upon a mere matter of procedure.

Notice to Registrar.

6. The appellant shall, within the time prescribed by the last preceding Rule for serving the notice of appeal, file a copy of the notice in the Registry of the High Court in which the case is pending. And upon such service and filing the appeal shall be deemed to be duly instituted.

Appeals from refusal of ex parte applications.

7. When an ex parte application has been refused by a single Justice the application may be renewed ex parte by way of appeal to a Full Court.

The application may be made at any sitting of a Full Court held within fourteen days, from the date of the refusal, or, if a Full Court

is not sitting on the last of those days, at any time not later than the first day of the next sitting of a Full Court, or within such extended time as the Court allows.

Length of notice.

8. Notice of appeal from a final judgment shall be for the first sitting of a Full Court held after the expiration of twenty-one days from the institution of the appeal, unless the respondent consents to take shorter notice. In other cases the notice of appeal shall be for the first sitting of a Full Court held after the expiration of twenty-one days from the institution of the appeal, unless the respondent consents to take shorter notice.

Time for setting down.

9. Every appeal, not being an application by way of renewal of an ex parte application which has been refused, shall, unless the Court otherwise directs, be set down for hearing ten days at least before the day for which the notice is given.

Amendment: further evidence.

10. The Full Court shall have all the powers and duties as to amendment and otherwise of the Court or Justice appealed from, and shall have full discretionary power to receive further evidence upon questions of fact, which evidence may be taken either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave except upon appeals from final judgments, and, in any case, as to matters which have occurred after the date of the decision from which the appeal is brought.

Upon an appeal from a judgment after the trial or hearing of a cause or matter upon the merits, such further evidence, save as to matters subsequent as aforesaid, shall not be admitted except on special grounds.

Powers of Court on appeal.

11. The Court, upon the hearing of an appeal, shall have power to draw inferences of fact, not inconsistent with the findings of the jury, if any, and to give any judgment and make any order which ought to have been given or made in the first instance and to make such further or other order as the case requires.

The powers aforesaid may be exercised by the Court notwithstanding that the notice of appeal is that part only of the decision may be reversed or varied, and such powers may be exercised in favour of all or any of the respondents or parties, although such respondents or parties have not appealed from or complained of the decision.

The Court shall have power to make such order as to the whole or any part of the costs of appeal as is just.

Cross appeals

12. It shall not be necessary for a respondent to give notice of cross appeal, but if a respondent intends upon the hearing of an appeal to contend that the decision appealed from should be varied, he shall within the time prescribed by the next following Rule, or such time as is allowed by special order of the Court or a Justice in any case, give notice of his intention to such of the parties as may be affected by such contention. The omission to give such notice shall not diminish the powers of the Court when hearing the appeal, but may, in the discretion of the Court, be ground for an adjournment of the appeal or for a special order as to costs. A copy shall be filed in the Registry.

Time.

13. Subject to any special order which is made in any case, notice by a respondent under the last preceding Rule shall be given ten clear days before the day for which the notice of appeal is given.

Transmission of documents.

14. When the appeal is directed to be heard at a place other than that in which the Registry in which the cause is pending is situated the Registrar of the last-mentioned Registry shall transmit to the Registrar of the Registry situated at the place at which the appeal is to be heard all such documents as may be necessary for the hearing of the appeal. After the appeal has been disposed of, they shall be returned to the Registry in which the cause is pending.

Papers for Justices.

15. (1) Four days at least before the commencement of the sitting for which the notice of appeal is given the appellant shall, unless otherwise ordered, lodge in the Registry situated in the place where the appeal is to be heard five printed copies of the Justice’s notes taken at the hearing including the notes of evidence, if any, and also a copy of the pleadings, if any, and of such other documents as may be necessary for the purposes of the appeal. The cost of copies of unnecessary documents will not be allowed.

Printing may be dispensed with.

16. The Court or a Justice may in any case upon such terms as it or he thinks fit dispense with the printing of such documents, or of any portion thereof, and may direct a greater or less number of printed copies to be lodged, and may also direct printed copies to be served upon any person not a party to the case or matter.

Interlocutory orders not appealed from not to bar relief

17. An interlocutory order or rule from which there has been no appeal shall not operate to prevent the Court upon hearing an appeal, from giving such decision upon the appeal as is just.

Rule nisi on appeal.

18. When on an appeal from the refusal of an ex parte application the Court is of opinion that a rule nisi or order nisi should have been granted, the Court may grant a rule or order nisi returnable either before a Full Court or before a Court constituted by a single Justice.

2. New Trials.

Applications for new trials of causes heard before a Justice.

19. Except as by Rules of Court is otherwise specially provided, every application for a new trial or to set aside a verdict, finding, or judgment, in a cause or matter where there has been a trial by a Justice of the High Court without a jury, shall be made by appeal to a Full Court.

Applications for new trials of causes tried by jury to be by notice of motion.

20. Every application for a new trial or to set aside a verdict, finding, or judgment, in a cause or matter in which a verdict has been found by a jury, shall be made to a Full Court by motion upon notice. No rule nisi or order to show cause or other formal proceeding other than the notice of motion shall be made or taken. The notice shall state the grounds of the application, and whether all or part only of the verdict, finding, or judgment is complained of.

Amendment of notice.

21. The notice may be amended at any time by leave of the Court or a Justice, upon such terms as the Court or Justice thinks just.

Time.

22. The notice of motion must be served upon the party in whose favour the judgment was given within twenty-one days from the conclusion of the trial or the date of the pronouncing of the judgment upon further consideration, as the case may be; or within such extended time as the Court or a Justice allows.

The time of the vacations shall be reckoned in the computation of the period aforesaid.

General practice.

23. Except as aforesaid, all the provisions of the foregoing Rules of this section relating to appeals shall apply to applications for new trials or to set aside verdicts, findings, or judgments, in causes or matters in which a verdict has been found by a jury.

Power of Court;

24. Upon the hearing of an application for a new trial or to set aside the verdict or finding of a jury, the Court may, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, and may for that purpose draw any inference of fact not inconsistent with the findings of the jury, if any; or may, if it is of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and may direct such issues or questions to be tried or determined and such accounts and inquiries to be taken and made as it thinks fit.

3. General Provisions.

Notes of ruling or direction.

25. If, upon the hearing of an appeal or application for a new trial or to set aside a verdict or finding of a jury, a question arises as to the ruling or direction of the Justice to a jury, the Court shall have regard to the Justice’s notes, and to such other evidence or materials as the Court deems expedient.

Appeal or motion for a new trial not to be stay of proceedings.

26. An appeal or motion for a new trial or to set aside a verdict, finding, or judgment, shall not operate as a stay of proceedings unless the Court or a Justice so orders. Any such order may be made as to the whole or any part of the proceedings in the cause or matter, and may be made upon such terms as the Court or Justice granting the stay thinks fit.

No intermediate act or proceeding shall be invalidated except so far as the Full Court directs.

27. When the reasons for decision of the Justice whose decision is appealed from have been given in writing, or are recorded in writing, a copy thereof shall be included with the documents transmitted to the Registry situated at the place to which the appeal is to be heard, and shall be left at the Justices’ chambers.

Hearing may be expedited.

28. The hearing of an appeal or of a motion for a new trial or to set aside a verdict or finding of a jury, may be expedited by order of the Court or a Justice.

SECTION II.

Appeals from Decisions of Judges of the Supreme Courts of the States in Causes or Matters Pending in the High Court.

Provisions of section I. to apply with certain modifications.

1. All the provisions of section I. of these Rules shall apply to appeals to the High Court from judgments of Judges of the Supreme Courts of the States sitting as Judges of first instance in the exercise of federal jurisdiction in causes or matters pending in the High Court, and to applications for new trials, or to set aside a verdict, finding, or judgment in any such cause or matter, subject nevertheless to the modifications set forth in the two following Rules.

Place for hearing appeals

2. Unless otherwise directed by the Court or a Justice such appeals and applications shall be heard at the seat of government of the State. The Court or a Justice may direct that any such appeal or application shall be heard at the seat of government of some other State.

Notice of appeal to be filed in Supreme Court and High Court.

3. A copy of the notice of appeal, or notice of motion for a new trial, or to set aside the verdict, finding, or judgment, shall be filed in the Supreme Court, and a copy shall also be filed in the Registry of the High Court situated at the seat of government of the State; and the appeal shall not be deemed to be duly instituted until these copies have been filed.

Delivery and transmission of documents.

4. The proper officer of the Supreme Court shall deliver to the Registrar of the last-mentioned Registry of the High Court such documents as are necessary for the hearing of the appeal; and that Registrar, if the appeal is not to be heard in the State, shall transmit them to the Registrar of the Registry of the High Court situated at the place where the appeal is to be heard.

After the appeal or motion has been disposed of, the documents shall be returned to the proper officer of the Supreme Court, by or through the Registrar of the Registry in the State as the case may be.

SECTION III.

Appeals from Supreme Courts of the States.

Mode of instituting appeals.

1. Appeals to the High Court from judgments of the Supreme Court of any State, or any other Court of any State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be instituted by notice of appeal, which shall be served and filed as hereinafter provided, and by giving the prescribed security: and no petition, case, or other formal proceeding other than the not notice of appeal and security shall be necessary. The appellant may, by the notice of appeal, appeal from the whole or any part of the judgement appealed from, and the notice of appeal shall state whether whole or part only of the judgment is complained of, and in latter case shall specify the part complained of. The notice of appeal shall state shortly the grounds on which the appellant intends to rely

Place for hearing appeals.

2. Unless otherwise directed by the Court or a Justice, appeals shall be heard at the seat of Government of the State from a Court whereof the appeal is brought. The Court or a Justice may direct that any appeal shall be heard at the seat of Government of some other State.

Leave to appeal.

3. Leave or special leave to appeal to the High Court from any such judgment where leave or special leave is required may be given by the High Court upon motion ex parte, and on such conditions, if any, as the Court thinks fit. On the hearing of the motion, such evidence shall be given on affidavit as the High Court requires. An order for leave or special leave to appeal may be rescinded on the motion of any respondent.

To whom notice to be given.

4. The notice of appeal shall be served upon all parties directly affected by the appeal, but it shall not be necessary to serve parties not so affected; but the High Court may direct notice of the appeal

to be served on all or any parties to the cause or matter, or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as are just, and may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties. Any notice of appeal may be amended at any time as the High Court thinks fit.

Time.

5. The notice of appeal must be served within the times following respectively, that is to say:—

(1) If the appeal is of right, within twenty-one days from the date of the judgment appealed from;

(2) if the appeal is by leave or special leave of the High Court, within twenty-one days from the date of the order of leave;

(3) in either case, if the appeal is from a judgment given or made before the commencement of the Judiciary Act 1903, within such extended time as the Court or a Justice allows.

The said respective periods shall be reckoned in the first case from the date when the judgment was pronounced, and in the second case, from the date when the order giving leave to appeal was made.

Title of proceedings for leave to appeal

6. Affidavits intended to be used upon motions for leave or special leave to appeal, and orders giving leave or special leave to appeal, shall be entitled “In the High Court of Australia,” and in the matter of the cause, which shall be described as pending in the Court from which the appeal is proposed to be brought.

Title of appeals

7. Notice of appeal and all subsequent proceedings on appeals shall be entitled “In the High Court of Australia,” “On appeal from” the Court from which the appeal is brought, naming it; and shall also be entitled as between the party appellant and the party respondent.

Notice to Registrar.

8. The appellant shall, within the time prescribed for serving the notice of appeal, file a copy of the notice of appeal in the Court from which the appeal is brought and also in the Registry of the High Court at the seat of Government of the State in which the decision appealed from was given.

Appealable nature of judgment to be shown by affidavit.

9. When the appeal is not brought by leave or special leave of the High Court, the appellant shall file with the notice of appeal an affidavit setting out sufficient facts to show that the judgment is one from which an appeal lies to the High Court without either leave or special leave and shall file a copy of the affidavit with the copy of the notice of appeal in the Registry of the High Court.

Appeal by leave

10. When the appeal is brought by leave or special leave of the High Court, the notice of appeal shall state that it is so brought. A copy of the order giving leave to appeal shall be served with the notice of appeal, and a copy shall also be filed with the notice in the Court from which the appeal is brought.

Giving of unauthorized appeals.

11. When notice of appeal is given without the leave or special leave of the High Court in a case in which an appeal cannot be brought as of right, the Court from which the appeal is proposed to be brought or a Judge thereof, may set aside the notice.

Security for costs of appeal.

12. Within one month after the service of the notice of appeal, or within such further time as the Court or a Justice allows, or such other time as is prescribed by an order giving leave to appeal, the appellant shall give the prescribed security for the costs of the appeal, and shall give notice thereof to the respondent.

The Court or a Justice may allow an extension of the period of one month although the application for such extension is not made until after the expiration of that period.

The prescribed security shall be given in the Court from which the appeal is brought. If the security is not given within the prescribed time, the appeal shall be deemed to be abandoned.

As soon as the prescribed security is given, the appeal shall be deemed to be duly instituted.

Form of security.

13. Security may be given either by payment of money into Court or by bond with sureties to the satisfaction of the Prothonotary, Master, Registrar, or other proper officer of the Supreme Court.

Transmission documents.

14. If the security is given within the prescribed time, the proper officer of the Court from which the appeal is brought shall forthwith transmit to the Registrar of the Registry of the High Court at the seat of Government of the State a certified copy of all such documents as are required for the hearing of the appeal; and, if the appeal is directed to be heard elsewhere than in the State, the Registrar shall transmit them to the Registrar of the Registry situated in the place where the appeal is to be heard.

A statement of the reasons of the Court for the decision shall, if practicable, be included in the documents so transmitted.

After the appeal has been disposed of they shall, if they have been received from another Registry, be returned to the Registry from which they were so received.

Setting down appeal for hearing.

15. The appeal shall be set down for hearing at a sitting of the High Court appointed for hearing appeals at the place at which it is to be heard. It shall be set down for the first such sitting appointed to be held after the expiration of one month from the due institution of the appeal, unless the respondent consents to its being heard at an earlier sitting.

If the appellant does not set down the appeal for hearing at that sitting, and, three weeks at least before the day appointed for holding the sitting, give notice to the respondent that he has done so, unless the respondent consents to take shorter notice, the respondent, or any respondent, if more than one, may apply to a Full Court, or any place at which it may be sitting, by motion upon notice for an order dismissing the appeal for want of prosecution.

Cross appeals.

16. It shall not be necessary for a respondent to give notice of motion by way of cross appeal, but if a respondent intends upon the hearing of an appeal to contend that the decision appealed from should be varied, he shall within the time prescribed by the next following Rule, or such time as is allowed by special order of a Full Court in any case, give notice of his intention to such of the parties as may be affected by the contention. The omission to give such notice shall not

diminish the powers of the High Court when hearing the appeal; but may, in the discretion of the Court, be ground for an adjournment of the appeal or for a special order as to costs. A copy of the notice shall be filed in the Registry.

Time.

17. Subject to any special order made in any case, notice by a respondent under the last preceding Rule shall be given twenty-one days before the day for which the appeal is set down for hearing.

Printed transcripts to be lodged.

18. Five days at least before the day for which the appeal is set down for hearing the appellant shall, unless otherwise ordered, lodge in the Registry situated in the place where the appeal is to be heard six printed copies of the transcript of documents referred to in Rule 14 of this Order, and shall also serve four printed copies of such transcript upon each of the parties directly affected by the appeal or upon their solicitors. Persons suing or defending jointly shall be deemed a single party for the purpose of this Rule.

Printing may be dispensed with.

19. The Court or a Justice may in any case upon such terms and conditions as it or he thinks fit dispense with the printing of such documents or of any portion thereof, and may direct a greater or less number of printed copies to be lodged or served upon any of the said parties.

Interlocutory judgment and orders not appealed from not to bar relief

20. An interlocutory judgment or order from which there has been no appeal shall not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.

Notes of ruling or direction.

21. If, upon the hearing of an appeal, a question arises as to the ruling or direction of a Judge to a jury, the Court shall have regard to the verified notes or other evidence, and to such other materials as he Court deems expedient.

Stay of proceedings.

22. When an appeal has been duly instituted, the execution of the judgment appealed from shall be stayed. The High Court or a Justice may nevertheless give leave to prosecute the judgment upon the party desiring to prosecute it giving security to the satisfaction of the Court to abide the decision of the Court on the hearing of the appeal.

SECTION IV.

Appeals from Decisions of Inferior Courts.

1. Appeals to the High Court from decisions of inferior Courts of a State in the exercise of Federal jurisdiction shall be brought in the same manner and within the same times, and subject to the same conditions, if any, as to security or otherwise, respectively prescribed by the law of the State for bringing appeals from the same Courts to the Supreme Court of the State in like matters.

Procedure in case of appeals by special leave.

2. When special leave is given to appeal to the High Court from a decision of an inferior Court in the exercise of Federal jurisdiction, the appeal shall, except so far as otherwise directed by the order giving special leave, be instituted in the same manner and within the same time as is prescribed by the last preceding section of these Rules.

Notice to be filed in High Court.

3. When an appeal from an inferior Court is brought by notice of appeal the appellant shall within the term prescribed for giving the notice, file a copy thereof in the Court from which the appeal is brought and also in the Registry of the High Court at the seat of Government of the State in which the decision appealed from was given.

Place of hearing.

4. Appeals from decisions of inferior Courts shall, unless otherwise directed by the Court or a Justice, be heard at the seat of Government of the State in which the decision was given. The Court or a Justice may direct that any such appeal shall be heard at the seat of Government of some other State.

Security.

5. When special leave is given to appeal from a decision of an inferior Court conditionally upon security being given by the appellant, such security shall be given in the Registry of the High Court at the seat of Government of the State.

Copy of procceedings to be filed.

6. (a) Forthwith after the security has been given or if no security is required forthwith after the service of the notice of appeal the appellant shall file in the Registry of the High Court of the State a verified copy of the proceedings or of the Court from which the appeal is brought.

General provisions.

7. Except as herein or by law otherwise provided, the provisions of Section III. of these Rules shall apply to appeals to the High Court from decisions of inferior Courts.

SECTION V.

General Provisions.

Application of Rules relating to Original Jurisdiction.

1. The Rules of Court relating to the procedure of the Court in its Original Jurisdiction shall, so far as they are respectively applicable to appeals, apply to the procedure of the Court in its Appellate Jurisdiction.

Expediting appeals.

2. Notwithstanding anything contained in these Rules the Court or a Justice may expedite the hearing of any appeal of which has been filed in the High Court, whether the appeal has been duly instituted or not, and for that purpose may order the appeal to be set down for hearing on any day appointed for the Court to sit to hear appeals, and may abridge the time within which security is to be given, or the length of notice to be given to the respondent to such extent and upon such terms as the justice of the case may require.

A like order may be made on granting leave or special leave to appeal.

Dismissal for want of prosecution on appellant’s application.

3. An order dismissing an appeal with costs for want of prosecution may be drawn up and signed by the Registrar on the application of the appellant without other warrant than this Rule.

Provided that if notice of cross appeal or notice of intention to move to vary the decision appealed from has been given the order shall not be drawn up without the consent of the party respondent.

APPENDIX.

––––

FORMS OF PROCEEDINGS.

No. 1.—General Form of Writ of Summons.

In the High Court of Australia.

Between A.B. [an infant, by G.H., his next friend], Plaintiff,    and

C.D. and E.F.,        Defendants.

George the Fifth, by the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas, King, Defender of the Faith, Emperor of India.

To C.D. of   and E. F. of

We command you that within   days after the service of this writ on you inclusive of the day of such service, you do cause an appearance to be entered for you in Our High Court of Australia, in an action at the suit of A. B.; and take notice that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence.

Witness: Y.Z., Chief Justice of Our said High Court, the   day of    in the year of Our Lord One Thousand nine hundred and

[l.s.]

Memorandum to be subscribed on the Writ.

N.B.—This writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards.

Appearance [or Appearances] to this writ may be entered by the defendant [or defendants] either personally or by solicitor at the Principal [or District] Registry of the High Court at (Registry from which writ is issued).

Additional memorandum to be subscribed on writs issued from District Registries.

If any defendant neither resides nor carries on business in the State of (State in which District Registry is situated), his appearance may, at his option, be entered either at the place above mentioned or at the Principal Registry of the High Court at (Principal Seat of the Court).

Endorsements to be made on the writ before issue.

The plaintiff’s claim is, &c, (state briefly the nature of the relief claimed in the action).

This writ was issued by the plaintiff in person, who resides at  , and whose address for service is at the same place [or at                            ] [or This writ was issued by X.Y              , of , whose address for service is at                            , solicitor for the plaintiff, who resides at                            , or This writ was issued by V.W., of                             , whose address for service is                            , agent for X.Y., of                             , solicitor for the, plaintiff, who resides at               ] (mention the locality and situation of the plaintiff’s residence in such a manner as to enable it to be easily discovered).

Endorsement to be made on the writ after service thereof.

This writ was served by me on the defendant  at  on  day, the                             day of                            , 19

Endorsed the   day of  , 19 .

    (Signed)  M.N.

     (Address)

No. 2.—Writ of Summons in Actions in rem.

In the High Court of Australia.

A.B., Plaintiff.,

against

The Ship X

[or The Ship X and freight

or The Ship X., her cargo and freight

or (if the action is against cargo only) The cargo ex the Ship (state the name of ship on board of which the cargo is or lately was laden),

or (if the action is against the proceeds realized by the sale of a Ship or cargo) The proceeds of the Ship X (or of the cargo ex the Ship X),

or Fifty cases of opium (or as the case may be)].

George the Fifth, by the Grace of God, &c.

To the owners and all others interested in the Ship X, her cargo and freight (or as the case may be, describing the subject-matter of the action):

We command you, &c. (as in Form No. 1),

(Memoranda and endorsements as in Form No. 1.)

Note.—If the action is by the Crown, instead of the plaintiff’s name put “Our Sovereign Lord the King,” adding, if necessary, “in His Office of Admiralty.”

No. 3.—Writ of Service beyond the Jurisdiction, or when notice in lieu of Service is to be given beyond the Jurisdiction.

[Title, &c., as in Form No. 1.]

George, &c.

To C.D., of

We command you that within   days after the service of this writ [or notice of this writ (as the case may be)] on you, inclusive of the day of such service, you do cause an appearance to be entered for you in our High Court of Australia, in an action at the suit of A.B.; and take notice, that in default of your so doing the plaintiff may, by leave of the Court or a, Justice, proceed therein, and judgment may be given in your absence Witness, &c.

(Memoranda and endorsements as in Form No. 1.)

Further endorsement to be made on the writ before the issue thereof, or before amendment to include a defendant to be served beyond the Commonwealth:—

N.P.—This writ is to be used where the defendant or all the defendants, or one or more defendant or defendants, is or are to be served beyond the Commonwealth of Australia. When the defendant to be served is not a British subject, and is not in British dominions, notice of the writ, and not the writ itself, is to be served upon him.

No. 4.—Notice to be served beyond the Jurisdiction in lieu of Writ.

In the High Court of Australia.

     Between A.B.,     Plaintiff,

and

C.D. and E.F., Defendants.

To E.F., of

Take notice that A.B., of  , has commenced an, action against you, E.F., in the High Court of Australia, by writ of that Court dated the                            day of                            a.d. 19              , which writ is endorsed as follows [copy in full the endorsements]; and you are required within                            days after the receipt of this notice, inclusive of the day of such receipt, to defend the said action by causing an appearance to be entered for you in the said Court to the said action; and in default of your so doing the said A.B. may, by leave of the Court or a Justice, proceed therein, and judgment may be given in your absence.

You may appear to the said writ by entering an appearance personally or by your solicitor at the Principal Registry of the Court at (Principal Seat of the Court) [or, your option (if the writ is issued from a District Registry); at the District Registry of the Court at (place of District Registry from which writ is issued)].

       (Signed)   A.B., of  &c.

or

X.Y.,  of  &c.

Solicitor for A.B.

No. 5.—Special Notice under Order XVI.

(To be added after endorsement of claim on writ.)

The defendant is required to take notice that, if he appears, the plaintiff intends to proceed to trial without pleadings.

No. 6.—General Form of Entry of Appearance by Defendant.

In the High Court of Australia.

(Title as in writ of summons, adding after the name of any defendant who is an infant “by G.H., his guardian ad litem.”)

Enter an appearance in this action for the defendant C.D.

[The said defendant requires (or does not require) a statement of claim to be delivered.]

Dated. &c.

C.D., defendant in person

[or Y.Z., Solicitor for the Defendant C.D.]

The address of C.D. is

His address for service is

[or The place of business of Y.Z. is

His address for service is

No. 7.—Entry of Conditional Appearance.

(Title, &c, as in Form 6.)

Enter a conditional appearance in this action for the defendant C.D., who denies the jurisdiction of the Court to entertain the action against him without his consent [or denies that he is a partner in the defendant firm.]

Dated, &c.

(Signature and memoranda as in Form No. 1, omitting reference to statement of claim.)

No. 8.—Affidavit for Entry of Appearance as Guardian.

(Title, &c., as in writ of summons or originating proceeding.)

I, Y.Z., of  , solicitor, make oath and say as follows;—

G.H., of (state residence and description), is a fit and proper person to act as guardian ad litem, of the above-named infant defendant, and has no interest in the matters in question in this cause adverse to that of the said infant, and the consent of the said G.H. to act as such guardian is hereto annexed marked with the letter A.

Signed and sworn, &c.

Note.—To this affidavit must be annexed the document signed by the guardian in testimony of his consent to act, which may be in the following form:—

I, G.H., of (state residence and description), consent to act as guardian ad litem of C.D., an infant defendant in this cause, and I authorize Mr. Y.Z., of, &c, solicitor, to defend this cause as solicitor for me as such guardian.

G.H.

Witness X.Y.

No. 9.—General Form of Notice of Appearance by defendant.

(Title, &c, as in writ of Summons.)

Take notice that I have this day entered an appearance in this action at the Principal [or District] (Registry of the High Court of Australia at                            [for the defendant C.D.]

I require [or do not require] [or The said defendant requires (or does not require)] a statement of claim to be delivered.

C.D., defendant in person

[or Y.Z., Solicitor for the Defendant C.D.]

The address of C.D. is

His address for service is

[or The place of business of Y.Z. is

His address for service is       .]

In the case of a conditional appearance insert the word “conditional” before “appearance.”

No. 10.—General Form of Summons under Order LVI.

In the High Court of Australia,

Registry.

In the matter of the Trading with the Enemy Act 1914-1921.

In the matter of A.B., an Enemy within the Act.

Let A.B., of   , a person alleged to be an enemy within the above Act and the Public Trustee, under the above Act attend at the Chambers of Mr Justice                            at the time specified in the margin hereof (or on the                            day of                                          , 19              , at                            o’clock in the                             noon) on the hearing of an application of C.D., of                            , who claims to be a creditor of the said A.B. (or to be entitled to recover damages against the said A.B., or managed for or on behalf of the said A.B.) that the undermentioned real or personal property [or rights in or arising out of real or personal property] may vest in the said Public Trustee and that there may be conferred on him such powers of selling managing or otherwise dealing with the property as may seem proper.

The following constitutes the real or personal property or rights to which this summons refers, namely (here give short description).

note.—It will not be necessary for you to enter an appearance in the Registry, but if you do not attend either in person or by your solicitor at the time and place above-mentioned (or named in the endorsement hereon), such order will be made and proceedings taken as the Justice may think just or expedient.

No. 11.—Forms in Admiralty Actions (being the Schedule referred to in Order L r 8.)

Endorsements of Claim in Admiralty Actions.

Damage by Collision.—The plaintiffs, as owners of the ship Mary (her cargo, &c., or as the case may be), claim the sum of £                            against the ship Jane for damage occasioned by a collision which took place (state where) on the                             day of

Salvage.—The plaintiffs, as the owners, master, and crew of the ship Mary, claim the sum of £              for salvage services rendered by them to the ship Jane (her cargo and freight, &c., or as the case may be) on the day of                             , 19              , in or near (state where the services were rendered).

Pilotage.—The plaintiff claims the sum of £  for pilotage of the ship Jane on the                             day of                             , 19              , from (state where pilotage commenced) to (state where pilotage ended).

Towage.—The plaintiffs, as owners of the ship Mary, claim the sum of £ , for towage services rendered by the said ship to the ship Jane (her cargo and freight, &c., or as the case may be) on the                             day of                            , 19              , at or near (state where the services were rendered).

Master’s Wages and Disbursements.—The plaintiff claims the sum of £ , for his wages and disbursements as master of the ship Mary (and to have an account taken thereof).

Seamen’s Wages.—The plaintiffs, as seamen on board the ship Mary, claim the sum of £ , for wages due to them, as follows:—

To A.B., the mate, £30 for two months’ wages from the day

To C.D., able seaman, £  , &c., &c.

(and the plaintiffs claim to have an account taken thereof).

Necessaries, Repairs, &c The plaintiffs claim the sum of £  , for necessaries supplied (or repairs done, &c., as the case may be) to the ship Mary at the port of                            , on the                            day of                            (and the plaintiffs claim to have an account taken thereof).

Possession.—(a) The plaintiff, as sole owner of the ship Mary, of the port of   , claims possession of the said ship.

(b) The plaintiff, as owner of 48-64th shares of the ship Mary, of the port of   , claims possession of the said ship as against C.D., owner of 16-64th shares of the same ship

Mortgage.—The plaintiff, under a mortgage dated the   day of    ,                             claims against the proceeds of the ship Mary the sum of £              as the amount due to him for principal and interest.

Claims between Co-owners.—(a) The plaintiff, as part owner of the ship Mary, claims against C.D., part owner of the same ship, the sum of £                            , as part of the earnings of the said ship, due to the plaintiff, and to have an account taken thereof.

(b) The plaintiff, as owner of 24-64th shares of the ship Mary, being dissatisfied with the management of the said ship by his co-owners, claims that his co-owners shall give bail in the sum of £                            , the value of his said shares, for the safe return of the ship to

Bottomry.—The plaintiff, as assignee of a bottomry bond, dated the  day of  , and granted by C.D. as master of the ship Mary, of                            , to A.B., at the port of                            , claims the sum of £                             , against the ship Mary (her cargo and freight, &c, or as the case may be) as the amount due to him under the said bond.