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Order 1 Preliminary, interpretation and commencement of proceedings

These rules are the High Court Rules 1952.

These rules shall come into operation on the first day of January, 1953, and shall apply to all proceedings and appeals commenced or instituted on or after that date.

3 Repeal and saving

(1) The Rules of Court in force immediately before the commencement of these rules regulating the practice and procedure in the High Court of Australia are repealed.

(2) The repeal effected by the last preceding subrule does not affect the validity of any proceedings taken under the Rules of Court so repealed, or a right, privilege, obligation or liability acquired, accrued or incurred under any of those Rules, or a legal proceeding or remedy in respect of such a right, privilege, obligation or liability.

4 Pending proceedings etc

A proceeding pending and a judgment, decree or order given or made before the commencement of these rules, being of a kind to which these rules apply, shall be treated as if pending, given or made under these rules, and may be proceeded with, enforced, varied, reversed or otherwise dealt with accordingly, subject to any special order or direction made or given by a Justice in a particular case.

5 Interpretation

In these rules, unless the contrary intention appears:

Act means:

(a) an Act of the Parliament of the United Kingdom which is in force in the Commonwealth or in a part of the Commonwealth;

(b) an Act of the Parliament of the Commonwealth;

(d) an Ordinance in force in a State or Territory.

action means a civil proceeding commenced by writ or in such other manner as is prescribed by Rules of Court, but does not include a criminal proceeding by the Crown.

address for service means an address which complies with the provisions of Order 4 of these rules.

administrator includes an officer or agent of the Commonwealth, or of a State or Territory, authorized under the law of the Commonwealth, or of a State or Territory, to administer the estate of a deceased person.

Admiralty action means a proceeding instituted in the Court in the exercise of the jurisdiction conferred on it by or under the Colonial Courts of Admiralty Act, 1890.

Attorney-General means the Attorney-General of the Commonwealth.

body politic includes the Crown in right of the Commonwealth or of a State, and also in right of a part of the Queen’s dominions other than the Commonwealth, including the Crown in right of the United Kingdom.

cause includes a suit and criminal proceedings.

Chief Justice includes a Justice upon whom the powers and duties of the Chief Justice devolve for the time being.

committee includes a person entrusted under the law of the Commonwealth, or of a State or Territory, with the care or management of the person or estate of a person of unsound mind.

Commonwealth means the Commonwealth of Australia, and includes a Territory.

the Court means the High Court of Australia.

defendant includes a person against whom relief is sought by originating process.

District Registrar means an officer of a State or Territory who performs on behalf of the Court at any office of the Registry in such State or Territory any function under section 30 of the High Court of Australia Act 1979.

District Registry means an office of the Registry located elsewhere than at the seat of the Court.

document includes book, map, plan, drawing and photograph.

existing means existing immediately before the commencement of these rules.

file means file in a Registry, and filed and filing have corresponding meanings.

formerly, when used in relation to the Courts or the law or practice in England, means immediately before the date of the commencement of the Supreme Court of Judicature Act, 1873, namely the first day of November, 1875, and, when used in relation to the High Court or the practice or procedure in the High Court, means immediately before the commencement of these rules, and former has a corresponding meaning.

issue of fact includes the assessment of damages in a cause or matter.

Judiciary Act means the Judiciary Act 1903-1979.

Justice or single Justice means a Justice of the Court, including the Chief Justice, and includes:

(a) a Justice sitting in Court or in Chambers;

(b) a Justice sitting in Court or elsewhere as in Chambers;

(d) a Justice sitting with a jury or with an assessor or assessors;

and in the expressions Court or Justice and Court or a Justice means a Justice of the Court sitting in Chambers.

Law Officer means the Attorney-General or the Solicitor-General of the Commonwealth or of a State, as the case requires.

Marshal means the Marshal of the Court, and includes a Deputy Marshal and any other officer or person bound or entitled to discharge the duties and perform or execute the functions or office of the Marshal or a Deputy Marshal.

oath and affidavit include affirmation and statutory declaration, and swear includes affirm and declare.

officer includes Registrar.

order includes rule made by a Court or judge.

original proceeding means a proceeding in the Court which is not a proceeding in a pending cause or matter, and includes a cause and a summons in an interpleader proceeding.

originating process means writ of summons or other summons by which a cause or matter is commenced.

originating summons means a summons other than a summons in a pending cause or matter.

party and parties include as well as the plaintiff and defendant:

(a) a person not originally a party against whom a counterclaim is set up or who has been served with notice to appear under any of these rules; and

(b) a person served with notice of or attending a proceeding although not named on the record or in the process.

person includes corporation and body politic.

person of unsound mind includes a person in respect of whom there has been made, given or taken under the law of the Commonwealth or of a State or Territory an order, certificate or proceeding in consequence of which, under that law, that person, or property of that person, is, by reason of his mental infirmity, committed to the care, management or control of some other person.

plaintiff includes a person seeking relief against another person by a form of proceeding in a Court.

prescribed means prescribed by Rules or by an Act or law.

Principal Registrar means the Registrar.

Principal Registry means the office of the Registry located at the seat of the Court.

proceeding includes action, cause, matter and suit.

proper officer, when used in relation to an officer of the Court, means an officer ascertained as follows:

(a) where a duty or function to be discharged or performed under an Act or these rules is a duty or function which has, before the commencement of these rules, been discharged or performed by an officer, that officer shall, unless otherwise provided by these rules and subject to any direction given by the Chief Justice, continue to be the proper officer to discharge or perform that duty or function;

(b) where a new duty or function is, under an Act or these rules, to be discharged or performed, the proper officer to discharge or perform the same shall be the officer directed by these rules, or, if there is no such officer, then such other officer as is from time to time directed to discharge or perform the duty or function by the Chief Justice, or, subject to any other direction by the Chief Justice, by a Registrar pursuant to these rules;

(c) where a doubt arises as to the proper officer to discharge a duty or perform a function, the proper officer shall be such officer as is directed by the Chief Justice to perform the duty or perform the function.

receiver includes consignee or manager appointed by or under an order of the Court.

Registrar means the Registrar appointed under section 26 of the High Court of Australia Act 1979 and includes a Deputy Registrar so appointed.

Registry, a Registry and any Registry mean the Registry established under section 30 of the High Court of Australia Act 1979 and include each office of the Registry.

Rules, these rules or rules of Court means these rules, and includes:

(a) any forms, fees and costs referred to in these rules; and

(b) any other rules of Court, forms, fees and costs made or prescribed in amendment of, or in addition to, these rules.

seal and seal of the Court mean the seal of the Court referred to in section 32 of the High Court of Australia Act 1979 and include such other seal as is prescribed by these rules.

sealed means sealed with the seal of the Court referred to in section 32 of the High Court of Australia Act 1979 or such other seal as is prescribed by these rules.

State means a State of the Commonwealth.

sue means commence or take part in proceedings as plaintiff, petitioner or applicant.

suit includes an action or original proceeding between parties.

the Registry in which the proceeding is commenced and the Registry in which the matter is then pending and words to the like effect mean “the office of the Registry at which the proceeding was lodged or issued”.

trial includes hearing.

United Kingdom means the United Kingdom of Great Britain and Northern Ireland, or of Great Britain and Ireland, as the case requires.

writing includes printing and typewriting and other similar methods of producing words in a visible form and written has a corresponding meaning.

6 Reference to Acts etc

Where the provisions of an Act, or of these rules, referred to in these rules, have been amended, or repealed and re-enacted with or without modification, by a subsequent Act or Rules, reference in these rules to the provisions so amended or repealed shall, unless the contrary intention appears, be construed as reference to the provisions as amended or re-enacted.

II Commencement and Title of Proceedings

7 Commencement of proceedings

(1) Proceedings commenced by writ of summons shall be called actions.

(2) If there is not an applicable provision providing for the manner of commencement of particular proceedings, they may be commenced in a manner directed by a Justice.

8 Title of proceedings

(1) A proceeding in the Court shall be entitled “In the High Court of Australia”.

(2) There shall be added below the words “In the High Court of Australia” the location of the office of the Registry in which the proceeding was commenced.

Order 2 Writs of summons

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1 Endorsement of claim

A writ of summons shall, before it is issued, be endorsed with a concise statement of the nature of the claim made and of the relief or remedy required in the action.

2 Costs of prolix writs

Any costs occasioned by the use of any forms of writs, and of endorsements thereon, other than, or more prolix than, the forms prescribed, shall be borne by the party using them unless the Court or a Justice otherwise directs.

3 Form of writ

The writ of summons for the commencement of an action shall, except where a different form is required by these rules, be in one of the forms numbered 1 and 2 in the First Schedule, with such variations as the circumstances require.

4 Leave to issue out of Commonwealth

A writ of summons or other originating process for service out of the Commonwealth, or of which notice is to be given out of the Commonwealth, shall not be issued without the leave of the Court or a Justice.

5 Form of writ for service out of the Commonwealth

(1) A writ of summons to be served out of the Commonwealth, or of which notice is to be given out of the Commonwealth, shall be in one of the forms numbered 3 and 4 in the First Schedule, with such variations as the circumstances require.

(2) The notice shall be in the form numbered 5 in the First Schedule, with such variations as the circumstances require.

6 Admiralty action

The writ of summons in an Admiralty action in rem shall be in the form numbered 10 in the First Schedule, with such variations as the circumstances require.

7 Dating and testing of writs

A writ of summons and (unless by these rules or by any law it is otherwise provided) every other writ or originating process shall bear date on the day on which it is issued and shall be tested in the name of the Chief Justice.

Order 3 Endorsement of claim

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1 Endorsement under Order 2, rule 1

In the endorsement required by Order 2, rule 1, it is not essential to set forth the precise ground of complaint or the precise remedy or relief to which the plaintiff considers himself entitled.

2 Forms of endorsement

The endorsement of claim shall be in such concise form as the nature of the case requires.

3 Endorsement to show representative capacity

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.

4 Endorsement where the claim is liquidated

(1) In an action in which the plaintiff’s claim is for a debt or liquidated demand only, the endorsement, besides stating the nature of the claim, shall state the amount claimed for debt or in respect of that demand and for costs respectively, and shall further state that, upon payment of that amount within the time allowed for appearance, further proceedings will be stayed.

(2) The statement shall be as in the form numbered 2 in the First Schedule.

(3) The plaintiff shall be at liberty to state for costs a sum of Twelve dollars sixty cents. If judgment is entered in the action in default of appearance in pursuance of Order 12, rule 3, the amount of costs included in the judgment shall be the said sum of Twelve dollars sixty cents together with Eight dollars forty cents for costs of judgment in addition to mileage.

(4) Unless the writ is endorsed with the amounts mentioned in
subrule (3), the defendant notwithstanding that he has paid such costs may have the costs taxed, and if more than one-sixth is disallowed the plaintiff’s solicitor shall pay the costs of taxation.

5 Ordinary account

Where the plaintiff, in the first instance, desires to have an account taken, the writ of summons shall be endorsed with a claim that an account be taken.

6 Libel

In an action for libel, the endorsement on the writ shall state sufficient particulars to identify the publications in respect of which the action is brought.

Order 4 Endorsement of address

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1 Where plaintiff sues by solicitor

(1) The solicitor of a plaintiff suing by a solicitor shall endorse upon the writ of summons the address of the plaintiff and also his own name and place of business or the name of his firm and its place of business.

(2) Where the place of business so endorsed is not more than three miles from the office of the Registry in which the proceeding is commenced, it shall be the address for service of the plaintiff.

(3) Where that place of business is more than three miles from the office of that Registry, the solicitor shall also endorse upon the writ the address of a proper place, which is not more than three miles from that office, to be the address for service of the plaintiff.

(4) Where the solicitor is acting as agent of another solicitor, he shall add to his own name and place of business, or firm name and its place of business, the name and place of business of the principal solicitor, or the name of the firm of the principal solicitor and its place of business.

2 Where plaintiff sues in person

(1) A plaintiff suing in person shall endorse upon the writ of summons his place of residence and his occupation.

(2) Where his place of residence is not more than three miles from the office of the Registry in which the proceeding is commenced, it shall be his address for service.

(3) Where that place of residence is more than three miles from the office of that Registry, he shall also endorse upon the writ the address of a proper place, which is not more than three miles from that office, to be his address for service.

3 Address for service

Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the plaintiff at his address for service.

4 Where notice is served in lieu of writ

Where notice of a writ of summons or other originating process is to be served on a defendant in pursuance of Order 10, the endorsement required by the preceding rules of this Order shall be made both on the writ, or other originating process, and on the notice.

5 Matters not commenced by writ

Where proceedings are commenced otherwise than by writ of summons, the preceding rules of this Order apply to the process by which the proceedings are originated as if it were a writ of summons.

Order 5 Issue of, and appearances to, writs of summons and originating processes

I Place of Issue

1 Writs etc may be issued out of any Registry

A writ of summons or other originating process may be issued out of any Registry.

2 Endorsement as to appearance on writs etc issued out of Principal Registry

Where a writ of summons or other originating process is issued out of the Principal Registry, and that writ or other process, or notice of that writ or other process, is to be served upon or given to a person, a statement in accordance with the “Memorandum to be subscribed on writs, &c., issued from the Principal Registry” set forth in form numbered 1 in the First Schedule shall appear upon the face of the writ of summons or other process.

II General

4 Preparing and printing writs

A writ of summons or other originating process shall be prepared by the plaintiff or his solicitor and shall be written, printed or typewritten on paper of the same kind as these rules direct in the case of documents required to be printed.

5 Signing etc by proper officer

A writ of summons or other originating process shall be signed, sealed and numbered by the proper officer and shall thereupon be deemed to be issued.

6 Copy of writ etc to be left with proper officer

(1) The plaintiff or his solicitor shall, on presenting a writ of summons or other originating process for signing, sealing and numbering, leave with the officer a copy (written, printed or typewritten on paper of the kind specified in rule 4 of this Order) of the writ or other originating process and of all endorsements thereon.

(2) The copy shall be signed by or for the solicitor leaving it, or by the plaintiff himself if he sues in person.

7 Filing and marking of copy of writ etc

(1) The officer receiving a copy of a writ or other originating process under the last preceding rule shall, on payment of the prescribed fee, file the copy.

(2) An entry of the filing of the copy shall be made in a book to be called the Cause Book, or in a book to be called the Court Book, as the case may be, which are to be kept in the Registries in the manner and form in which those books were respectively kept immediately before the commencement of these rules.

(3) The action or other proceeding shall be distinguished:

(a) by the date of the year and a number in the same manner in which matters were distinguished in those books immediately before the commencement of these rules; and

(b) by the name of the Registry out of which the writ of summons or other originating process, as the case may be, is issued.

III Admiralty Actions

8 Admiralty, arrest warrant after affidavit

(1) In an Admiralty action in rem, a warrant for the arrest of property shall be in the form numbered 11 or the form numbered 12 in the First Schedule, with such variations as the circumstances require, and may be issued at the instance of either the plaintiff or the defendant at any time after the writ of summons has issued.

(2) 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 has been filed and the provisions of subrules (3), (4) and (5) of this rule complied with.

(3) The affidavit shall state:

(a) the name and description of the party at whose instance the warrant is to be issued;

(b) the nature of the claim or counterclaim;

(d) that the claim or counterclaim has not been satisfied;

(e) that the aid of the Court is required to enforce it;

(f) in an action of wages or of possession, the national character of the vessel proceeded against and, if against a foreign vessel, that notice (a copy of which shall be exhibited to the affidavit) of the commencement of the action has been given to a consular officer of the State to which the vessel belongs, if there be one within the Commonwealth; and

(g) in an action of distribution of salvage, the amount of salvage money awarded or agreed to be accepted and the name, address and description of the party holding the salvage money.

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

(5) The solicitor who applies for the issue of the warrant shall lodge an undertaking to pay the fees and expenses of the Marshal.

9 Special circumstances

The Court or a Justice may, if it or he thinks fit:

(a) allow a warrant of arrest to issue although the affidavit referred to in the last preceding rule does not contain all the required particulars;

(b) in an action of wages against a foreign ship, waive the service of the notice; and

IV Time for Appearance

10 Time for appearance to be limited by writ

Where a writ of summons or other originating process is to be served within the Commonwealth, the time to be limited in the writ or other process for the appearance of a defendant shall be:

(a) where the place of service is in the State or Territory in which the Registry from which it is issued is situated — fourteen days;

(b) where the place of service (not being in Papua, New Guinea or Norfolk Island) is in a State or Territory other than the State or Territory in which the Registry from which it is issued is situated — twenty-one days;

(d) in any other case — three months.

V Actions on Relation

11 Actions by Attorney-General on relation

(1) Where a proceeding is commenced in the name of the Attorney‑General of the Commonwealth or of a State on the relation of a private person, the writ of summons or other originating process, when presented for issue, shall have upon it a fiat under the hand of the Attorney-General concerned directing or approving its issue.

(2) A copy of the fiat shall be endorsed upon each copy of the writ of summons or other process to be served.

Order 6 Concurrent writs

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1 Concurrent writs, how issued etc

(1) The plaintiff in an action may, at the time of, or at any time during twelve months after, the issue of an original writ of summons, issue one or more concurrent writ or writs.

(2) A concurrent writ shall bear teste of the same day as the original writ, and shall be marked with a seal, impressed upon the writ by the proper officer, bearing the word Concurrent and the date of issue of the concurrent writ.

2 Period during which concurrent writ in force

A concurrent writ shall be in force only for the period during which the original writ in the action is in force.

3 Concurrent writs for service within, and outside, the Commonwealth

(1) A writ for service within the Commonwealth may be issued and marked as a concurrent writ with a writ for service outside the Commonwealth or a writ of which notice in lieu of service is to be given.

(2) A writ for service outside the Commonwealth, or a writ of which notice in lieu of service is to be given, may be issued and marked as a concurrent writ with a writ for service within the Commonwealth.

4 Concurrent originating process

Where a proceeding is required or permitted to be commenced otherwise than by writ of summons, the preceding rules of this Order apply, mutatis mutandis, to the issue of a concurrent originating process in that proceeding.

Order 7 Disclosure by solicitors and plaintiffs, and change of solicitor

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1 Where name of solicitor endorsed on writ

(1) A solicitor whose name is endorsed on a writ of summons or other originating process shall, on demand in writing made by or on behalf of a defendant who has been served with or has appeared to the writ or process, forthwith declare in writing whether the writ or other process has been issued by him or with his authority or privity.

(2) Where the solicitor fails so to declare within three days after service of the demand, a Justice may order him, within a specified time, so to declare and also to declare the profession or occupation and place of abode of the plaintiff.

(3) Where the solicitor declares that the writ or other originating process was not issued by him or with his authority or privity, proceedings upon the writ or other process shall be stayed and further proceedings shall not be taken upon the writ or other process without leave of the Court or a Justice.

2 Change of solicitor

(1) Subject to the provisions of Order 16, rule 36, subrule (2), a party suing or defending by a solicitor may change his solicitor in a proceeding without an order for that purpose.

(2) Subject to rules 6 and 7 of this Order, the former solicitor shall be considered the solicitor of the party until the final conclusion of the proceeding before the Court, whether on appeal or otherwise, unless and until:

(a) notice of a change of solicitor is filed in the Registry in which the proceeding is then pending; and

(b) a copy of the notice, endorsed with a memorandum stating that the notice has been duly filed and the name of the Registry in which it has been filed, is served on each other party to the proceeding, other than a party in default as to entry of appearance.

(3) A notice under the last preceding subrule shall be signed by the new solicitor and shall state his place of business.

(4) Where that place of business is not more than three miles from the office of the Registry in which the proceeding is pending, it shall be the address for service of the party.

(5) Where that place of business is more than three miles from the office of that Registry, the notice shall also state the address of a proper place, which is not more than three miles from that office, to be the address for service of the party.

(6) Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the party at his address for service.

3 Notice of appointment of solicitor

(1) Where a party, after having sued or defended in person, appoints a solicitor to act on his behalf in a proceeding, he may give notice of that appointment.

(2) The provisions of the last preceding rule relating to a notice of change of solicitor and to service apply, with the necessary modifications, in the case of notice of appointment of a solicitor.

4 Notice of intention to act in person

(1) Where a party, after having sued or defended by a solicitor, intends to act in person, he may give notice stating his intention to act in person and giving an address for service.

(2) The provisions of rule 2 of this Order relating to a notice of change of solicitor apply, with the necessary modifications, to a notice of intention to act in person.

5 Power to act through new solicitor

A party giving notice under rule 2 or rule 3 of this Order may perform the duties prescribed by those rules in person or through his new solicitor.

6 Removal of solicitor from the record at the instance of another party

(1) Where a solicitor who has acted for a party in a proceeding:

(a) has died;

(b) has become bankrupt;

(d) has failed to take out a practising certificate, where one is required, or to register as a practitioner, in the High Court; or

(e) has ceased to have the right to practise in the High Court;

and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of this Order, another party to the proceeding may, on notice to be served on the first-named party personally, or by pre-paid post letter addressed to his last-known place of address, unless the Court or a Justice otherwise directs, apply to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the first-named party in the proceeding, and the Court or Justice may make an order accordingly.

(2) Where an order is made under the last preceding subrule, the party on whose application the order was made shall:

(a) serve on each other party to the proceeding (other than a party in default as to entry of appearance) a copy of the order;

(b) procure the order to be filed in the Registry in which the proceeding is then pending; and

(3) Where the party on whose application the order was made has complied with the last preceding subrule, the party against whom the order was made shall either appoint another solicitor or give notice of intention to act in person in accordance with the provisions of this Order, and, in default of his so doing, documents in respect of which personal service is not required may be served on the party so in default by being filed in the Registry.

(4) An order made under this rule does not affect the rights or liabilities of a solicitor and the party for whom he acted as between themselves.

7 Withdrawal of solicitor who has ceased to act for a party

(1) Where a solicitor who has acted for a party in a proceeding has ceased so to act and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of this Order, the solicitor may, on notice to be served on the party personally or by pre-paid post letter addressed to his last-known place of address, unless the Court or a Justice otherwise directs, apply to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the proceeding, and the Court or Justice may make an order accordingly.

(2) Where an order is made under the last preceding subrule, the solicitor on whose application the order was made shall:

(a) serve on each party to the proceeding (other than a party in default as to entry of appearance) a copy of the order;

(b) procure the order to be filed in the Registry in which the proceeding is then pending; and

and, in default of his so doing, and subject to rules 2, 4 and 6 of this Order, he shall be considered the solicitor of the party for whom he has acted to the final conclusion of the proceeding before the Court, whether on appeal or otherwise.

(3) Where:

(a) an order made under this rule has been filed in the appropriate Registry; and

(b) the party to whom the order relates has not appointed another solicitor or given notice of intention to act in person in accordance with the provisions of this Order;

a document in respect of which personal service is not required may be served on that party by being filed in that Registry.

(4) An order made under this rule does not affect the rights or liabilities of a solicitor and a party as between themselves.

8 Solicitor not to act for adverse parties

A solicitor shall not act in a proceeding for plaintiff and defendant or for any two or more defendants having adverse interests in a matter.

Order 8 Renewal of writs

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1 Original writ in force for 12 months

(1) Subject to the next succeeding subrule, an original writ of summons shall not be in force for more than twelve months from the day of the date of the writ, including the day of that date.

(2) Where a defendant named in an original writ has not been served with the writ, the plaintiff may, before the expiration of twelve months from the day of the date of the writ, 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 the defendant, or for other good reason, may order that the original or concurrent writ be renewed for six months from the date of the renewal inclusive, and so from time to time during the currency of the renewed writ.

(3) Where an order is made under the last preceding subrule, the writ shall be renewed by being marked with a seal bearing the word Renewed and the date of the day, month and year of the renewal.

(4) A writ so renewed shall remain in force, and be available to prevent the operation of a law whereby the time for the commencement of the action is limited, and for all other purposes, from the date of issue of the original writ of summons.

(5) A seal for the purpose of marking writs in accordance with this rule shall be provided and kept for that purpose at each Registry and shall be impressed upon the writ by the proper officer upon delivery to him by the plaintiff or his solicitor of a memorandum in the form numbered 13 in the First Schedule, with such variations as the circumstances require.

2 Evidence of renewal

The production of a writ of summons purporting to be marked with the seal of the Court showing the writ to have been renewed in accordance with this Order is sufficient evidence of its having been so renewed and of the commencement of the action as of the first date of the renewed writ for all purposes.

3 Lost writ

Where a writ or other originating process, of which the production is necessary, has been lost, the Court or a Justice, upon being satisfied of the loss and of the correctness of a copy of the writ or other process, may order that the copy shall be sealed in lieu of the original writ or other originating process.

Order 9 Service of writs of summons

I Mode of Service

1 Undertaking to accept service

Service of a writ or other originating process upon a party is not required when the solicitor of the party to be served undertakes in writing to accept service and an appearance is entered.

2 When service required, how effected

(1) Where personal service is required, the writ or other originating process shall, whenever it is practicable, be served by delivering a copy of the writ or other process, and of the endorsement thereon, and at the same time producing the original.

(2) Where it appears to the Court or a Justice that the plaintiff is, from any cause, unable to effect prompt personal service, the Court or Justice may make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise, as is just.

3 Substituted service

An 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.

II On Particular Defendants

4 Infant

(1) Where an infant is a defendant, service on his father or guardian, or if 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.

(2) The Court or Justice may order that service made, or to be made, on the infant shall be deemed good service.

5 Persons of unsound mind

Where a person of unsound mind is a defendant in a proceeding, service on him shall be effected in such a manner as a Justice directs upon application made supported by affidavit.

III On Corporations and Agents

6 Service on corporations etc

Subject to a contrary statutory provision, a writ of summons or other originating process, or notice of a writ or other process, to be served on a corporation aggregate, may be served on the mayor, president or other head officer, or on the town clerk, clerk, treasurer, secretary, manager or other principal officer of that corporation within the Commonwealth.

7 Service on agent

(1) Where a contract has been entered into within the Commonwealth by or through an agent residing or carrying on business within the Commonwealth on behalf of a principal residing or carrying on business outside the Commonwealth, a writ of summons in an action relating to or arising out of that contract may, by leave of the Court or a Justice given before the determination of the agent’s authority or of his business relations with the principal, be served on the agent, in lieu of or in addition to service upon his principal.

(2) Notice of the order giving leave to serve an agent, and a copy of that order and of the writ of summons, shall forthwith be sent by pre-paid registered post letter to the defendant or defendants at his or their address outside the Commonwealth.

IV In Particular Actions

8 Service in action for recovery of land

Service of a writ of summons in an action to recover land may, in case of vacant possession, when service cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwelling-house or other conspicuous part of the property.

9 Admiralty actions in rem

In an Admiralty action in rem, service of a writ or warrant is not required where the solicitor of the defendant agrees in writing to accept service and to put in bail, or to pay money into Court in lieu of bail.

10 Service of warrant of arrest

(1) In an Admiralty action in rem, the warrant of arrest shall be served by the Marshal or his deputy.

(2) The party issuing the warrant shall, within seven days from its service, file the warrant, endorsed with a certificate of service, in the Registry out of which it was issued.

11 Service of writ or warrant, how effected

In an Admiralty action in rem, service of a writ of summons or warrant against a ship, freight or cargo on board shall be effected by nailing or affixing the original writ or warrant for a short time on the mainmast, or on the single mast, of the vessel or on some other conspicuous part of the vessel, and, on taking off the process, leaving a true copy of it nailed or fixed in its place.

12 When cargo landed

Where cargo has been landed or transhipped, service of the writ of summons or warrant to arrest the cargo and freight shall be effected by placing the writ or warrant for a short time on the cargo, and, on taking off the process, by leaving a true copy upon it.

13 Where no access to cargo

Where cargo is in the custody of a person who will not permit access to it, service of the writ or warrant may be made upon the custodian.

14 Proceeds in Court

In an Admiralty action in rem, the service of a writ of summons or warrant upon proceeds in Court shall be effected 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.

V Generally

15 Endorsement after service

(1) The person serving a writ of summons or other originating process shall, within three days after service, endorse on the writ or other originating process the day of the month and week, and the time of the day, of the service of the writ or other process, and, if he does not do so, the plaintiff, in case of non-appearance, may not proceed as upon default without the leave of the Court or a Justice.

(2) An affidavit of service of the writ or other originating process shall state the day on which the endorsement referred to in the last preceding subrule was made.

(3) This rule applies to substituted as well as to other service.

Order 10 Service outside the Commonwealth

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1 In certain cases service of writ etc allowed outside Commonwealth

(1) Leave to serve a writ of summons, or notice of a writ of summons, outside the Commonwealth may be given by the Court or a Justice where:

(a) the whole subject-matter of the action is land situated within the Commonwealth (with or without rents or profits), or the perpetuation of testimony relating to land within the Commonwealth;

(b) an act, deed, will, contract, obligation or liability affecting land or hereditaments situated within the Commonwealth is sought to be construed, rectified, set aside or enforced in the action;

(d) the action is for the execution, as to property situated within the Commonwealth, of the trusts of a written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of the Commonwealth or of a State or Territory;

(e) the action is one brought to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of the breach of a contract:

(i) made within the Commonwealth;

(ii) made by or through an agent trading or residing within the Commonwealth on behalf of a principal trading or residing outside the Commonwealth; or

(iii) which is governed by the law of the Commonwealth or of a State or Territory;

(f) the action is brought in respect of a breach committed within the Commonwealth of a contract wherever made, even though that breach was preceded or accompanied by a breach outside the Commonwealth which rendered impossible the performance of the part of the contract which ought to have been performed within the Commonwealth;

(g) the action is founded on a tort committed within the Commonwealth;

(h) an injunction is sought as to anything to be done within the Commonwealth, or a nuisance within the Commonwealth is sought to be prevented or removed, whether damages are or are not also sought in respect of that thing or nuisance;

(i) a person outside the Commonwealth is a necessary or proper party to an action properly brought against some other person duly served within the Commonwealth;

(j) the action is by a mortgagee or mortgagor in relation to a mortgage of personal property situated within the Commonwealth and seeks relief of the nature or kind following, that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, re-conveyance, delivery of possession by the mortgagee, but does not seek (unless and except so far as permissible under paragraph (e) of this subrule) a personal judgment or order for payment of moneys due under the mortgage; or

(k) the action is brought by virtue of the Civil Aviation (Carriers’ Liability) Act 1959.

(2) In paragraph (j) of the last preceding subrule:

(a) mortgage means a mortgage, charge or lien of any description;

(b) mortgagee means a party for the time being entitled to or interested in a mortgage;

(d) personal property situated within the Commonwealth means personal property which, on the death of an owner thereof intestate, would form subject-matter for the grant of letters of administration to his estate under the law of a State or Territory.

2 Agreement as to jurisdiction and mode of service

(1) Where the parties to a contract upon which an action which is within the jurisdiction of the Court is brought have agreed:

(a) that the Court shall have jurisdiction to entertain an action in respect of that contract;

(b) that service of a writ of summons in that action may be effected at a place within or outside the Commonwealth on a party, or on a person on behalf of a party, or in a manner specified or indicated in the contract;

service of the writ of summons at the place (if any), on the party or on the person (if any) and in the manner (if any) specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident.

(2) Where no place, mode or person is so specified or indicated, service outside the Commonwealth of the writ may be ordered.

3 Application to be supported by evidence

(1) An application for leave to serve a writ of summons, or notice of a writ of summons, on a defendant outside the Commonwealth shall be supported by affidavit or other evidence stating:

(a) that, in the belief of the deponent, the plaintiff has a good cause of action;

(b) the place or country where that defendant is or probably may be found; and

(2) Leave to serve the writ or notice outside the Commonwealth shall not be granted unless it is made sufficiently to appear to the Court or Justice that the cause is a proper one for service outside the Commonwealth under this Order.

4 Order to fix time for appearance

(1) An order giving leave to effect service or give notice outside the Commonwealth shall limit a time after the service or notice within which the defendant in respect of whom the leave is given is to enter an appearance.

(2) The time referred to in the last preceding subrule shall depend on the place or country where or within which the writ is to be served or the notice given, and on whether the airmail is available to the defendant.

5 Notice of writ

Where the defendant is not within the Commonwealth, service of notice of a writ is deemed to be effective service of the writ.

6 Service of notice of writ

Where leave is given under rule 1 of this Order to serve notice of a writ of summons outside the Commonwealth, the notice shall, subject to rules 7 and 9 of this Order and to any direction given by the Court or a Justice as to the manner in which the notice shall be served or brought under the notice of the defendant, be served in the manner in which a writ of summons is served.

7 Service abroad by letter of request

(1) Where leave is given to serve a writ of summons, or a notice of a writ of summons, in a country to which this rule, by order of the Chief Justice from time to time, is applied, the procedure prescribed by the succeeding subrules of this rule may be adopted.

(2) The document to be served shall be sealed with the seal of the Court used for sealing documents which are to be served outside the Commonwealth and shall be transmitted to the Attorney‑General by the Chief Justice together with:

(a) a copy of the document translated into the language of the country in which service is to be effected; and

(b) a request in the form numbered 6 in the First Schedule, with such variations as the circumstances require, for the further transmission of the document and the copy to the government of the country in which leave to serve the document has been given.

(3) The party bespeaking a copy of a document for service under this rule shall, at the time of bespeaking the copy, file a praecipe in the form numbered 8 in the First Schedule.

(4) An official certificate, or declaration upon oath or otherwise, transmitted through the diplomatic channel by the government or a court of a country to which this rule applies, to the High Court, if it certifies or declares the document:

(a) to have been personally served; or

(b) to have been duly served upon the defendant in accordance with the law of that country, or words to that effect;

is sufficient proof of that service, and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these rules in that behalf.

(5) Where an official certificate or declaration, transmitted to the Court in manner provided in the last preceding subrule, certifies or declares that efforts to serve a document have been without effect, the Court or a Justice may, upon the ex parte application of the plaintiff, order in the form numbered 42 in the First Schedule, with such variations as the circumstances require, that the plaintiff may bespeak a request for substituted service of the document.

(6) A request for substituted service of a document under this rule may be bespoken by the plaintiff, at the Registry out of which the document has been issued, upon filing a praecipe in the form numbered 8 in the First Schedule, and the document and a copy of the document and of the order shall be sealed and transmitted to the Attorney-General in the manner described in subrule (2) of this rule together with a request in the form numbered 9 in the First Schedule, with such variations as the circumstances require.

8 Other originating processes

(1) Service outside the Commonwealth may be allowed by the Court or a Justice of an originating process, other than a writ of summons, or of a summons, order or notice in interlocutory proceedings, in a case in which it is, in the opinion of the Court or Justice, proper to make such an order.

(2) Rules 3, 4, 5, 6 and 7 of this Order apply, mutatis mutandis, to service allowed pursuant to this rule.

9 Service of Australian documents in Convention countries

(1) Where service is authorized by or under these rules of a writ of summons or other originating process, or of a summons, order, notice or other document, in a foreign country with which a Convention in that behalf has been made and extended to the Commonwealth, the procedure specified in the succeeding subrules of this rule shall, subject to any special provisions contained in the Convention, be adopted.

(2) The party bespeaking the service shall file in the Registry out of which the writ of summons or other originating process is to be issued, or in which the matter is pending, a request in the form numbered 8 in the First Schedule, with such variations as the circumstances require.

(3) The request shall state the medium through which it is desired the service shall be effected, that is, whether:

(a) directly through the British or Australian Consul; or

(b) through a foreign judicial authority.

(4) Subject to the next succeeding subrule, the request shall be accompanied by:

(a) the original document;

(b) a translation of that document in the language of the country in which service is to be effected certified by or on behalf of the person making the request;

(d) such further copies as the Convention requires.

(5) Where the service is required to be made on a British subject directly through the British or Australian Consul, the translation and copies of the translation need not accompany the request unless the Convention expressly requires that they should do so.

(6) The document to be served shall be sealed with the Office seal and shall be forwarded by the Registrar of the Registry referred to in subrule (2) of this rule to the Attorney-General for transmission to the foreign country.

(7) An official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by a British or Australian consular authority, to the Court, establishing the fact and the date of the service of the document, is sufficient proof of that service and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these rules in that behalf.

(8) Where a writ of summons or other originating process, or notice of a writ or other process, is served pursuant to this rule and an official certificate of service is produced, an endorsement of service under Order 9, rule 15, is not required.

10 Validity of other service

The last preceding rule does not apply to, or render invalid or insufficient, a mode of service in a foreign country, with which a Convention has been made, which is otherwise valid or sufficient according to the procedure of the Court and which is not expressly excluded by the Convention made with that foreign country and extended to the Commonwealth.

11 Air mail

The Court or a Justice may for the purpose of effecting service give leave to transmit any document by air mail.

12 British subjects residing outside the Commonwealth

Where the party to be served outside the Commonwealth is a British subject, the Court or a Justice, upon being satisfied by affidavit:

(a) that the subject-matter of the proceeding is such that, under the provisions of this Order, the originating process was such as could properly be served outside the Commonwealth;

(b) that it was personally served upon the party, or that reasonable efforts were made to effect personal service of it upon the party and that it came to his knowledge; and

(c) that he wilfully neglects to appear in the proceeding, 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 may proceed in such manner, and subject to such conditions, as the Court or a Justice thinks fit.

13 Actions under Civil Aviation (Carriers’ Liability) Act 1959

(1) The provisions of this rule apply in any case where, for the purpose of an action brought by virtue of the Civil Aviation (Carriers’ Liability) Act 1959, leave is given to serve notice of a writ of summons upon a defendant (other than the Commonwealth), being:

(a) a Party to the Convention as defined by section 10 of that Act; or

(b) a High Contracting Party to the Convention as defined by section 20 of that Act.

(2) The notice shall specify the time for entering an appearance as limited in pursuance of rule 4 of this Order.

(3) The notice shall be sealed with the Office Seal and shall be transmitted to the Attorney-General, together with:

(a) a copy of the notice translated into the language of the country of the defendant; and

(b) a request, in the form numbered 7 in the First Schedule, with such variations as the circumstances require, for the further transmission of the notice and the copy to the government of that country.

(4) The party bespeaking a copy of a document for service under this rule shall, at the time of bespeaking the copy, file a praecipe in the form numbered 8 in the First Schedule.

(5) An official certificate transmitted by the Attorney-General to the Court certifying that the notice was delivered on a specified date to the government of the country of the defendant, shall be deemed to be sufficient proof of service and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these rules in that behalf.

(6) After entry of appearance by the defendant or, if no appearance is entered, after the expiry of the time limited for appearance, the action may proceed to judgment in all aspects as if the defendant had, for the purposes of the action, waived all privilege and submitted to the jurisdiction of the Court.

(7) Where it is desired to serve or deliver a summons, order, notice or other document in the proceedings on the defendant outside the Commonwealth, the provisions of this rule apply, with such variations as the circumstances require.

14 Power of Court to cause persons to be informed

These rules do not in any way prejudice or affect the practice or power of the Court under which, when lands, funds, choses in action, rights or property within the Commonwealth are sought to be dealt with or affected, the Court may, without affecting to exercise jurisdiction over a person outside the Commonwealth, cause that person to be informed of the proceedings with a view to that person having an opportunity of opposing, claiming or otherwise intervening.

Order 11 Appearance

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1 Appearance in Registry

Except in cases otherwise provided for by these rules of the High Court of Australia Act 1979 or the Judiciary Act, a defendant shall enter his appearance in the Registry out of which the writ or other originating process was issued.

2 Where defendant does not reside etc in district

Where a defendant does not reside or carry on business in the State or Territory in which the Registry out of which the process was issued is situated, he may appear either in that Registry or in the Principal Registry.

3 Mode of entering appearance; memorandum and duplicate

(1) A defendant shall enter his appearance to a writ of summons or other originating process, to which an entry of an appearance is required, by delivering to the proper officer:

(a) a memorandum of appearance in writing dated on the day of its delivery containing the name of the defendant’s solicitor or stating that the defendant defends in person; and

(b) a duplicate of the memorandum of appearance.

(2) The officer shall:

(a) seal the memorandum of appearance and the duplicate memorandum of appearance with a seal bearing the words “Appearance entered” and showing the date on which the seal is affixed; and

(b) return the duplicate memorandum of appearance to the person entering the appearance.

(3) The duplicate memorandum of appearance so sealed shall be a certificate that the appearance was entered on the day indicated by the seal.

4 Conditional appearance

Where a defendant desires to object:

(a) to the jurisdiction;

(b) to the writ or other originating process; or

he may, before the time limited for appearance has expired, obtain leave from a Justice on an ex parte application to enter a conditional appearance.

5 Motion to set aside writ

A defendant, before appearing, may, without entering, or obtaining an order to enter, a conditional appearance, take out a summons or serve notice of motion:

(a) to set aside the writ or other originating process;

(b) to set aside the service upon him of the writ or other originating process or of notice of the writ or other originating process; or

6 Notice of entry to plaintiff

(1) A defendant shall, on the day on which he enters an appearance, give notice of his appearance, in the form numbered 16 or the form numbered 19 in the First Schedule, to the plaintiff’s solicitor or, if the plaintiff sues in person, to the plaintiff himself.

(2) The notice may be given either by notice in writing served at the address for service, or by pre-paid letter directed to that address and posted on the day of entering appearance in due course of post, and shall, in either case, be accompanied by a sealed duplicate memorandum of appearance.

7 Entry by defendant entitled to enter at Principal Registry

(1) Where a defendant is entitled to enter an appearance either at a District Registry or at the Principal Registry and he has entered it at the Principal Registry, the plaintiff shall, upon receipt of the notice and sealed duplicate memorandum of appearance referred to in the last preceding rule, forthwith give notice in writing to the defendant’s solicitor or, if the defendant appears in person, to the defendant himself, of a proper place, which is not more than three miles from the Principal Registry, to be his address for service, where notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the plaintiff.

(2) Notice under this rule may be given by serving it at the address for service of the defendant or by pre-paid letter directed to that address.

(3) A copy of the notice shall be filed by the plaintiff in the Principal Registry.

8 Defendant’s address for service

(1) The solicitor of a defendant appearing by a solicitor shall state in the memorandum of appearance his name and place of business or the name of his firm and its place of business.

(2) Where the place of business so stated is not more than three miles from the office of the Registry in which the appearance is entered, it shall be the address for service of the defendant.

(3) Where that place of business is more than three miles from the office of that Registry, the solicitor shall also state in the memorandum of appearance the address of a proper place, which is not more than three miles from that office, to be the address for service of the defendant.

9 Defendant in person

(1) A defendant appearing in person shall state in the memorandum of appearance his place of residence.

(2) Where his place of residence is not more than three miles from the office of the Registry in which he enters his appearance, it shall be his address for service.

(3) Where that place of residence is more than three miles from the office of that Registry, he shall also state in the memorandum of appearance the address of a proper place, which is not more than three miles from that office, to be his address for service.

10 Address for service

Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the defendant at his address for service.

11 Memorandum irregular, address fictitious

(1) Where a memorandum of appearance does not contain a proper address for service, it shall not be received.

(2) Where a memorandum of appearance contains an address for service which is illusory or fictitious, the appearance may be set aside by the Court or a Justice on the application of the plaintiff, and the plaintiff may be permitted to proceed by filing proceedings in the Registry in which the matter is then pending without further service.

12 Form of memorandum of appearance

A memorandum of appearance shall be in such of the forms numbered 14, 15, 18, 20, 21 and 22 in the First Schedule as is applicable, with such variations as the circumstances require.

13 Officer to enter memorandum

Upon receipt of a memorandum of appearance, the proper officer shall forthwith enter the appearance in the Cause Book or Court Book, as the case may be.

14 Appearance at Principal Registry to be notified to District Registry

Where a defendant is entitled to enter an appearance either at a District Registry or at the Principal Registry and he enters it at the Principal Registry, the Principal Registrar shall on the same day notify the Registrar of the District Registry by telegraph that the appearance has been entered.

15 Defendants appearing by same solicitor

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

16 Solicitor not entering appearance

Where a solicitor fails to enter an appearance or to put in bail or to pay money into Court in lieu of bail in an Admiralty action in rem in pursuance of his written undertaking so to do on behalf of a party, he is liable to attachment.

17 Bail bond in Admiralty actions

In an Admiralty action in rem, bail may be taken before:

(a) the Principal Registrar;

(c) a Commissioner to administer oaths for the purposes of the High Court or the Supreme Court of a State or Territory; or

(d) a Justice of the Peace or Notary Public;

and in every case the sureties shall justify.

18 Time for filing bond

(1) Except by consent, a bail bond shall not be filed until after the expiration of twenty-four hours from the time when a notice, containing the names and addresses of the sureties and of the Registrar, Commissioner, Justice of the Peace or Notary Public before whom the bail was taken, has been served upon the adverse solicitor.

(2) A copy of the notice, verified by affidavit, shall be filed with the bail bond.

19 Commissioner in certain cases not to take bail

A Commissioner, Justice of the Peace or Notary Public shall not take bail on behalf of a person for whom he, or a person in partnership with him, is acting as solicitor or agent.

20 Commission recoverable on taxation

(1) A commission or fee paid to a person becoming surety to a bail bond, or otherwise giving security, may be recovered on taxation.

(2) The amount of the commission or fee shall not, in the aggregate, exceed one per centum on the amount in which bail is given.

21 Time for appearance

(1) A defendant may appear at any time before judgment.

(2) Where a defendant appears after the time limited by the writ or other originating process for appearance, he shall on the same day give notice of his appearance to the plaintiff’s solicitor or, if the plaintiff sues in person, to the plaintiff himself.

(3) Unless the Court or a Justice otherwise orders, the defendant shall not be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the tenor of the writ or other originating process.

22 Admiralty intervention

In an Admiralty action in rem, a 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.

23 Recovery of land

A person not named as a defendant in a writ of summons for the recovery of land may, by leave of the Court or a Justice, appear and defend on filing an affidavit showing that he is in possession of the land either by himself or by his tenant.

24 Landlord appearing

A person appearing to defend an action for the recovery of land as landlord, in respect of property of which he is in possession only by his tenant, shall state in his appearance that he appears as landlord.

25 Recovery of land, person not named defendant

(1) Where a person not named as defendant in a writ of summons for the recovery of land has obtained leave of the Court or a Justice to appear and defend, he shall enter an appearance, in accordance with the preceding rules of this Order, entitled in the action against the party named in the writ as defendant, and shall forthwith give notice of that appearance to the plaintiff’s solicitor, or, if the plaintiff sues in person, to the plaintiff himself.

(2) In subsequent proceedings, that person shall be named as a party defendant to the action.

26 Recovery of land, limiting defence

(1) A person appearing to a writ of summons for the recovery of land is at liberty to limit his defence to a part only of the property mentioned in the writ.

(2) Where a person so limits his defence, he shall describe that part of the property to which he limits his defence in his memorandum of appearance or in a notice which shall be:

(a) entitled in the action;

(b) in the form numbered 17 in the First Schedule, with such variations as the circumstances require;

(d) served on the plaintiff within three days after appearance.

(3) An appearance, where the defence is not limited in accordance with this rule, shall be deemed an appearance to defend for the whole.

Order 12 Default of appearance

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1 Default of appearance by infant or person of unsound mind; notice of application

(1) Where an appearance has not been entered to a writ of summons or other originating process for a defendant who is an infant or a person of unsound mind, the plaintiff shall, before further proceeding against the defendant, apply to the Court or a Justice for an order that some proper person be assigned guardian of the defendant, by whom he may appear and defend.

(2) The order shall not be made unless it appears on the hearing of the application:

(a) that the writ of summons or other originating process was duly served; and

(b) that, after the expiration of the time allowed for appearance and at least seven clear days before the day in the notice named for hearing the application:

(i) notice of the application was served upon or left at the place of residence of the person with whom or under whose care the defendant was at the time of serving the writ of summons or other originating process; and

(ii) where the defendant is an infant not residing with or under the care of his father or guardian, and the Court or Justice at the time of hearing the application does not dispense with such service, notice of the application was served upon or left at the place of residence of the father or guardian, if any, of the infant.

(3) Where a guardian has been appointed, he has the same time for appearance after the service of the order on him as if it were a writ of summons.

2 Default of appearance generally

Where a defendant fails to appear to a writ of summons or other originating process and the plaintiff is desirous of proceeding upon default of appearance under any of the succeeding rules of this Order or under Order 15, rule 1, the plaintiff shall, before taking proceedings upon default, file an affidavit of service, or of notice in lieu of service, as the case may be.

3 Liquidated demand endorsed

Where 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 to the writ, the plaintiff may enter final judgment for a sum not exceeding the sum claimed by the writ, together with interest, if so claimed, to the date of the judgment, and costs.

4 Liquidated demand; several defendants

Where the writ of summons is endorsed for a debt or liquidated demand only, and there are several defendants, of whom one or more appears or appear to the writ, and another or others of them fails or fail to appear, the plaintiff may enter final judgment, as provided by the last preceding rule, against a defendant who has not appeared, and may issue execution upon that judgment without prejudice to his right to proceed with the action against a defendant who has appeared.

5 Detention of goods

(1) Where the writ is endorsed with a claim for pecuniary damages only, or for detention of goods, with or without a claim for pecuniary damages, and the defendant fails, or all the defendants, if more than one, fail, to appear to the writ, the plaintiff may enter interlocutory judgment.

(2) The value of the goods and the damages, or either of them, as the case may be, in respect of the causes of action disclosed by the endorsement on the writ of summons, shall be assessed by the Registrar unless the Court or a Justice otherwise directs.

(3) The Court or a Justice may order a statement of claim or particulars to be filed before an assessment of damages and may order that, instead of assessment by a Registrar, the value and amount of damages, or either of them, shall be assessed in a way which the Court or Justice directs.

6 Detention of goods; several defendants

(1) Where the writ is endorsed as in the last preceding rule mentioned, and there are several defendants of whom one or more appears or appear to the writ and another or others of them fails or fail to appear, the plaintiff may enter interlocutory judgment against a defendant so failing to appear.

(2) The value of the goods and the damages, or either of them, as the case may be, may be assessed, as against a defendant suffering judgment by default, at the time of the trial of the action or issue in the action against another defendant, unless the Court or a Justice otherwise directs.

(3) The Court or a Justice may order that, instead of an assessment by a Registrar or proceeding to trial, the value and amount of damages, or either of them, shall be assessed in a way which the Court or a Justice directs.

7 Detention of goods, damages and liquidated demand; final and interlocutory judgment

Where the writ is endorsed with a claim for pecuniary damages, or for detention of goods, with or without a claim for pecuniary damages, and is further endorsed for a debt or liquidated demand, and a defendant fails to appear to the writ, the plaintiff may enter:

(a) final judgment for the debt or liquidated demand, together with interest, if so claimed, to the date of judgment, and costs, against a defendant so failing to appear; and

(b) interlocutory judgment for the value of the goods and the damages, or either of them, as the case may be;

and proceed according to such of the preceding rules of this Order as are applicable.

8 Recovery of land

Where, in an action for the recovery of land:

(a) an appearance is not entered within the time limited by the writ for appearance; or

(b) an appearance is entered but the defence is limited to part only of the property;

the plaintiff may enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part to which the defence does not apply, as the case may be.

9 Other claims

Where the plaintiff has endorsed upon a writ for the recovery of land any other claim, he may enter judgment as in the last preceding rule mentioned for the land and may proceed as in the other rules of this Order mentioned as to that other claim so endorsed.

10 Plaintiff not proceeding — judgment for costs

(1) Where, in a case to which rules 3 to 8 (inclusive) of this Order do not apply, the defendant fails, or all the defendants, if more than one, fail, to appear, and the plaintiff informs the Court that by reason of payment, satisfaction, abatement of nuisance, or for any other reason he does not desire to proceed, he may, by leave of the Court or a Justice, enter judgment for costs.

(2) Leave under the last preceding subrule shall be obtained on summons in Chambers and the summons shall be filed and served in the manner in which the service of the writ or other originating process was effected or in such other manner as the Court or a Justice directs.

11 Setting aside judgment

Where judgment is entered pursuant to a preceding rule of this Order, the Court or a Justice may set aside or vary that judgment upon just terms.

12 Action in District Registry; time for entering judgment

Where a defendant fails to appear to a writ of summons or other originating process issued out of a District Registry, and the defendant had the option of entering an appearance either in the District Registry or in the Principal Registry, the plaintiff shall not enter judgment for want of appearance until after such time as a letter posted in Melbourne on the day after the day on which the time for appearance expired ought, in due course of post, to have reached him.

13 Default of appearance in cases not otherwise specially provided for

Where, in cases not by the rules of this Order otherwise specially provided for, the party served with the writ or other originating process does not appear within the time limited for appearance, upon the filing by the plaintiff of:

(a) a proper affidavit of service; and

(b) where the writ is not specially endorsed under Order 13, rule 1 or accompanied by or endorsed with a statement of claim under Order 21, rule 1 — a statement of claim;

the proceeding may continue as if that party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 15.

14 Default in Admiralty action

Where, in an Admiralty action in rem, the defendant does not appear within the time limited for appearance, upon the filing by the plaintiff of:

(a) a proper affidavit of service;

(b) where the writ is not specially endorsed under Order 13, rule 1, or accompanied by or endorsed with a statement of claim under Order 21, rule 1, a statement of claim; and

the action may, on the expiration of twenty-one days from the service of the writ, be set down for judgment by default.

15 Default in Admiralty action

Where an Admiralty action in rem, upon default of appearance, comes before a Justice, he may, if satisfied that the plaintiff’s claim is well founded:

(a) pronounce for the claim with or without a reference to a Registrar, or to a Registrar assisted by merchants;

(b) order the property to be appraised and sold, with or without previous notice, and the proceeds to be paid into court; or

16 Default of appearance to originating summons

(1) Where a defendant or respondent to an originating summons to which an appearance is required to be entered fails to appear within the time limited, the plaintiff may apply to the Court or a Justice for an appointment for the hearing of the summons.

(2) Upon a certificate that an appearance has not been entered, the Court or Justice shall appoint a time for the hearing of the summons upon such conditions (if any) as it or he thinks fit.

17 Judgment against one not to prejudice right against other defendant

Where a plaintiff enters judgment under the provisions of this Order against a defendant who fails to appear, that entry of judgment does not, nor does the issue of execution on the judgment, prejudice his right to proceed against another defendant.

Order 13 Summary relief

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1 Special endorsement

(1) This Order applies to actions:

(a) in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising:

(i) upon a contract, express or implied (as, for instance, on a bill of exchange, promissory note or cheque, or other simple contract debt);

(ii) on a bond or contract under seal for payment of a liquidated amount of money;

(iii) on a statute, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty;

(iv) on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand; or

(v) on a trust;

(b) in which a landlord seeks to recover possession of land, with or without a claim for rent or mesne profits, against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such a tenant;

(c) in which the plaintiff seeks to recover possession of a specific chattel with or without a claim for hire thereof or for damages for its detention;

(d) in which the plaintiff claims possession of property forming a security for the payment of money; and

(e) for damages, other than actions for libel, slander, malicious prosecution, false imprisonment or breach of promise of marriage, or in which fraud is alleged by the plaintiff.

(2) In an action to which this Order applies, the writ may, at the option of the plaintiff, be specially endorsed with his claim as in the forms numbered 2 and 4 in the First Schedule, with such variations as the circumstances require.

2 Judgment on writ specially endorsed under O. III r. 4

(1) Where the defendant has appeared to a writ of summons in an action to which this Order applies, the plaintiff may, on affidavit made by himself or by another person who can swear positively to the facts, verifying the cause of action and the amount claimed (if a liquidated sum is claimed) and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to a Justice for leave to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to.

(2) The Justice may thereupon, unless the defendant satisfies him that he has a good defence to the action on the merits, or discloses such facts as may be deemed sufficient to entitle him to defend the action generally, make an order empowering the plaintiff to enter such judgment as is just, having regard to the nature of the remedy or relief claimed.

(3) On the hearing of an application under this rule, the Justice may, if he thinks fit, amend the endorsement on the writ in any manner, whether the writ be sufficiently endorsed or not.

(4) Where, on the hearing of an application under this rule, it appears that a claim which should not have been specially endorsed under this Order has been included in the endorsement on the writ, the Justice may, if he thinks fit, forthwith amend the endorsement by striking out that claim, or may deal with the claim specially endorsed as if no other claim had been included in the endorsement, and allow the action to proceed with respect to the residue of the claim.

(5) Where the plaintiff’s claim is for the delivery up of a specific chattel (with or without a claim for its hire or for damages for its detention), a Justice may make an order for the delivery up of the chattel without giving the defendant an option of retaining it upon paying its assessed value.

3 Application by summons

(1) An application by the plaintiff for leave to enter final judgment under the last preceding rule shall be made by summons returnable not less than three clear days after service.

(2) Copies of the affidavits and exhibits to be used upon the hearing of the summons shall be served with the summons.

4 Defendant may show cause

(1) The defendant may shew cause against the application by affidavit or, except in actions for the recovery of land or for the delivery up of a specific chattel, by offering to bring into Court the sum endorsed on the writ.

(2) The affidavit shall state whether the defence alleged goes to the whole or to part only, and (if so) to what part, of the plaintiff’s claim.

5 Examination of witnesses

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

6 Judgment for part of claim

(1) Where it appears that the defence set up by the defendant applies only to a part of the plaintiff’s claim, or that a part of his claim is admitted, the plaintiff is entitled to judgment forthwith for such part of his claim as the defence does not apply to or as 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 or Deputy Marshal, the taxation of costs, or otherwise, as the Justice thinks fit.

(2) The defendant may defend as to the residue of the plaintiff’s claim.

7 Where one defendant has good defence, but other not

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

8 Leave to defend

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

9 Summary disposal

Upon the hearing of the application, with the consent of all parties, the Justice may dispose of the whole action in a summary manner.

10 Assessment of damages

(1) Where, in a claim for unliquidated damages, the plaintiff has entered interlocutory judgment, the Registrar shall, subject to the next succeeding subrule, assess the value of the goods claimed or the damages to be awarded.

(2) The Court or a Justice may order that, instead of assessment by a Registrar, the value and amount of damages, or either of them, shall be ascertained in a way which the Court or Justice directs.

11 Directions as to trial

(1) Where leave, whether conditional or unconditional, is given to defend, the Justice may:

(a) give such directions as to the further conduct of the action as might be given on a summons for directions under Order 31;

(b) direct that the affidavit filed by the defendant under this Order shall serve in lieu of defence;

(d) define the issues that are to be tried.

(2) Where the plaintiff has obtained leave to enter final judgment subject to a suspension of execution pending the trial of a counterclaim, this rule applies to the counterclaim as if it were an action.

12 Relief from forfeiture

A tenant has the same right to relief, after a judgment under this Order for recovery of land on the ground of forfeiture for non‑payment of rent, as if the judgment had been given after trial.

13 Fresh application

Where 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.

Order 14 Summary judgment for specific performance

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1 Judgment on writ for specific performance

(1) Where the defendant has appeared to a writ of summons endorsed with a claim for specific performance of a contract in writing for sale or purchase of property, the plaintiff may, on affidavit made by himself or by another person who can swear positively to the facts, verifying the cause of action and stating that in his belief there is no defence to the action, apply to a Justice for an order for specific performance of the contract and for such consequential accounts, inquiries and directions as to payment of purchase money, interest, damages and costs, or otherwise, as the case requires.

(2) The Justice may thereupon, unless the defendant, by affidavit or by his own viva voce evidence, or otherwise, satisfies him that he has a good defence to the action on the merits or discloses such facts as are deemed sufficient to entitle him to defend, make such order as is just.

2 Application by summons

(1) An application by the plaintiff under the last preceding rule shall be made by summons returnable not less than three clear days after service.

(2) Copies of the affidavits and exhibits to be used upon the hearing of the summons shall be served with the summons.

3 Defendant may show cause

The defendant may shew cause against the application by affidavit.

4 Examination of witnesses

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

5 Leave to defend

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

6 Directions as to trial

Where leave, whether conditional or unconditional, is given to defend, the Justice may:

(a) give directions limiting the time within which pleadings are to be delivered and as to any interlocutory matter; and

(b) order the action to be set down for trial forthwith or at such date as he thinks proper.

7 Summary disposal

Upon the hearing of the application, with the consent of all parties, the Justice may dispose of the whole action in a summary manner.

Order 15 Application for an account

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1 Order for account

Where:

(a) a writ of summons has been endorsed for an account under Order 3, rule 5, or the endorsement on a writ of summons involves taking an account; and

(b) the defendant fails to appear, or does not, after appearance, by affidavit or otherwise, satisfy the Court or a Justice that there is some preliminary question to be tried;

an order for the proper accounts, with all necessary inquiries and directions, shall forthwith be made.

2 Application, how made

(1) An application for an order under the last preceding rule may be made at any time after the time for appearance has expired.

(2) Where the defendant has failed to appear, the application may be made ex parte.

(3) Where the defendant has appeared, the application shall be made by summons supported by an affidavit stating concisely the grounds of the claim to an account.

3 Judgment without pleadings

(1) In an action in which an account has been taken under the preceding rules of this Order, the plaintiff may, at any time after the account has been taken, apply to the Court by motion for judgment in a summary way.

(2) The Court shall thereupon proceed to hear and determine the action and give such judgment as is just.

4 Evidence

Unless the Court otherwise directs, the motion shall be heard upon affidavit and the Court may give such directions as it thinks just for the trial of any question arising on the motion.

5 Action may be directed to proceed in usual course

On an application for summary judgment under the two last preceding rules, the Court may refuse to give judgment on the motion and may direct the action to proceed in the usual manner.

Order 16 Parties

I Generally

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

(1) Where:

(a) a right to relief in respect of, or arising out of, the same transaction or series of transactions is alleged to exist in more than one person, whether jointly, severally or in the alternative; and

(b) if those persons brought separate proceedings a common question of law or fact would arise;

those persons may be joined in one proceeding as plaintiffs.

(2) Where, upon the application of a defendant, it appears that the joinder may embarrass or delay the trial or hearing, the Court or a Justice may order separate trials or hearings, or make such other order as is expedient, and judgment may be given for such one or more of the plaintiffs as are found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment.

(3) The defendant, though unsuccessful, is entitled to his costs occasioned by so joining a person who is not found entitled to relief, unless the Court or a Justice, in disposing of the costs, otherwise directs.

2 No other proceeding to be brought for same claim

Another proceeding shall not be brought against the defendant by a person so joined as plaintiff in respect of the same cause of action unless by leave of the Court or a Justice.

3 Proceeding in name of wrong plaintiff

Where a proceeding has been commenced in the name of the wrong person as plaintiff, or it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Justice, if satisfied that:

(a) it has been so commenced through a bona fide mistake; and

(b) it is necessary for the determination of the real matter in dispute so to do;

may order another person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as are just.

4 Misjoinder and non-joinder

(1) A proceeding shall not be defeated by reason of misjoinder or non‑joinder of parties, and the Court or a Justice may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it or him.

(2) The Court or a Justice may:

(a) at any stage of the proceedings;

(b) either upon or without the application of a party; and

order that the names of parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court or Justice may be necessary in order to enable the Court or Justice effectually and completely to adjudicate upon and settle all the questions arising, be added.

(3) A party whose name is so added as defendant shall be served with the amended writ of summons or other originating process, or notice of the amended writ or other process in lieu of service, as the case may be, in accordance with this Order, or in such manner as is prescribed by a special order, and the proceedings as against that party shall be deemed to have begun only on the service of the writ or other originating process or notice.

5 Consent of plaintiff or next friend

A person shall not be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under a disability, without his own consent in writing.

6 Counterclaim — misjoinder

Where a person has been improperly or unnecessarily joined as a co-plaintiff, the defendant may rely upon a counterclaim or set-off against the plaintiffs properly joined and shall not be deemed thereby to have waived any objection to the misjoinder.

7 All persons may be joined as defendants

Where a right to relief is alleged to exist against more than one person, whether jointly, severally or in the alternative, those persons may be joined as defendants and judgment may be given against such one or more of them as are found to be liable, according to their respective liabilities, without any amendment.

8 Defendant need not be interested in all the relief

(1) It is not necessary that every defendant be interested as to all the relief prayed for, or as to every cause of action included in a proceeding against him.

(2) The Court or a Justice may make such order as appears just to prevent a defendant from being embarrassed, or put to expense, by being required to attend proceedings in which he has no interest.

9 Joinder of persons severally, or jointly and severally liable

The plaintiff may, at his option, join as parties in the same proceeding 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.

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

Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in accordance with these rules or as the Court or a Justice may direct, join two or more persons as defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, and as to what relief the plaintiff is entitled to, may be determined in the proceedings as between all parties.

11 Trustees, executors etc may sue and be sued in respect of estate

(1) Trustees, executors and administrators may sue and be sued in respect of the property or estate which they hold as such, without joining any of the persons beneficially interested in the trust property or estate, and shall be considered as representing those persons.

(2) The Court or a Justice may, at any stage of the proceedings, order any of the persons beneficially interested to be made parties, either in addition to, or in lieu of, the previously existing parties.

(3) This rule extends and applies to trustees, executors, and administrators suing or sued in proceedings to enforce a security by foreclosure or otherwise.

12 Numerous persons

Where there are seven or more persons having the same interest, one or more of those persons may sue or be sued, or may be authorized by the Court or a Justice to defend on behalf of, or for the benefit of, all persons so interested.

13 Power to approve compromise

(1) Where:

(a) a compromise is proposed in proceedings concerning:

(i) the estate of a deceased person;

(ii) property subject to a trust; or

(iii) the construction of a written instrument;

(b) some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons); and

(c) there is some other person in the same interest before the Court who assents to the compromise, or on whose behalf the Court sanctions a compromise, or the absent persons are represented by a person appointed under rule 44 of this Order who so assents;

the Court or Justice, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons.

(2) The absent persons shall be bound by the order unless it has been obtained by fraud or non-disclosure of material facts.

14 Application to add or strike out

An application to add, strike out or substitute a plaintiff or defendant may be made to the Court or a Justice at any time before the trial or hearing by motion or summons, or at the trial or hearing in a summary manner.

15 Where defendant added

(1) Where a defendant is added or substituted, the writ of summons or other originating process shall be amended accordingly.

(2) The plaintiff shall, unless otherwise ordered by the Court or a Justice:

(a) file a copy of the writ or other originating process as amended; and

(b) serve the new defendant and all other parties with the amended writ or other originating process, or notice in lieu of service of the amended writ or other process, in the same manner as original defendants are served.

(3) The proceedings shall be continued as if the new defendant had originally been made a defendant.

16 Actions under Act and Convention

In an action under the Carriage by Air Act 1935 and the Convention set out in the Schedule to that Act, a High Contracting Party to the Convention who, for the purposes of that action, and by virtue of that Act, is deemed to have submitted to the jurisdiction of the Court, may, subject to and in accordance with these rules, be made a defendant.

17 Initial letters may be used

(1) Subject to the next succeeding subrule, where, in any proceedings, a person (including a party to the proceedings) is referred to in a writ, pleading or other document, the first name or other name or names (other than the surname) of that person may be designated in that writ, pleading or other document by an initial letter or letters or other contraction.

(2) Where the name of a person is so designated, it shall be averred in the writ, pleading or other document that that name is unknown to the party using the initial letter or letters or other contraction.

II Persons under Disability

18 Proceedings by infants

(1) An infant may sue as plaintiff by his next friend.

(2) An infant may defend in a proceeding by his guardian appointed for that purpose.

19 Persons of unsound mind

(1) A person of unsound mind may sue as plaintiff in a proceeding by the committee, if any, of his person or estate, as the case may be, or, where there is no such committee, by his next friend.

(2) A person of unsound mind may defend by his committee, if any, or, where there is no such committee, by his guardian appointed for that purpose.

20 Appearance by infant

(1) An infant shall not enter an appearance except by his guardian ad litem.

(2) An order for the appointment of the guardian is not necessary, but the solicitor applying to enter the appearance shall make and file an affidavit in the form numbered 23 in the First Schedule, with such variations as the circumstances require.

21 Guardian ad litem

(1) Where the appointment of a special guardian is not provided for, an infant served with a petition, notice of motion or summons shall appear on the hearing thereof by a guardian ad litem.

(2) An order for the appointment of the guardian ad litem is not necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last preceding rule.

22 Other cases

Where proceedings are directed to be continued by or against an infant, or an infant may attend proceedings, he shall appear as in the last preceding rule.

23 Next friend or relator

Before the name of a person is used as next friend of an infant or other party, or as relator, that person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed in the Principal Registry or, where the proceeding is pending in a District Registry, in that District Registry.

24 Consent of persons under disability to procedure

In proceedings to which an infant or person of unsound mind, or person under any other disability, is a party, a consent as to the mode of taking evidence or as to any other procedure shall, if given with the approval of the Court or a 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 that party were under no disability and had given that consent.

25 Removal and appointment of next friend or guardian ad litem

(1) The Court or a Justice may, for sufficient cause shewn, remove a next friend or guardian ad litem.

(2) Where, for any reason, there is not a 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 next friend or guardian ad litem of the infant.

III Proceedings by and against Poor Persons

26 Suing or defending as poor person

The Court or a Justice may allow a person to sue or defend in, or be a party to, a proceeding in the Court as a poor person on proof:

(a) that, excluding his wearing apparel, tools of trade and the subject-matter of the proceeding, he is not worth a sum exceeding Two hundred dollars or, in special circumstances, a sum not exceeding Four hundred dollars;

(b) that his usual income from all sources does not exceed Eighteen dollars a week; and

27 Disqualification

Except under special circumstances, a person may not sue, defend or become a party as a poor person if he has directly or indirectly paid or agreed to pay a sum of money, or has given or agreed to give a security, to a legal practitioner or to another person for the conduct of the proceedings in the Court.

28 Case before counsel

Where a person desires to sue, defend or become a party in proceedings as a poor person, he shall lay a case before counsel for his opinion as to whether or not he has reasonable grounds for suing, defending or becoming a party, as the case may be.

29 Affidavit in support of application

A person may not sue, defend or become a party as a poor person unless he or his solicitor produces to the Court or Justice to whom the application is made the case laid before counsel for his opinion and his opinion on the case with an affidavit (referring to the case as an exhibit) of the party or his solicitor which:

(a) states that the case contains a full and true statement of all the material facts to the best of his knowledge and belief;

(b) denies that the applicant has directly or indirectly paid or agreed to pay a sum of money, or has given or agreed to give a security, to a legal practitioner or to another person for the conduct of the proceedings in the Court or states fully the special circumstances relied upon in excuse; and

(c) gives full information and particulars as to the assets and liabilities of the applicant, his income from all sources, the persons dependent upon him and the nature and extent of the dependency of each of them respectively.

30 No Court fees payable

A person allowed to sue, defend or become a party as a poor person is not liable to pay Court fees.

31 Order to be filed

Upon obtaining the order allowing him to sue, defend or become a party as a poor person, the applicant or his solicitor shall, before taking any other step in the proceeding, file the order in the Principal Registry or, where the proceeding has been or is intended to be commenced in a District Registry, in that District Registry.

32 Memorandum of filing

(1) On the filing of the order, a memorandum of the filing bearing the seal of the Registry where the order is filed shall be issued to the applicant or his solicitor.

(2) In subsequent proceedings the production of the memorandum is sufficient evidence that the order has been duly filed.

33 Assignment of counsel or solicitor

(1) Where a person is allowed to sue, defend or become a party as a poor person, the Court or a Justice may, if necessary, assign counsel or a solicitor, or both, to assist him.

(2) Counsel or solicitor so assigned may not refuse or discontinue his assistance unless he satisfies the Court or a Justice that he has some good reason for so refusing or discontinuing or unless, in the case of counsel, he satisfies the solicitor that other counsel can be briefed in the proceedings without prejudice to the conduct of the proceedings.

(3) Except as provided in this Order, a fee is not payable by a poor person to his assigned counsel or solicitor.

34 Prohibition of fees

(1) Where a person intends to apply to be allowed to sue, defend or become a party as a poor person, a person who, with knowledge of that intention, takes or agrees to take or seeks to obtain from him a payment, fee, profit or reward for the conduct of the proceedings in the Court, is guilty of contempt of Court.

(2) While a person sues, defends or is a party as a poor person, a person who, except as provided by this Order, takes or agrees to take or seeks to obtain from him a payment, fee, profit or reward for the conduct of the proceedings in the Court is guilty of contempt of Court.

(3) If a poor person makes or gives or agrees to make or give a payment, fee, profit or reward for the conduct of the proceedings in the Court otherwise than as provided by this Order, an order shall forthwith be made revoking the order allowing him to sue, defend or be a party as a poor person, as the case may be, and he may not afterwards again in the same matter sue, defend or be a party as a poor person unless otherwise ordered.

35 Revoking order

(1) The Court or a Justice may at any time, and whether or not an application is made by another party or person for that purpose, revoke the order allowing a person to sue or defend or be a party as a poor person.

(2) Upon the revocation, the poor person is not entitled to the benefit of this Order in a proceeding to which the order relates unless otherwise ordered.

36 Settlement etc and discharge of solicitor

(1) A poor person, a solicitor conducting the proceedings for him or counsel briefed on his behalf shall not, whether before or after the commencement of the proceedings, enter into a settlement or compromise of the proceedings, or discontinue them, without the leave of the Court or a Justice.

(2) A poor person shall not discharge a solicitor or counsel acting for him without the leave of the Court or a Justice.

37 Alteration in means of poor person

(1) Where a poor person becomes possessed of or entitled to assets or income beyond those stated in the affadavit made by him or his solicitor in pursuance of rule 29 of this Order, he shall forthwith and from time to time report the matter to the solicitor conducting the proceedings for him.

(2) When the matter comes to the knowledge of the solicitor, whether by means of the report or otherwise, he shall forthwith make and file an affidavit embodying that information.

38 Solicitor to sign notices etc

(1) Except for the discharge of his solicitor, a poor person, or a person acting on his behalf, shall not:

(a) serve a notice of motion;

(b) make an application;

(d) present a petition;

unless it is signed by his solicitor.

(2) The solicitor assigned to a poor person shall take care that, without good cause:

(a) a notice is not served;

(b) an application is not made;

(d) a petition is not presented.

39 Failure to proceed

(1) Notwithstanding that an order has not been made revoking the order allowing a poor person to sue, defend or be a party as a poor person, where he omits to proceed, he may be called upon by notice of motion or summons to shew cause to the Court or a Justice why he should not pay costs and why further proceedings should not be stayed until the costs have been paid.

(2) On the hearing of the notice of motion or summons, the Court or a Justice may make such order as seems just.

40 Costs — poor persons

(1) A poor person is not entitled to receive costs from another party unless the Court or a Justice orders that he is so entitled.

(2) The Court or a Justice may order the out-of-pocket expenses of a poor person to be paid by another party and, where such an order is made, it shall be deemed to include all out-of-pocket expenses properly incurred in the course of the proceedings but not office expenses or fees of counsel.

(3) Where it appears to the Court or a Justice that another party has acted unreasonably in bringing, defending or intervening in the proceedings or in his conduct of them, or that the special circumstances of the case require it, the Court or a Justice may order that other party to pay the costs of a poor person, including profit costs or a proportion, or sum of money in respect, of profit costs, in addition to out-of-pocket expenses properly incurred in the course of the proceedings.

(4) Where it appears to the Court or a Justice that proceedings are of such length or difficulty as to throw an unusual burden on the solicitor acting for a poor person, the Court or a Justice may order the other party to pay, in addition to out-of-pocket expenses properly incurred in the course of the proceedings, such sum as the Court or a Justice thinks fit in respect of that unusual burden.

(5) Where an order to pay costs is made under either of the two last preceding subrules of this rule, the order shall not be enforced without leave of the Court or a Justice, and the Court or a Justice may refuse leave if satisfied by the party ordered to pay the costs that he has not the means (including insurance or other indemnity) to pay them.

(6) Out-of-pocket expenses and other costs ordered to be paid to a poor person shall, unless the order fixes their amount or the Court or a Justice otherwise directs, be taxed as in other cases.

41 Liability of poor person for costs

Unless the Court or a Justice otherwise orders, a poor person is not liable to pay costs to another party.

42 Costs where order obtained by fraud

(1) Where it appears to the Court or a Justice that the order allowing a person to sue or defend or be a party as a poor person was obtained by fraud or misrepresentation, the Court or Justice may order that person to pay the costs of another party.

(2) Where such an order is made, the costs shall be taxed as if the party ordered to pay them were not a person in whose favour an order allowing him to sue, defend or be a party as a poor person had been made.

43 Costs to solicitor from proceeds of action

(1) Subject to the next succeeding subrule, the Court or a Justice may order to be paid to the solicitor for a poor person out of money recovered by that poor person, or may charge in favour of the solicitor upon real or personal property recovered by the poor person, such sum in respect of costs (including a fee to counsel which is reasonable in the circumstances) as would have been allowed to the solicitor on taxation between himself and his client if he had been retained by his client in the ordinary manner, less such amount as may be recovered by way of costs from another party, or such other sum in respect of costs as to the Court or a Justice seems fit.

(2) The total amount so to be paid out for profit costs, or so charged upon property for profit costs, shall not in either case exceed one fourth of the amount or value recovered and remaining after the deduction from that amount or value of all proper disbursements made by the solicitor.

(3) In this rule, money recovered and property recovered include respectively money recovered and property recovered by virtue of a settlement or compromise.

IV Administration and Execution of Trusts

44 Appointment of person to represent next of kin or a class

(1) Where:

(a) the right of the next of kin, or a class, depends upon the construction which the Court or a Justice may put upon an instrument; and

(b) it is not known, or is difficult to ascertain, who is or are that next of kin or class; and

(c) the Court or a Justice considers that, in order to save expense or for some other reason, it is convenient to have the questions of construction determined before that next of kin or class have been ascertained by means of inquiry or otherwise;

the Court or Justice may appoint a person to represent the next of kin or class, and the judgment of the Court or Justice in the presence of that person is binding upon the next of kin or class so represented.

(2) In any other case where next of kin, or a class, is interested in proceedings, the Court or Justice may (if it appears expedient by reason of the nature and extent of the interest of, and the difficulty of ascertaining, those persons, or any of them, or in order to save expense) appoint a person to represent all or any of the next of kin or class, and the judgment or order of the Court or Justice in the presence of the person so appointed is binding upon the persons so represented.

45 Residuary legatee and next of kin

Where a residuary legatee or next of kin is entitled to a judgment or order for the administration of the personal estate of a deceased person, he may have the judgment or order without serving the remaining residuary legatees or next of kin.

46 Person interested in proceeds of realty

Where:

(a) a legatee is interested in a legacy charged upon real estate; or

(b) a person is interested in the proceeds of real estate directed to be sold;

and that legatee or that person is entitled to a judgment or order for the administration of the estate of a deceased person, the legatee or person may have the judgment or order without serving any other legatee or person interested in the proceeds of the estate.

47 Residuary devisee or next of kin

Where a residuary devisee or next of kin is entitled to a judgment or order for the administration of the estate of a deceased person, he may have that judgment or order without serving a co-residuary devisee or other next of kin.

48 Cestuis que trust

Where one of several cestuis que trust under a deed or instrument is entitled to a judgment or order for the execution of the trusts of the deed or instrument, he may have that judgment or order without serving any other cestui que trust.

49 Waste

In proceedings for the prevention of waste or otherwise for the protection of property, one person may sue on behalf of himself and other persons having the same interest.

50 Executor, administrator or trustee

Where an executor, administrator or trustee is entitled to a judgment or order against any one legatee, next of kin or cestui que trust for the administration of the estate or the execution of the trusts, he may have that judgment or order.

51 Notice of judgment to be served on certain persons and its effect

(1) Where, in a proceeding for the administration of the estate of a deceased person or the execution of the trusts of a deed or instrument, or for the partition or sale of hereditaments, a judgment or order has been pronounced or made:

(a) under Order 15 or Order 34; or

(b) affecting the right or interests of persons not parties to the action;

the Court or a Justice may direct that persons interested in the estate or under the trust or in the hereditaments shall be served with notice of the judgment or order.

(2) After service with notice of the judgment or order, those persons shall be bound by the proceedings in the same manner as if they had originally been made parties, and they may attend the proceedings under the judgment or order.

(3) A person so served may, within twenty-eight days after the service, apply to the Court or Justice to set aside or vary the judgment or order.

52 Order for liberty to attend not necessary, but appearance to be entered

A person served with notice of a judgment or order need not obtain an order for liberty to attend the proceedings under that judgment or order, but may attend the proceedings upon entering an appearance in the same manner, and subject to the same provisions, as a defendant entering an appearance.

53 Memorandum of service to be entered in the Registry

A memorandum of the service upon a person of notice of a judgment or order under rule 51 of this Order shall, upon due proof by affidavit of that service, be entered in the Registry in which the proceeding is pending.

54 Form of memorandum

Notice of a judgment or order served pursuant to rule 51 of this Order shall be entitled in the proceeding, and shall be endorsed with a memorandum in the form numbered 36 in the First Schedule.

55 Service of notice of judgment on infants etc

Service of a judgment or order, or of notice of a judgment or order, shall be effected on an infant or a person of unsound mind in the same manner as in the case of a writ of summons.

56 Court may appoint or dispense with legal personal representative

(1) Where in a proceeding it appears to the Court or a Justice that a deceased person who was interested has no legal personal representative, the Court or Justice may (on such notice to such persons, if any, as the Court or Justice thinks fit, either specially or generally by public advertisement) proceed in the absence of a person representing the estate of the deceased person, or may appoint some person to represent his estate for the purposes of the proceeding.

(2) An order made under this rule, and an order consequent on that order, shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the proceeding.

57 Administration — appearance at chambers in respect of creditor’s claims

(1) In a proceeding for the administration of the estate of a deceased person, a party (other than the executor or administrator) may not, unless by leave of the Court or a Justice, appear either in Court or in Chambers on the claim of a person, not a party to the proceeding, against the estate of the deceased person in respect of a debt or liability.

(2) The Court or a Justice may direct or allow another party to the proceeding to appear, either in addition to or in place of the executor or administrator, upon such terms as to costs, or otherwise, as it or he thinks fit.

Order 17 Third party procedure

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1 Third party procedure

(1) Where in an action a defendant claims as against a person not already a party to the action (in this Order called the third party):

(a) that he is entitled to contribution or indemnity;

(b) that he is entitled to relief or a remedy relating to or connected with the original subject-matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or

(c) that a question or issue relating to or connected with that subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any of them;

the Court or a Justice may give leave to the defendant to issue and serve a third party notice.

(2) The Court or Justice may give leave to issue and serve a third party notice on an ex parte application supported by affidavit or, where the Court or Justice directs a summons to the plaintiff to be issued, upon the hearing of the summons.

2 Form and issue of notice

(1) A third party notice shall state the nature and grounds of the claim or the nature of the question or issue sought to be determined and the nature and extent of any relief or remedy claimed.

(2) The notice shall be in accordance with form numbered 24 or form numbered 25 in the First Schedule, with such variations as the circumstances require, and shall be sealed and served on the third party in the same manner as a writ of summons is sealed and served.

(3) A copy of the notice shall be filed in the Registry in which the action is then pending.

(4) The notice shall, unless otherwise ordered by the Court or Justice, be served within the time limited for delivering the defence or, where the notice is served by a defendant to a counterclaim, the reply, and with it there shall be served a copy of the writ of summons and of any pleadings delivered.

3 Effect of notice

The third party shall, as from the time of the service upon him of the notice, be a party to the action with the same rights in respect of his defence against a claim made against him, and otherwise, as if he had been duly sued in the ordinary way by the defendant.

4 Appearance

(1) The third party may enter an appearance in the action within such number of days from service of the notice upon him as is directed by the Court or Justice and specified in the notice.

(2) The third party shall give notice of appearance to the plaintiff and the defendant and any other party to the action in the same manner as if the third party notice were a writ of summons.

(3) Where a third party fails to appear within the time directed, he may apply to the Court or Justice for leave to appear, and that leave may be given upon such terms, if any, as the Court or Justice thinks fit.

5 Default by third party

If a third party duly served with a third party notice does not enter an appearance or makes default in delivering or pleading which he has been ordered to deliver:

(a) he shall be deemed to admit the validity of, and shall be bound by, a judgment given in the action (whether by consent or otherwise) and by a decision in the action on any question specified in the notice; and

(b) where contribution, indemnity or other relief or remedy is claimed against him in the notice, he shall be deemed to admit his liability in respect of that contribution, indemnity or other relief or remedy.

6 Where judgment by default against defendant

(1) Where a third party makes default in entering an appearance or delivering a pleading which he has been ordered to deliver and the defendant giving the notice suffers judgment by default, that defendant may, at any time, after satisfaction of the judgment against himself, or before such satisfaction by leave of the Court or a Justice:

(a) enter judgment against the third party to the extent of any contribution or indemnity claimed in the third party notice; and

(b) by leave of the Court or a Justice, enter such judgment in respect of any other relief or remedy claimed as the Court or a Justice directs.

(2) The Court or a Justice may set aside or vary a judgment entered against a third party under this rule upon such terms as are just.

7 Third party directions

(1) If a third party enters an appearance, the defendant giving notice may, after serving notice of the intended application upon the plaintiff, the third party and any other defendant, apply to the Court or a Justice for directions.

(2) The Court or Justice may:

(a) where the liability of the third party to the defendant giving the notice is established on the hearing of the
application — order such judgment as the nature of the case requires to be entered against the third party in favour of the defendant giving the notice;

(b) if satisfied:

(i) that there is a question or issue proper to be tried as between the plaintiff and the defendant and the third party, or between any of them, as to the liability of the defendant to the plaintiff or as to the liability of the third party to make any contribution or indemnity claimed, in whole or in part, or as to other relief or remedy claimed in the notice by the defendant; or

(ii) that a question or issue stated in the notice should be determined not only as between the plaintiff and the defendant but as between the plaintiff, the defendant and the third party, or any of them;

order that question or issue to be tried in such manner as the Court or Justice directs; or

(3) Directions given pursuant to this rule may:

(a) be given either before or after any judgment has been signed by the plaintiff against the defendant in the action;

(b) be varied from time to time; and

(4) The third party proceedings may at any time be set aside by the Court or a Justice.

8 Leave to defend

The Court or a Justice, upon the hearing of the application for directions, may, if it appears desirable to do so:

(a) give the third party liberty to defend the action, either alone or jointly with the original defendant, upon such terms as are just, or to appear at the trial and take such part in the trial as may be just; and

(b) order such proceedings to be taken, pleadings or documents to be delivered or amendments to be made, and give such directions, as to the Court or Justice appears proper, for having the question and the rights and liabilities of the parties most conveniently determined and enforced and as to the mode and extent in or to which the third party shall be bound or made liable by the decision or judgment in the action.

9 At trial

(1) Where the action is tried, the Justice who tries the action may, at or after the trial:

(a) enter such judgment as the nature of the case requires for or against the defendant giving the notice against or for the third party; and

(b) may grant to the defendant or to the third party any relief or remedy which might properly have been granted if the third party had been made a defendant to an action duly brought against him by the defendant.

(2) Execution shall not be issued without leave of the Court or a Justice until after satisfaction by the defendant of the judgment against him.

(3) Where the action is decided otherwise than by trial, the Court or Justice may, on application by motion or summons, make such order as the nature of the case requires, and, where the plaintiff has recovered judgment against the defendant, may order such judgment as is just to be entered for or against the defendant giving notice against or for the third party.

10 Costs

The Court or Justice may decide questions of costs as between a third party and other parties to the action, and may order any one or more of them to pay the costs of any other, or others, or give such directions as to costs as the Justice of the case requires.

11 Fourth and subsequent parties

(1) Where a third party makes, as against a person not already a party to the action, such a claim as is defined in rule 1 of this Order, the provisions of this Order regulating the rights and procedure as between the defendant and the third party apply, mutatis mutandis, as between the third party and that other person, and the Court or Justice may give leave to the third party to issue a third party notice, and the preceding rules of this Order apply, mutatis mutandis, and the expressions third party notice and third party apply to and include a notice so issued and a person served with the notice, respectively.

(2) Where a person served with a notice under this rule by a third party in turn makes such a claim as is defined in rule 1 of this Order against another person not already a party to the action, this Order, as applied by this rule, has effect with respect to that other person and any other further person or persons so served and so on successively.

12 Co-defendants

(1) Where a defendant claims against another defendant:

(a) that he is entitled to contribution or indemnity;

(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or

(c) that a question or issue relating to or connected with that subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant making the claim and should properly be determined, not only as between the plaintiff and the defendant making the claim, but as between the plaintiff and that defendant and another defendant or between any of them;

the defendant making the claim may, without leave, issue and serve on that other defendant a notice making that claim or specifying that question or issue.

(2) An appearance to the notice is not necessary and the same procedure shall be adopted for the determination of that claim, question or issue between the defendants as would be appropriate under this Order if such other defendant were a third party.

(3) This rule does not prejudice the rights of the plaintiff against any defendant to the action.

13 Counterclaim

Where a defendant makes a counterclaim against the plaintiff or against the plaintiff and other persons, the provisions of this Order apply as if the plaintiff or the plaintiffs and those other persons were defendants, and the defendant a plaintiff, in an action.

Order 18 Change of parties by death etc

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1 Proceeding not abated where cause of action continued

(1) Where the cause of action survives or continues, a proceeding does not become abated by reason of the marriage, death or bankruptcy of a party, and does not become defective by the assignment, creation or devolution of an estate or title pendente lite.

(2) Whether the cause of action survives or continues or not, there is no abatement of action by reason of the death of a party between the verdict of a jury, or finding of issues of fact by a jury, and the judgment, and judgment may in such case be entered, notwithstanding the death.

2 Order to carry on proceeding

(1) Where:

(a) by reason of marriage, death, bankruptcy or any other event occurring after the commencement of a proceeding and causing a change or transmission of interest or liability; or

(b) by reason of a person interested coming into existence after the commencement of the proceeding;

it becomes necessary or desirable that a person not already a party should be made a party or that a person already a party should be made a party in another capacity, an order that the proceeding be carried on between the continuing parties and that new party or parties may be obtained ex parte either by a continuing party or by a person who may be made a party on application to the Court or a Justice upon proof of:

(d) the person interested having come into existence.

(2) Where the party applying to be made a party as a plaintiff is an infant, the application shall be made by him by his next friend.

3 Service of order to continue proceeding

(1) An order obtained under the last preceding rule shall, unless the Court or a Justice otherwise directs, be served upon:

(a) the continuing party or parties or his or their solicitor or solicitors; and

(b) unless the person making the application be himself the only new party — upon each new party.

(2) Subject to the next two succeeding rules, the order shall, from the time of service, be binding on the persons served with the order, and a person so served who is not already a party shall enter an appearance to the order within the same time and in the same manner as if he had been served with the writ of summons or other originating process by which the proceeding was commenced.

(3) Before the service of the order, it shall be endorsed with a notice to every person to be served with it who is not already a party that an appearance must be entered by him and of the time within which, and the manner in which, the appearance must be entered.

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

Where a person who:

(a) is not under a disability;

(b) is not under a disability, other than coverture; or

is served with an order obtained under rule 2 of this Order, that person or his guardian ad litem, as the case may be, may apply to the Court or a Justice to discharge or vary that order at any time within fourteen days from the service of the order.

5 By person under disability having no guardian

(1) Where a person who is under a disability, other than coverture, and has not a guardian ad litem in the proceeding, is served with an order obtained under rule 2 of this Order, that person may, at any time within fourteen days from the appointment of a guardian ad litem for that person, apply by his guardian ad litem to the Court or a Justice to discharge or vary that order.

(2) Until the period of fourteen days has expired, the order shall have no force or effect as against that person.

6 Death of sole plaintiff or defendant

(1) Where:

(a) the plaintiff or defendant in a proceeding dies and the cause of action survives; and

(b) the person entitled to proceed fails to proceed;

the defendant, or the person against whom the proceeding may be continued, may apply by summons to compel the plaintiff, or the person entitled to proceed, to proceed within such time as is ordered.

(2) In default of such proceeding, judgment may be entered, with or without costs, for the defendant or, as the case may be, for the person against whom the proceeding might have been continued.

(3) Where judgment is so continued and the plaintiff has died, execution may issue as in the case provided for by Order 45,
rule 2.

7 Solicitor of plaintiff to give notice of abatement

(1) Where a proceeding becomes abated or there is a change of interest as provided for by this Order, the solicitor for the plaintiff or person having the conduct of the proceeding, as the case may be, shall certify the fact to the proper officer.

(2) The proper officer shall cause an entry of the abatement or the change of interest, as the case may be, to be made in the Cause Book or in the Court Book, as the case may be, opposite to the name of the proceeding.

8 Abated proceeding to be struck out

Where a proceeding has been standing for one year in the Cause Book or the Court Book marked as “abated”, or standing over generally, the proceeding shall, at the expiration of the year, be struck out of the Cause Book or the Court Book, as the case may be.

Order 19 Joinder of causes of action

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1 All causes of action may be joined

(1) Subject to this rule and the succeeding rules of this Order, the plaintiff may join in the same action several causes of action.

(2) Where it appears to the Court or a Justice that those causes of action, or any of them, cannot be conveniently tried or disposed of together, the Court or Justice may:

(a) order separate trials of any of those causes of action to be had; or

(b) make such other order as is necessary or expedient for the most convenient and expeditious separate trial and disposal of the several causes of action.

2 Claims of trustees in bankruptcy etc

A claim by a trustee in bankruptcy or a trustee under a deed of arrangement, composition, scheme of arrangement or deed of assignment shall not, unless by leave of the Court or a Justice, be joined with a claim in another capacity.

3 Husband and wife

Subject to rules 1, 6 and 7 of this Order, a claim by or against husband and wife may be joined with a claim by or against either of them separately.

4 Executor and administrator

Subject to rules 1, 6 and 7 of this Order, a claim by or against an executor or administrator as such may be joined with a claim by or against him personally if the claim by or against him personally is alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator.

5 Claims by joint plaintiffs

Subject to rules 1, 6 and 7 of this Order, a claim by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant.

6 Remedy for misjoinder

Where a defendant alleges that the plaintiff has joined in the same action several causes of action which cannot be conveniently disposed of together, the defendant may at any time apply to the Court or a Justice for an order confining the action to such of the causes of action as may be conveniently disposed of together.

7 Order for exclusion

Where, on the hearing of an application made under the last preceding rule, it appears to the Court or a Justice that the causes of action are such as cannot all be conveniently disposed of together, the Court or Justice may:

(a) order any of those causes of action to be excluded and consequential amendments to be made; and

(b) make such order as to costs as is just.

Order 20 Pleading generally

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1 Pleadings in High Court

The rules of pleading set out in this Order shall be used in the Court.

2 Delivery of pleadings — costs of prolix pleadings

(1) The plaintiff shall, in accordance with the provisions of Order 21, and at such time and in such manner as is prescribed in that Order, deliver to the defendant a statement of his claim and of the relief or remedy to which he claims to be entitled.

(2) The defendant shall, in accordance with the provisions of Order 22, and at such time and in such manner as is prescribed in that Order, deliver to the plaintiff his defence, set-off or counterclaim, if any.

(3) The plaintiff shall, in accordance with the provisions of Order 24, and at such time and in such manner as is prescribed in that Order, deliver his reply to the defence, set-off or counterclaim.

(4) The pleadings shall be as brief as the nature of the case admits, and the taxing officer, in adjusting the costs of the action, shall, at the instance of any party, or may, without a request, inquire into unnecessary prolixity and order the costs occasioned by that prolixity to be borne by the party chargeable with it.

3 Set-off and counterclaim

(1) By way of defence to a claim for a liquidated demand whether at law or in equity, a defendant may, unless the Court or a Justice otherwise orders, rely upon a set-off consisting of a liquidated demand at law or in equity.

(2) Subject to the provisions of Order 22, rule 14, a defendant in an action may set up by way of counterclaim against the claims of a plaintiff any right or claim, whether the counterclaim sounds in damages or not.

(3) The counterclaim 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 upon the original and upon the cross-claim.

4 Pleading to state material facts and not evidence

(1) A pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

(2) The pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each paragraph containing as nearly as may be a separate allegation.

(3) Dates, sums and numbers shall be expressed in figures and not in words.

(4) Where pleadings have been settled by counsel, they shall be signed by him, and if not so settled, they shall be signed by the solicitor, or by the party, if he sues or defends in person.

5 Particulars to be given where necessary

(1) Where the party pleading relies on a contract or on misrepresentation, fraud, breach of trust, wilful default or undue influence, and in other cases in which particulars are necessary, particulars, with dates and items if necessary, shall be stated in the pleading.

(2) Where the particulars are of debt, expenses or damages, and exceed three folios, the fact that they exceed three folios must be stated, with a reference to full particulars already delivered or to be delivered with the pleading.

(3) In an action for libel or slander, if the plaintiff alleges that the words or matter complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of that sense.

6 Further and better statement or particulars

A further and better statement of the nature of a claim or defence, or further and better particulars of a matter stated in a pleading, notice or written proceeding requiring particulars, may be ordered upon such terms as to costs, and otherwise, as is just.

7 Letter for particulars

(1) Before applying for particulars by summons or notice, a party may apply by letter for them and the costs of the letter and of particulars delivered pursuant to the letter shall be allowable on taxation.

(2) ln dealing with the costs of an application for particulars by summons or notice, the provisions of this rule shall be taken into consideration by the Court or Justice.

(3) Costs shall not be allowed on taxation of an application for particulars which is prolix, unreasonable or unnecessary.

8 Particulars before defence

Particulars of a claim shall not, under rule 6 of this Order, be ordered to be delivered before defence unless the Court or Justice is of opinion that they are necessary or desirable to enable the defendant to plead or ought, for any other special reason, to be so delivered.

9 Order for particulars when a stay

(1) The party at whose instance particulars have been delivered under a Justice’s order shall, unless the order otherwise provides, have the same length of time for pleading after the delivery of the particulars that he had at the return of the summons.

(2) Except as provided in this rule, an order for particulars does not, unless the order otherwise provides, operate as a stay of proceedings or give an extension of time.

10 Printing etc of pleadings

A pleading shall be printed, typewritten or written.

11 Delivery of pleadings

(1) A pleading or other document required to be delivered to a party shall be delivered at the address for service to the solicitor of a party who sues or appears by a solicitor, or to the party if he does not sue or appear by a solicitor.

(2) Where no appearance has been entered for a party, the pleading or document shall be deemed to be delivered to the party if it is filed in the Registry in which the proceeding is then pending.

12 Marking pleadings

(1) Every pleading shall be delivered between parties, and:

(a) shall be marked on the face with the date of the day on which it is delivered, the reference to the number of the action, the title of the action and the description of the pleading; and

(b) shall be endorsed with the name and place of business of the solicitor and agent, if any, delivering the pleading, or the name and address of the party delivering the pleading if he does not act by a solicitor.

(2) At the beginning of a statement of claim, there shall be a memorandum of the date of the issue of the writ.

13 “Not guilty by statute” abolished

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

14 Specific denial

Where an allegation of fact in a pleading:

(a) is not denied specifically or by necessary implication; or

(b) is not stated to be not admitted;

in the pleading of the opposite party, it shall be taken to be admitted, except as against an infant or a person of unsound mind.

15 Condition precedent

(1) A condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be.

(2) Subject to the last preceding subrule, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant is implied in his pleading.

16 What must be specially pleaded

The defendant or plaintiff, as the case may be, shall raise by his pleading:

(a) all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law; and

(b) such grounds of defence or reply, as the case may be, as, if not raised, would:

(i) be likely to take the opposite party by surprise; or

(ii) raise issues of fact not arising out of the preceding pleadings as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or a law requiring contracts to be made in or evidenced by writing.

17 Departure

A pleading of a party shall not, except by way of amendment, raise a new ground of claim or contain an allegation of fact inconsistent with the previous pleadings of that party.

18 Denial to be specific

It is not sufficient for a defendant in his defence to deny generally the allegations in the statement of claim, or for a plaintiff in his reply to deny generally the allegations in a defence by way of counterclaim, but each party shall deal specifically with each allegation of fact of which he does not admit the truth, except damages.

19 Joinder of issue

(1) Subject to the last preceding rule, the plaintiff by his reply may join issue upon the defence, and each party in his pleading, if any, subsequent to reply may join issue upon the previous pleading.

(2) The joinder of issue operates as a denial of every material allegation of fact in the pleading upon which issue is joined, but it may except facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted.

20 Evasive denial

(1) When a party in a pleading denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively, but shall answer the point of substance; thus, if it is alleged that he received a certain sum of money, it is not sufficient to deny that he received that particular amount, but he shall deny that he received that sum or any part of that sum, or set out how much he received.

(2) Where an allegation is made with divers circumstances, it is not sufficient to deny it along with those circumstances.

21 Denial of contract

Where a contract, promise or agreement is alleged in a pleading or particulars, a bare denial of that contract, promise or agreement by the opposite party:

(a) 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 contract, promise or agreement may be implied by law; and

(b) shall not be construed as a denial of the legality or sufficiency in law of that contract, promise or agreement, whether with reference to a law requiring contracts to be made in, or evidenced by, writing or otherwise, or of the authority of a person by whom the contract, promise or agreement is alleged to have been made.

22 Effect of documents to be stated

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

23 Malice, knowledge, condition of mind etc

(1) Where it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of a person, it is sufficient to allege that malice, intention, knowledge or condition of mind as a fact without setting out the circumstances from which it is to be inferred.

(2) Where, in an action for libel or slander, the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, the plaintiff, if he alleges in his reply that the defendant was actuated by express malice, shall give particulars of the facts and matters from which that malice is to be inferred.

24 Rolled-up plea

Where in an action for libel or slander the defendant alleges that:

(a) in so far as the words complained of consist of statements of fact, they are true in substance and in fact; and

(b) in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest;

or pleads to the like effect, he shall give particulars stating which of the words complained of he alleges are true in substance and in fact and of the facts and matters he relies on in support of the allegation that the words are true.

25 Notice

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

26 Implied contract or relation

(1) Where a contract or a relation between persons is to be implied from a series of letters or conversations, or otherwise from a number of circumstances, it is sufficient to allege that contract or relation as a fact, and to refer generally to those letters, conversations or circumstances without setting them out in detail.

(2) If the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from those circumstances, he may state those contracts or relations in the alternative.

27 Presumptions of law

Neither party need, in a pleading, allege a matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless that matter of fact has first been specifically denied, for example, consideration for a bill of exchange where the plaintiff sues only on the bill, and not upon the consideration as a substantive ground of claim.

28 Actions for trespass

In actions for trespass to land, the close or place in which the trespass is alleged to have been committed shall be designated in the statement of claim by name or abuttals or other sufficient description or by a plan drawn in the margin.

29 Striking out pleadings

The Court or a Justice may, at any stage of the proceedings:

(a) order to be struck out or amended any matter in an endorsement or pleading which is unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the action; and

(b) if the Court or Justice thinks fit, order the costs of the application to be paid as between solicitor and client.

30 Preliminary Act

(1) In an action for damage by collision between vessels, unless the Court or a Justice otherwise orders, the plaintiff or his solicitor shall, within seven days after the commencement of the action, and the defendant or his solicitor shall, within seven days after appearance and before any pleading is delivered, respectively file in the Registry in which the action is then pending a document to be called a Preliminary Act.

(2) The Preliminary Act shall be sealed up and shall not be opened until the pleadings are completed and a consent signed by the respective parties or their solicitors that the Preliminary Act shall be opened is filed in the Registry in which the action is then pending.

(3) The Preliminary Act shall contain a statement as to:

(a) the names of the vessels which came into collision and the names of their masters;

(b) the time 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; and

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

(4) The Court or a Justice may at any time, on the application of a party, order the Preliminary Act to be opened and the evidence to be taken thereon without its being necessary to deliver any pleadings, and as soon as that order has been made, the pleadings as between the parties shall be deemed to be closed.

(5) Where an order is made under the last preceding subrule and either party intends to rely on the defence of compulsory pilotage, he may do so, and shall give notice in writing of that intention to the other party within two days from the opening of the Preliminary Act, or within such further time as the Court or a Justice allows.

Order 21 Statement of claim

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1 Statement of claim

(1) Subject to the next succeeding subrule and to the provisions of Order 12, rule 13, as to filing a statement of claim where there is no appearance, the plaintiff shall deliver a statement of claim:

(a) with the writ of summons or notice in lieu of writ of summons; or

(b) within twenty-one days after appearance or such other time as is fixed by consent in writing or by the Court or a Justice.

(2) A statement of claim delivered under paragraph (a) of the last preceding subrule may be endorsed upon the writ.

(3) Where the writ is specially endorsed with or accompanied by a statement of claim under Order 13, rule 1, a further statement of claim shall not be delivered unless the Court or a Justice so orders, and the endorsement on the writ shall be deemed to be the statement of claim.

2 Allegation of jurisdiction

A statement of claim, whether endorsed on the writ or not, shall allege that the matter is one within the original jurisdiction of the Court and the facts upon which that allegation is based.

3 Claim beyond endorsement

Where a statement of claim not endorsed upon the writ is delivered, the plaintiff may in that statement of claim alter, modify or extend his claim without amendment of the endorsement of the writ.

4 Relief to be specifically stated

(1) A statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and it is not 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.

(2) This rule applies to a counterclaim made, or relief claimed, by the defendant in his defence.

5 Relief founded on separate grounds

(1) Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly.

(2) This rule applies where the defendant relies upon several distinct grounds of defence, set-off or counterclaim founded upon separate and distinct facts.

6 Stated or settled account

(1) Where the cause of action is a stated or settled account, it shall be alleged with particulars.

(2) Where a statement of account is relied on by way of evidence or admission of another cause of action which is pleaded, it shall not be alleged in the pleadings.

Order 22 Defence and counterclaim

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1 Mere denial insufficient

In an action for a debt or liquidated demand in money comprised in Order 13, rule 1, a mere denial of the debt is inadmissible.

2 Defences to actions on bills etc

In an action upon a bill of exchange, promissory note or cheque, 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, note or cheque.

3 Defences to actions under Order 13, r. 1 (1) (a) and (b)

In an action comprised in paragraphs (a) and (b) of subrule (1) of Order 13, rule 1, a defence in denial shall deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed, for example, in an action for goods bargained and sold or sold and delivered, the defence shall deny the order or contract, the delivery or the amount claimed, and in an action for money had and received, it shall deny the receipt of the money, or the existence of those facts which are alleged to make that receipt by the defendant a receipt to the use of the plaintiff.

4 Pleading to damage

A denial or defence is not necessary as to damages claimed or their amount, but they are in issue in all cases unless expressly admitted.

5 Persons in representative capacity

Where a party wishes to deny:

(a) the right of another party to claim as executor, administrator or trustee (whether in bankruptcy or otherwise) or in a representative or other alleged capacity; or

(b) the alleged constitution of a partnership firm;

he shall deny that right or constitution specifically.

6 Time for delivery of defence

Where a defendant has entered an appearance, he shall deliver his defence:

(a) within twenty-one days from the time limited for appearance or for the delivery of the statement of claim, whichever is the later; or

(b) within such other time as is fixed by consent in writing or by the Court or a Justice, unless, in an action in which the writ of summons has been specially endorsed with or accompanied by a statement of claim under Order 13, rule 1, the plaintiff in the meantime serves a summons for judgment under Order 13.

7 Where leave to defend given under Order 13 or 14

Where leave has been given to a defendant to defend under Order 13 or Order 14, he shall deliver his defence, if any, within such time as is limited by the order giving him leave to defend, or if no time is thereby limited, within twenty-one days after the order.

8 Proper admissions not made

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

9 Allowable counterclaim

A counterclaim shall not be pleaded which would not, if the claim in that counterclaim were made by a plaintiff in an action, be within the jurisdiction of the Court.

10 Title on counterclaim

Where a defendant sets up a counterclaim which raises questions between himself and the plaintiff with any other persons, he shall:

(a) add to the title of his defence a further title similar to the title in a statement of claim, setting forth as defendants the names of the persons who, if the counterclaim were to be enforced by cross action, would be defendants to that cross action; and

(b) deliver his defence and counterclaim to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff.

11 Counterclaim against person not party

(1) Where such a person as is mentioned in the last preceding rule is not a party to the action, he shall be summoned to appear by being served with a copy of the defence and counterclaim, and that service shall be regulated by the same rules as are contained in these rules with respect to the service of a writ of summons.

(2) A defence and counterclaim so served shall be endorsed in the form numbered 26 in the First Schedule, with such variations as the circumstances require.

12 Appearance by added parties

Where a person not already a party to the action is served with a defence and counterclaim under the last preceding rule, he shall appear and may be proceeded against as if he had been served with a writ of summons, or notice of a writ, to appear in an action.

13 Reply to counterclaim

A person against whom a counterclaim is made shall deliver a defence to the counterclaim within the time within which he might deliver a defence if it were a statement of claim.

14 Exclusion of counterclaim

Where a person against whom a counterclaim is made contends that the claim raised by the counterclaim ought not be disposed of by way of counterclaim, but in an independent action, the Court or a Justice may at any time order that the counterclaim be excluded.

15 Discontinuance

Where the defendant sets up a counterclaim and the action of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

16 Judgment for balance

Where in an action a counterclaim is established 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 that balance, or may otherwise adjudge to the defendant such relief as he is entitled to upon the merits of the case.

17 Plea in abatement

A plea or defence shall not be pleaded in abatement.

18 Plea of possession

(1) Where a defendant in an action for the recovery of land is in possession by himself or his tenant, he need not plead his title unless:

(a) he is in possession by virtue of a lease or tenancy granted by the plaintiff or his predecessor in title;

(b) his defence depends upon an equitable estate or right; or

(2) Except in the cases mentioned in the last preceding subrule, it is sufficient to state by way of defence that he is in possession and it shall be taken to be implied in that statement that he denies, or does not admit, the allegations of fact contained in the plaintiff’s statement of claim, but he may, nevertheless, rely upon any other ground of defence.

Order 23 Payment into and out of court and tender

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1 Payment into Court

(1) In an action for a debt or damages or in an Admiralty action, the defendant may at any time after appearance, upon notice to the plaintiff, pay into Court a sum of money in satisfaction of the claim or, where several causes of action are joined in one action, in satisfaction of one or more of the causes of action.

(2) Where a defence sets up tender before action, the sum of money alleged to have been tendered shall be brought into Court.

(3) Where the money is paid into Court in satisfaction of one or more of several causes of action, the notice shall, unless the Court or a Justice otherwise orders, specify the cause or causes of action in respect of which payment is made and the sum paid in respect of each such cause of action.

(4) The notice shall be in the form numbered 27 in the First Schedule and shall state whether liability is admitted or denied.

(5) Receipt of the notice shall be acknowledged by the plaintiff in writing, specifying the date of that receipt, within three days of the receipt.

2 Plaintiff may take out money

(1) Where money is paid into Court under the last preceding rule, the plaintiff may:

(a) within seven days of the receipt of the notice of payment into Court; or

(b) where more than one payment into Court has been
made — within seven days of the receipt of the notice of the last payment into Court;

accept the whole sum, or any one or more of the sums paid in in satisfaction of the claim or in satisfaction of the cause or causes of action to which the sum or sums relate, by giving notice to the defendant in the form numbered 28 in the First Schedule, and thereupon he shall be entitled to receive payment of the accepted sum or sums in satisfaction of the claim or cause or causes of action, as the case may be.

(2) Payment shall be made to the plaintiff or, on his written authority, to his solicitor, and thereupon proceedings in the action or in respect of the specified cause or causes of action, as the case may be, shall be stayed.

(3) Where the plaintiff:

(a) accepts money paid into Court in satisfaction of his claim or accepts a sum or sums paid in respect of one or more of specified causes of action; and

(b) gives notice that he abandons the other cause or causes of action;

he may, after seven days from payment-out, and unless the Court or a Justice otherwise orders, tax his costs incurred to the time of payment into Court, and two days after taxation may sign judgment for his taxed costs.

(4) Where a plaintiff in an action for libel or slander takes money out of Court, he may apply by a summons to a Justice in Chambers for leave to make in open court a statement in terms approved by a Justice.

(5) This rule does not apply to an Admiralty action or to an action or cause of action to which a defence of tender before action is pleaded.

3 Money remaining in Court

Where the whole of the money in Court is not taken out under the last preceding rule, the money remaining in Court shall not be paid out except in satisfaction of the claim or specified cause or causes of action in respect of which it was paid in and in pursuance of an order of the Court or a Justice, which may be made at any time before, at or after trial.

4 Several defendants

(1) Money may be paid into Court under rule 1 of this Order by one or more of several defendants sued jointly or in the alternative upon notice to the other defendant or defendants.

(2) If the plaintiff elects within seven days after receipt of notice of payment into Court to accept the sum or sums paid into Court, he shall give notice in the form numbered 28 in the First Schedule to each defendant.

(3) Further proceedings in respect of the specified cause or causes of action, as the case may be, shall thereupon be stayed, and the money shall not be paid out except in pursuance of an order of the Court or a Justice dealing with the whole costs of the action or cause or causes of action, as the case may be.

5 Counterclaim

A plaintiff or other person made defendant to a counterclaim may pay money into Court in accordance with the preceding rules of this Order, with the necessary modifications.

6 Non-disclosure of payment into Court

(1) Except in an action to which a defence of tender before action is pleaded or in which a plea under the provisions of a law corresponding with the Acts of the Parliament of the United Kingdom known as the Libel Acts, 1843 and 1845, has been filed:

(a) a statement of the fact that money has been paid into Court under the preceding rules of this Order shall not be inserted in the pleadings; and

(b) a communication of that fact shall not, at the trial of an action, be made to the Justice or jury until all questions of liability and the amount of debt or damages have been decided.

(2) The Justice shall, in exercising his discretion as to costs, take into account both the fact that money has been paid into Court and the amount of that payment.

7 Payment into Court under certificate

Money shall not be paid into Court under the certificate of a Registrar unless that payment is expressly authorized in the certificate.

8 Money paid into Court under order

(1) Money paid into Court under an order of the Court or a Justice, or certificate of a Registrar, shall not be paid out of Court except in pursuance of an order of the Court or a Justice.

(2) Where, before the delivery of defence, money has been paid into Court by the defendant pursuant to an order under Order 13, he may (unless the Court or a Justice otherwise orders):

(a) by his pleading or by notice in writing appropriate the whole or any part of that money, and any additional payment if necessary, to the whole or a specified portion of the plaintiff’s claim; or

(b) if he pleads a tender, by his pleading appropriate the whole or any part of the money in Court as payment into Court of the money alleged to have been tendered.

(3) The money so appropriated shall thereupon be deemed to be money paid into Court pursuant to the preceding rules of this Order relating to money paid into Court, or money paid into Court with a plea of tender, as the case may be, and shall be subject in all respects to those rules.

9 Notice of payment in

Where a person pays money into Court under an order, he shall forthwith give notice of that payment to such parties and in such manner as is specified in the order.

10 Duty

The affidavit in support of a summons for dealing with money or securities in Court, chargeable with a duty payable under the laws of the Commonwealth or of a State or Territory, or the dividends of those securities, shall contain a statement showing whether that duty has or has not been paid.

11 Money recovered by or paid into account for infant or person of unsound mind

(1) In an action in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or with other parties, a settlement, compromise, payment or acceptance of money paid into Court, whether before, at or after the trial, are not, with respect to the claims of the infant or person of unsound mind, valid without the approval of the Court or a Justice.

(2) Where money, including damages, is recovered, adjudged, ordered, awarded or agreed to be paid in an action of the kind referred to in the last preceding subrule in respect of the claims of the infant or person of unsound mind, whether by judgment, order, settlement, compromise, payment, payment into Court or otherwise, before, at or after the trial, it shall not be paid to the plaintiff, the committee or next friend of the plaintiff, or the plaintiff’s solicitor, unless the Court or a Justice so directs.

(3) Money so recovered, adjudged, ordered, awarded or agreed to be paid shall be dealt with as the Court or a Justice directs and the money, or any part of it, may be directed:

(a) to be paid into Court to the credit of an account intituled in the action and to be invested or otherwise dealt with there; or

(b) to be otherwise dealt with.

(4) The directions referred to in the last preceding subrule may be given from time to time and may include any general or special directions that the Court or Justice thinks fit to give, including (without prejudice to the generality of the above provision) directions as to how the money is to be applied or dealt with and as to any payment to be made, out of the amount paid into Court, to the plaintiff or to the committee or next friend in respect of moneys paid or expenses incurred or for maintenance or otherwise for or on behalf of or for the benefit of the infant or person of unsound mind, or otherwise, or to the plaintiff’s solicitor in respect of costs or of the difference between party and party and solicitor and client costs.

(5) Where, in a proceeding in a District Registry in which money is recovered by or on behalf of an infant or person of unsound mind, that money is ordered to be paid into the Court and invested on behalf of the infant or person of unsound mind, the Court or Justice may order:

(a) that the money be invested by the Principal Registrar in such names and in such securities as are specified in the order or in a subsequent order;

(b) that the interest as it accrues shall be paid to the infant or to the next friend of the infant or person of unsound mind or to such other person as the Court or Justice orders; or

(6) The Court or a Justice may also make an order directing the transfer or sale of the securities, or any part of them, and the payment out of the proceeds of the sale to the infant, or to such person as it or he directs, for the benefit of the infant or the person of unsound mind.

(7) This rule also applies:

(a) to an action in which damages are claimed or recovered by or on behalf of, or are adjudged, ordered, awarded or agreed to be paid to, an infant or person of unsound mind under the provisions of a law corresponding with the Acts of the Parliament of the United Kingdom known as the Fatal Accidents Acts, 1846 to 1908; and

(b) in the same way as it applies to money recovered by or adjudged or ordered to be paid to an infant — to money, which in an action under those provisions, is recovered by or adjudged to be paid to the widow of the person killed.

(8) Where such an action is taken by or for the benefit of more than one person and the amount recovered is to be divided amongst those persons, the Justice or jury, as the case may be, shall divide and apportion the share to be paid to each of those persons and the amount so apportioned shall be specified in the order or judgment made or directed in the Court.

(9) This rule does not prejudice the lien of a solicitor for costs.

(10) This rule applies to a counterclaim by an infant or a person of unsound mind, and when so applied the expressions “plaintiff, plaintiff’s solicitor” and “committee” or “next friend” shall be read as applying to a defendant setting up the counterclaim or his guardian ad litem or committee, as the case may be.

(11) The provisions of this rule apply, mutatis mutandis, to an action which is settled on behalf of an infant or person of unsound mind before trial.

Order 24 Reply

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1 Time for reply

A plaintiff shall deliver his reply:

(a) within fourteen days from the delivery of the defence or the last of the defences; or

(b) within such other time as is fixed by consent in writing or by the Court or a Justice.

2 Reply to counterclaim

Where a counterclaim is pleaded, a reply to the counterclaim is subject to the rules applicable to defences.

3 Subsequent pleadings — time for pleading after reply

A pleading subsequent to reply shall not be pleaded without leave of the Court or a Justice, and then only within such time and upon such terms as the Court or Justice thinks fit.

4 New assignment

A new assignment is not necessary and shall not be used, but everything which was formerly alleged by way of new assignment may be introduced by amendment of the statement of claim or by way of a reply.

Order 25 Matters arising pending the action

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1 New grounds of defence arising

(1) A 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 raised by the defendant in his defence, either alone or together with any other ground of defence.

(2) Where, after a defence has been delivered, a ground of defence arises to a set-off or counterclaim alleged in that defence by the defendant, it may be relied upon by the plaintiff, or another defendant to the counterclaim, in his reply, either alone or together with any other ground of reply.

2 Further defence or reply

(1) Where a ground of defence arises after the defendant has delivered a defence, or after the time limited for his doing so has expired, the defendant may, within fourteen days after that ground of defence has arisen, or at a subsequent time by leave of the Court or a Justice, deliver a further defence setting forth that ground of defence.

(2) Where a ground of defence to a counterclaim or answer to a set-off arises after reply, or after the time limited for delivering a reply has expired, the plaintiff or another defendant to the counterclaim may, within fourteen days after that ground of defence or answer has arisen, or at a subsequent time by leave of the Court or a Justice, deliver a further reply setting forth that ground of defence or answer.

3 Confession of defence

(1) Where a defendant, in his defence or in a further defence as mentioned in the last preceding rule, alleges a ground of defence which has arisen after the commencement of the action, the plaintiff:

(a) may deliver a confession of that defence; and

(b) may thereupon, unless the Court or a Justice, either before or after the delivery of the confession, otherwise orders, sign judgment for his costs up to the time of the pleading of that defence with costs of judgment.

(2) A confession of defence may be in the form numbered 29 in the First Schedule with such variations as the circumstances require.

(3) This rule applies, mutatis mutandis, to a reply to a counterclaim.

Order 26 Demurrer and objections to pleadings

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1 Demurrer

A party may demur:

(a) to a pleading of the opposite party;

(b) to a part of a pleading which sets up a distinct cause of action;

(d) to a claim for damages exceeding an amount named by the demurring party; or

(e) to a pleading or part of a pleading of the opposite party which sets up a distinct ground of defence, set-off, counterclaim or reply, as the case may be;

on the ground that the facts alleged do not show a cause of action, claim for damages, ground of defence, set-off, counterclaim or reply, as the case may be, to which effect can be given by the Court as against the party demurring.

2 Demurrer to state whether the whole or part — frivolous demurrer may be set aside with costs

(1) A demurrer shall state:

(a) 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; and

(b) some ground in law for the demurrer.

(2) The party demurring shall not on the argument of the demurrer be limited to the ground so stated.

(3) Where no ground or only a frivolous ground of demurrer is stated, the Court or a Justice may set the demurrer aside with costs.

3 Delivery

A party demurring to the pleading of another party shall deliver his demurrer to that other party:

(a) within the time within which the demurring party is required to answer that pleading; or

(b) within such time as is fixed by consent in writing or by the Court or a Justice.

4 Demurrer and pleading in one document

Where a party entitled to deliver a pleading 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 of that pleading, he shall combine the demurrer and other pleading.

5 Leave to plead and demur together not necessary

(1) A party may plead and demur to the same matter without leave.

(2) Where a party demurring pleads as well as demurs, it is in the discretion of the Court or a Justice to direct whether the issues of law or fact shall be first disposed of.

6 Demurrer to claim founded on document

(1) Where the claim or defence of a 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 of the document 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.

(2) 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.

7 Demurrer not entered for argument to be held sufficient

(1) 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 of the setting down to the other party.

(2) If:

(a) the demurrer is not set down and notice given within fourteen days after delivery; and

(b) the party whose pleading or claim is demurred to does not within that time amend;

the demurrer is 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.

8 Form of setting down for argument

A demurrer shall be set down by filing in the Registry in which the action is then pending:

(a) a memorandum requiring the demurrer to be set down either before a Full Court or a single Justice; and

(b) a copy of the pleadings so far as they relate to the matters of law raised by the demurrer.

9 When demurrer required to be heard before Full Court

(1) Where the party setting down a demurrer for argument sets it down to be heard before a single Justice, and another party desires it to be heard before a Full Court, that other party may, within seven days after receiving notice that the demurrer has been so set down, file in the Registry in which the action is then pending a memorandum to that effect and deliver to the other party a copy of the memorandum.

(2) The demurrer shall thereupon be deemed to have been set down to be heard before a Full Court.

(3) If the originating process in the action was issued by an office of the Registry other than that where the seat of the Court is located, the pleadings shall be forthwith transmitted to the Principal Registry unless a sitting of a Full Court is appointed to be held at the place where the District Registry is situated either within sixty days or prior to the next sitting of a Full Court appointed to be held at the place where the Principal Registry is situated.

(4) The pleadings shall, after the decision of the Full Court, be returned to the District Registry with a certificate of the judgment or order of the Full Court.

10 Copy pleadings for Justices

After a demurrer has been set down for argument, the party setting it down shall forthwith lodge in the Principal Registry or the District Registry, as the case may be, for the Justice, or each Justice, who is 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.

11 Amendment pending demurrer

While a demurrer to the whole or 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.

12 Costs

Where a demurrer to the whole or part of a pleading or claim is allowed upon an argument, the party whose pleading or claim is demurred to shall pay to the demurring party the costs of the demurrer, and, where 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.

13 Effect of decision on demurrer going to whole action

Subject to the power of amendment, when a demurrer to the whole of a 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.

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

Where a demurrer to a pleading or claim, or part of a pleading or claim, is allowed in a 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 are the same as if it had not been pleaded.

15 Demurrer overruled with leave to plead

Where 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.

16 Points of law may be raised by pleadings

A party is entitled to raise by his pleading any point of law, and a point so raised shall, subject to section 18 of the Judiciary Act 1903-1950:

(a) be disposed of by the Justice who tries the action; or

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

17 Dismissal of action

Where, in the opinion of the Court or a Justice, the decision of that point of law substantially disposes of the whole action or a distinct cause of action, ground of defence, set-off, counterclaim or reply in the action, the Court or Justice may thereupon dismiss the action or make such other order in that action as is just.

18 Striking out pleading where no reasonable cause of action disclosed

(1) The Court or a Justice may order a pleading to be struck out on the ground that it does not disclose a reasonable cause of action or answer.

(2) In that case, or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Justice may order the action to be stayed or dismissed, or judgment to be entered accordingly, as is just.

19 Declaratory judgment

A proceeding is not open to objection on the ground that a merely declaratory judgment or order is sought by the proceeding, and the Court may make binding declarations of right in an action or other proceeding whether any consequential relief is or could be claimed in that action or proceeding or not.

Order 27 Discontinuance

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1 Discontinuance by a party

(1) A party to an action or proceeding may, by notice in writing, wholly discontinue or withdraw his action, counterclaim or defence as against another party, or withdraw part or parts of his claim or cause of complaint, counterclaim or defence.

(2) The party so discontinuing or withdrawing his action, counterclaim or defence, or a part or parts of his claim or cause of complaint, counterclaim or defence, shall pay the other party his costs in the action or proceeding, or, if the action, counterclaim or defence is not wholly discontinued or withdrawn, the costs occasioned by the matter so withdrawn.

(3) The costs shall be taxed, and the discontinuance or withdrawal, as the case may be, shall not be a defence to a subsequent action for the same cause.

2 Withdrawal by consent

An action or proceeding may be discontinued at any time upon the filing in the Registry in which it is then pending of a consent in writing signed by all parties.

3 Entering judgment on discontinuance

A party may enter judgment:

(a) for the costs of the action or proceeding if it is wholly discontinued against him; or

(b) for the costs occasioned by the matter withdrawn if the action or proceeding is not wholly discontinued;

if the said costs are not paid within seven days after taxation.

Order 28 Default in pleading

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1 Default of plaintiff in delivering statement of claim

(1) Where the plaintiff is bound to deliver a statement of claim and he 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.

(2) On the hearing of the application, the Court or Justice may, if a statement of claim has not been delivered, order the action to be dismissed accordingly or may make such other order on such terms as the Court or Justice thinks just.

2 Claim for debt or liquidated demand

(1) Where:

(a) the plaintiff’s claim is for a debt or liquidated demand only; and

(b) the defendant is bound to deliver a defence and he does not, within the time allowed for that purpose, deliver a defence;

the plaintiff may, at the expiration of that time, upon filing an affidavit showing the facts referred to in paragraph (a) and (b) of this subrule, enter final judgment for the amount claimed, with costs.

(2) In an action by a money-lender or an assignee for the recovery of money lent by a money-lender or the enforcement of an agreement or security relating to that money, judgment shall not be entered in default of defence unless the leave of the Court or Justice has been obtained.

3 Several defendants, default of one

Where, in an action such as is mentioned in subrule (1) of the last preceding rule, there are several defendants and one of them makes default as mentioned in that subrule, the plaintiff may, subject to subrule (2) of that rule, enter final judgment against the defendant so making default and issue execution upon that judgment without prejudice to his right to proceed with his action against the other defendants.

4 Damages — detention of goods

(1) Where:

(a) the plaintiff’s claim is for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages; and

(b) the defendant, or all the defendants, if more than one, make default as mentioned in subrule (1) of rule 2 of this Order;

the plaintiff may enter an interlocutory judgment against the defendant or defendants so making default, and the value of the goods and the amount of the damages, or either of them, as the case may be, shall be assessed by the Registrar, unless the Court or a Justice otherwise directs.

(2) The Court or a Justice may order that instead of assessment by a Registrar, the value of the goods and amount of damages, or either of them, shall be ascertained in a way which the Court or Justice directs.

5 Default of one or more defendants

(1) Where, in an action such as is mentioned in the last preceding rule, there are several defendants and one or more of them make default as mentioned in subrule (1) of rule 2 of this Order, the plaintiff may enter an interlocutory judgment against the defendant or defendants so making default and proceed with his action against the others.

(2) The value and amount of damages against a defendant so making default shall be assessed at the same time as the trial of the action, or issues in the action, against the other defendants, unless the Court or a Justice otherwise directs.

6 Debt or damages and detention of goods or damages

Where:

(a) the plaintiff’s claim is for a debt or liquidated demand, and also for pecuniary damages, or for detention of goods with or without a claim for pecuniary damages; and

(b) a defendant makes default as mentioned in subrule (1) of rule 2 of this Order;

the plaintiff may, subject to subrule (2) of that rule:

(d) enter interlocutory judgment for the value of the goods and the damages, or either of them, as the case may be, and proceed as provided in rules 4 and 5 of this Order.

7 Recovery of land

Where, in an action for the recovery of land, the defendant makes default as mentioned in subrule (1) of rule 2 of this Order, the plaintiff may enter a judgment that he shall recover possession of the land, with his costs.

8 Claims joined with claim for recovery of land

Where the plaintiff has endorsed another claim upon a writ for the recovery of land and a defendant makes default in delivering a defence, the plaintiff may:

(a) enter judgment against that defendant with respect to the land as provided in the last preceding rule; and

(b) proceed with respect to the other claim as provided in this Order with respect to such a claim.

9 Where a defence is delivered to part of claim only

(1) Where:

(a) the plaintiff’s claim is for a debt or liquidated demand, or for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, or for any of those matters, or for the recovery of land;

(b) the defendant delivers a defence in answer to part only of the plaintiff’s alleged cause of action; and

(c) the part unanswered consisted 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.

(2) Where there is a counterclaim, execution on judgment entered under the last preceding subrule in respect of the plaintiff’s claim shall not issue without leave of the Court or a Justice.

10 Admiralty actions in rem

(1) When, in an Admiralty action in rem, the defendant makes default in delivering a defence within the time limited by or under these rules, the plaintiff may, on the expiration of twenty-one days after the expiration of the time so limited, and on filing an affidavit on non-delivery of defence, set down the action for judgment by default.

(2) Order 12, rule 15, applies to an action set down under this rule.

11 Defendant in default

Where, in an action not being an action mentioned in the preceding rules of this Order, the defendant is bound to deliver a defence and makes default in delivering it, the plaintiff may set down the action on motion for judgment, and shall recover the judgment to which, upon the writ or statement of claim, he is entitled.

12 One of several defendants default

Where, in an action such as is mentioned in the last preceding rule, there are several defendants, then, if one of the defendants makes default as mentioned in that rule, the plaintiff may, if the cause of action is severable:

(a) set down the action at once on motion for judgment against the defendant so making default; or

(b) set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants.

13 Close of pleadings on default

(1) Where a party makes default in delivering a reply or a subsequent pleading, the pleadings shall be deemed to be closed and all material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue.

(2) This rule does not apply to a reply to a counterclaim.

(3) Unless the plaintiff, or other person defendant to a counterclaim, delivers a reply or defence to the counterclaim, the statements of fact contained in the counterclaim shall, at the expiration of twenty-one days from its delivery or of such time, if any, as may by order be allowed for delivery of the reply or defence, be deemed to be admitted, but the Court or Justice may, at any subsequent time, give leave to the plaintiff to deliver a reply.

14 Default of third party

(1) Where an issue arises other than between plaintiff and defendant and a party to that issue makes default in delivering a pleading which he is bound to deliver, the opposite party may set down the action on motion for such judgment, if any, as upon the pleadings he appears to be entitled to.

(2) The Court or Justice may order judgment to be entered accordingly or may make such other order as is necessary to do complete justice between the parties.

15 Setting aside judgment by default

A judgment by default, whether under this Order or under any other of these rules, 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.

16 Effect of judgment by default

Where a plaintiff enters judgment under the provisions of this Order against a defendant who has made default in delivering a defence, that entry of judgment does not, nor does the issue of execution on the judgment, prejudice his right to proceed against another defendant.

17 Counterclaims

This Order applies to counterclaims, and to proceedings on counterclaims, as if the counterclaim were a statement of claim and the defendant or other party setting up the counterclaim were a plaintiff.

Order 29 Amendment

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1 Amendment of endorsement

(1) The Court or a Justice may, at any stage of the proceedings, allow a party to amend his endorsement or pleadings in such manner, and on such terms, as is just.

(2) All such amendments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties.

2 When plaintiff may amend without leave

The plaintiff may, without leave, amend his statement of claim, whether endorsed on the writ or not:

(a) once at any time before the expiration of the time limited for reply and before replying; or

(b) where a defence is not delivered, at any time before the expiration of twenty-eight days from the appearance of the defendant who last appeared.

3 By defendant

A defendant may, without leave, amend his defence or counterclaim once at any time before the expiration of fourteen days from delivery of the reply.

4 Disallowance of amendment, application for, within 14 days

(1) When a party has amended his pleading under either of the last two preceding rules, the opposite party may, within fourteen days after the delivery to him of the amended pleading, apply to the Court or a Justice to disallow the amendment or a part of the amendment.

(2) The Court or Justice may, if satisfied that the justice of the case requires it, disallow the amendment, or allow it upon such terms as to costs, or otherwise, as are just.

5 Pleading to amendment

(1) When a party has amended his pleading under rule 2 or rule 3 of this Order, the opposite party shall plead to the amended pleading, or amend his pleading, within the time he then has to plead or within fourteen days from the delivery of the amendment, whichever period last expires.

(2) Where the opposite party has pleaded before the delivery of the amendment, and does not plead again or amend within the time mentioned in the last preceding subrule, he shall be deemed to rely on his original pleading in answer to the amendment.

6 Other cases

In a case not provided for by the preceding rules of this Order, application for leave to amend may be made by a 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.

7 Failure to amend under order

If a party who has obtained an order for leave to amend does not amend accordingly:

(a) within the time limited for that purpose by the order; or

(b) if no time is so limited, then within fourteen days from the date of the order;

the order to amend, on the expiration of the time so limited or of fourteen days from the date of the order, as the case may be, becomes void, unless the time is extended by the Court or a Justice.

8 How amendments made

(1) An amendment in a document may be made:

(a) by a written alteration in the document and copies of the document which have been filed, served or delivered; or

(b) by an addition on paper to be interleaved with the document and copies.

(2) A party on or to whom the document or a copy of the document has been served or delivered shall produce it to the party desiring to make the amendment.

(3) If amendments require the insertion of more than one hundred and forty-four words in any one place, or are so numerous or of such a nature that making them in writing would render the document difficult or inconvenient to read, a copy of the document as amended shall be filed, served or delivered.

(4) An amendment shall be made in red ink or otherwise in such manner as to distinguish the amendment from the original matter.

9 Date of order and date of amendment to be marked

When a document is amended, it shall be marked with the date of the order, if any, under which it is amended and of the day on which the amendment is made, in manner following, namely:

“Amended the day of

pursuant to order of dated

the day of .”.

10 Delivery of amended document

When it is necessary to serve or deliver a copy of a document as amended, the amended document shall be served on or delivered to the opposite party within the time allowed for amending the document.

11 Clerical mistakes and accidental omissions

A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons.

12 General power to amend

The Court or a Justice may at any time, and upon such terms as to costs or otherwise as the Court or Justice thinks just, amend a defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.

13 Costs

The costs of and occasioned by an amendment made pursuant to rules 2 and 3 of this Order shall be borne by the party making the amendment, unless the Court or a Justice otherwise orders.

Order 30 Caveats and releases in admiralty actions

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1 Caveat against warrant to arrest

Where a party desires to prevent the arrest of property, he may cause a caveat against the issue of a warrant for the arrest of the property to be entered in the Principal Registry.

2 Caveat Warrant Book

(1) For the purpose mentioned in the last preceding rule, the party shall cause to be filed in the Registry a notice, signed by himself or his solicitor, undertaking:

(a) to enter an appearance in any action that may be commenced against the property; and

(b) to give security in that action in a sum not exceeding an amount to be stated in the notice or to pay that sum into Court.

(2) 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.

3 Search for caveat before issue of arrest warrant in District Registry

When an action is proceeding in a District Registry, the District Registrar, unless required to act under rule 18 of this Order, shall, before issuing a warrant for the arrest of the property, ascertain by telegraph, or otherwise, from the Principal Registry whether or not a caveat has been entered against the issue of a warrant for the arrest of the property.

4 Writ to be served on party entering caveat

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

5 Security to be given within 3 days

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 to give security or pay into Court, give security in that sum within three days from the service of the writ.

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

Where, after the expiration of fourteen days from the filing of the notice mentioned in rule 2 of this Order, 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.

7 Judgment may be enforced by attachment and warrant

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 of that amount 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.

8 Release

(1) Property arrested by warrant in an Admiralty action shall not be released except under the authority of an instrument, to be called a release issued from the Registry from which the warrant for arrest issued.

(2) A party, or the solicitor of a party, at whose instance property has been arrested may, before an appearance has been entered, obtain the release of that property by filing a notice that he withdraws the warrant.

9 Caveat against release

(1) Where a party desires to prevent the release of property under arrest, he shall file a notice objecting to the release in the Registry from which the warrant for arrest issued.

(2) 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.

10 Payment into Court

Except as provided by the succeeding rules of this Order, a party may obtain the release of property by paying into Court the sum in respect of which the action has been commenced, or giving security for that sum.

11 Release of cargo arrested for freight only

Where cargo is arrested for freight only, it may be released:

(a) by filing an affidavit as to the value of the freight, and paying the amount of the freight into Court; or

(b) upon an order of the Court or a Justice upon proof that the freight has already been paid.

12 In salvage actions

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.

13 On giving security

A party:

(a) who has given security in the sum in respect of which the action has been commenced, or has paid that sum into Court; and

(b) if the action is one of salvage, who has also filed an affidavit as to the value of the property arrested;

is entitled to a release for that property, unless a caveat against the release is outstanding in the Caveat Release Book.

14 On consent or discontinuance or dismissal of action

Unless a caveat against the release is outstanding in the Caveat Release Book, a release may also be issued by the Registrar:

(a) on a consent in writing being filed, signed by the party at whose instance the property was arrested; or

(b) on discontinuance or dismissal of the action in which the property was arrested.

15 Release to be left with Marshal

When the release is obtained, the party taking it out shall:

(a) leave it with the Marshal; and

(b) 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.

16 Registrar may require Justice’s order

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

17 Liability for delaying release

Where a party delays the release of property by the entry of a caveat, he is liable to be condemned in the costs and damages occasioned by the entry, unless he shows to the satisfaction of the Court or a Justice good and sufficient reason for having done so.

18 Arrest notwithstanding caveat

(1) Subject to the next succeeding subrule, these rules do not prevent a solicitor from taking out a warrant for the arrest of property, notwithstanding the entry of a caveat in the Caveat Warrant Book.

(2) The party at whose instance property, in respect of which the caveat was entered, has been arrested is 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.

19 Caveat Payment Book

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

20 Caveat against payment out of Court

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

21 Liability for delaying payment

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

22 Address of caveator

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 three miles of the Registry in which the action is pending, at which documents required to be served upon him may be left.

23 Withdrawal of caveats

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.

24 Caveats may be overruled

The Court or a Justice may set aside a caveat.

25 Caveat in Admiralty actions in force for 6 months

In an Admiralty action, 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 of the caveat.

Order 31 Summons for directions and consolidation

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1 Summons for directions

(1) A party to an action may take out a summons for directions at any time before judgment.

(2) A summons for directions shall not be taken out by or against a defendant until after that defendant has entered an appearance.

2 Interlocutory proceedings

(1) Upon the hearing of the summons, the Court or a Justice may give such directions with respect to the proceedings as the Court or Justice thinks proper.

(2) Without prejudice to the generality of the last preceding subrule, the Court or a Justice may:

(a) make such order as is just with respect to:

(i) discovery and inspection of documents;

(ii) interrogatories;

(iii) inspections of real or personal property;

(iv) admissions of fact or of documents; and

(v) the place, time and mode of trial;

(b) order that evidence of a particular fact or facts, to be specified in the order, shall be given at the hearing or trial:

(i) by statement on oath of information and belief;

(ii) by production of documents or entries in books;

(iii) by copies of documents or entries; or

(iv) otherwise as the Court or Justice directs;

(d) appoint a Court expert under Order 38;

(e) order the action to be set down for trial forthwith and settle the issues to be tried;

(f) make such order as is just with respect to pleadings and particulars;

(g) where two or more tortfeasors are sued together in respect of the same tort or damage and one of them in the same proceedings claims contribution from the other or others, order that a written offer of contribution made by one of those tortfeasors to the other or others of them shall be treated for the purposes of that claim as a notice of payment into Court; and

(h) may revoke or vary an order made under this subrule.

3 No affidavit to be used without leave

An affidavit shall not be used on the hearing of a summons for directions except by leave of the Court or a Justice.

4 Parties to apply for directions

On the hearing of the summons, a party to whom the summons is addressed shall, so far as practicable, apply for any interlocutory order or directions.

5 Subsequent applications

An application by a party subsequent to the original summons and before judgment for directions as to an interlocutory matter or thing shall be made under the summons by two clear days’ notice to the other party stating the grounds of the application.

6 Costs of subsequent applications

An application by a party which might have been made at the hearing of the original summons shall, if granted on a subsequent application, be granted at the cost of the party applying unless the Court or a Justice is of opinion that the application could not properly and reasonably have been made at the hearing of the original summons.

7 Consolidation of proceedings

Proceedings may be consolidated at any time by order of the Court or a Justice.

Order 32 Discovery and inspection

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1 Discovery by interrogatories

(1) In an action, and in any other proceeding by leave of the Court or a Justice, a party may deliver interrogatories in writing for the examination of an opposite party.

(2) The interrogatories when delivered shall have a note at their foot stating which of the interrogatories a particular party is required to answer.

(3) Interrogatories which do not relate to matters in question in the proceeding shall be deemed irrelevant notwithstanding that they might be admissible on the oral cross-examination of a witness.

(4) Where, in an action for libel or slander, the defendant pleads that the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, interrogatories shall not be allowed as to the defendant’s sources of information or grounds of belief.

2 Further interrogatories by leave

A party shall not deliver more than one set of interrogatories to the same party without leave of the Court or a Justice.

3 Copy to be filed

A copy of the interrogatories delivered by a party shall be filed by him before the time at which they are delivered.

4 Interrogatories to corporation or body politic

(1) The affidavit in answer to interrogatories in the case of a body politic or corporate, or other body of persons empowered or allowed by law to sue or be sued, whether in its own name or in the name of an officer or other person, shall be made by the secretary or other proper officer, agent or servant of that body politic or corporate or other body.

(2) An opposite party may apply for an order allowing him to deliver interrogatories to be answered by a specified officer, agent or servant of such a body as is mentioned in the last preceding subrule.

5 Applications to set aside

(1) Interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or may be struck out on the ground that they are prolix, oppressive, unnecessary or scandalous.

(2) An application to set aside interrogatories shall be made within fourteen days after service of the interrogatories.

6 Affidavit in answer, filing

(1) Interrogatories shall be answered by affidavit to be filed within fourteen days of their delivery or within such other time as a Justice allows.

(2) A copy of the affidavit shall be delivered to the interrogating party before the time at which the affidavit is filed.

7 Objections to interrogatories by answer

An objection to answering an interrogatory may be taken in the affidavit in answer:

(a) on the ground that it is scandalous or irrelevant, not bona fide for the purpose of the proceeding, unreasonable, prolix, oppressive or unnecessary;

(b) on the ground that the matters inquired into are not sufficiently material at that stage; or

8 Order to answer or answer further

If a person interrogated omits to answer or answers insufficiently, the party interrogating him may apply to the Court or a Justice for an order requiring him to answer, or to answer further, as the case may be, either by affidavit or upon oral examination.

9 Application for discovery of documents

A party may serve a notice in accordance with the form numbered 30 in the First Schedule upon another party to a proceeding requiring him to make discovery on oath of the documents which are or have been in his possession or power, relating to a matter in question in the proceeding.

10 Affidavit of discovery

Where a party is served with a notice for discovery:

(a) that party; or

(b) where that party is a body politic or corporate, or any other body of persons empowered or allowed by law to sue or be sued whether in its own name or in the name of an officer or other person, the secretary or other proper officer, agent or servant of the body;

shall, within fourteen days after service of the notice, make an affidavit in answer to the notice.

11 Affidavit of documents

(1) The affidavit to be made by a person on whom a notice for discovery of documents has been served shall specify which, if any, of the documents mentioned in the affidavit he objects to produce, and the grounds of his objection.

(2) The affidavit shall be filed and a copy of the affidavit delivered to the party who served the notice for discovery within fourteen days of service of the notice.

12 Production of documents

(1) The Court or a Justice, at any time during the pendency of a proceeding, may order the production by a party to the proceeding, upon oath, of such of the documents in his possession or power, relating to a matter in question in the proceeding, as the Court or Justice thinks right.

(2) The Court or Justice may deal with the documents, when produced, in such manner as appears just.

13 Neglect to make discovery

If a party neglects or refuses to make discovery within the time limited or makes insufficient discovery, the Court or a Justice may order compliance with the notice for discovery upon such terms as it or he thinks fit.

14 Inspection of documents referred to in pleadings or affidavits

(1) A party may, at any time, by notice in writing, give notice to another party in whose writ, pleadings, particulars or affidavits reference is made to a document, to produce that document for the inspection of the party giving the notice, or of his solicitor, and to permit either of them to take copies of the document.

(2) Where a party does not comply with a notice given under the last preceding subrule, he may not afterwards put a document referred to in the notice in evidence on his behalf in the proceeding except in accordance with the next succeeding subrule.

(3) Where the party who has not complied with the notice satisfies the Court or a Justice that the document relates only to his own title, he being a defendant in the proceeding, or that he had some other cause or excuse which the Court or Justice deems sufficient for not complying with the notice, the Court or Justice may allow the document to be put in evidence on such terms as to costs and otherwise as the Court or Justice thinks fit.

15 Time for inspection when notice given under rule 14; bank and trade books

The party to whom a notice to produce is given shall:

(a) if all the documents referred to in the notice have been discovered by him in the affidavit referred to in rule 11 of this Order, within two days from the receipt of the notice; or

(b) if any of the documents referred to in the notice have not been discovered by him in the affidavit, within fourteen days from the receipt of the notice to produce;

deliver to the party giving the notice to produce a notice stating:

(c) a time within fourteen days from the delivery of that notice at which the documents, or such of them as he does not object to produce, may be inspected:

(i) at the office of his solicitor;

(ii) if he acts in person, at a place not more than three miles from the office of the Registry in which the proceeding is then pending; or

(iii) in the case of banker’s books or other books of account or books in constant use for the purposes of a trade or business, at their usual place of custody; and

(d) which, if any, of the documents he objects to produce, and on what ground.

16 Order for inspection

(1) If the party served with notice under rule 14 of this Order omits to give notice of a time for inspection under the last preceding rule, or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, or if he acts in person, elsewhere than at a place not more than three miles from the office of the Registry in which the proceeding is pending, 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 it or he thinks fit.

(2) The order shall not be made unless the Court or a Justice is of the opinion that it is necessary either for disposing fairly of the proceeding or for saving costs.

(3) An application for an order for inspection of documents, other than documents referred to in the writ, pleadings, particulars or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, shall be founded upon an affidavit showing:

(a) the documents of which inspection is sought;

(b) that the party applying is entitled to inspect them; and

(4) The Court or Justice shall not make an order for inspection of those documents unless the Court or Justice is of the opinion that it is necessary either for disposing fairly of the proceeding or for saving costs.

17 Verified copies

(1) Where inspection of business books is applied for, the Court or a Justice may, if it or he thinks fit, instead of ordering inspection of the original books, order a copy of any entries in those books to be furnished and verified by the affidavit of some person who has examined the copy with the original entries.

(2) The affidavit shall state whether or not there are in the original book any, and what, erasures, interlineations and alterations.

(3) Notwithstanding that the copy has been supplied, the Court or a Justice may order inspection of the book from which the copy was made.

(4) When, on an application for an order for inspection, privilege is claimed for a document, the Court or a Justice may inspect the document for the purpose of deciding as to the validity of the claim of privilege.

18 Power to order discovery of particular document or class of documents

(1) The Court or a Justice may:

(a) on the application of a party to a proceeding at any time; and

(b) whether or not an affidavit of documents has already been made or ordered;

make an order requiring another party to state by affidavit:

(c) whether a particular document or documents, or a class or classes of documents, specified or indicated in the application is or are, or has or have at any time been, in his possession, custody or power; and

(d) if it or they is or are not then in his possession, custody or power, whether and when he parted with it or them and what has become of it or them.

(2) The 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, custody or power the particular document or documents, or the class or classes of documents, specified or indicated in the application, and that they relate to a matter in question in the proceeding.

19 Premature discovery

If the party from whom discovery of any kind or inspection is sought objects to the discovery or inspection, or a part of it, the Court or a Justice may, if satisfied:

(a) that the right to the discovery or inspection sought depends on the determination of an issue or question in dispute in the proceeding; or

(b) that for any other reason it is desirable that an issue or question in dispute in the proceeding should be determined before deciding upon the right to the discovery or inspection;

order that that issue or question be determined first, and reserve the question as to the discovery or inspection.

20 Non-compliance with order for discovery or inspection

(1) If a party fails to comply with an order:

(a) to answer interrogatories;

(b) to give discovery or inspection of documents; or

he is liable to attachment.

(2) If a party fails to answer interrogatories, to give discovery or inspection of documents or to allow inspection of property as required by these rules or by an order:

(a) where that party is a plaintiff, his action may be dismissed for want of prosecution;

(b) where that party is a defendant, his defence, if any, and counterclaim, if any, may be struck out;

(d) where that party is a defendant who has given a third party notice, the notice may be set aside and the party placed in the same position as if he had not defended or appeared;

and the party interrogating, seeking discovery or inspection of documents or inspection of property, as the case may be, may apply to the Court or a Justice for an order to that effect.

21 Service on solicitor of order for discovery

(1) Service of an order for interrogatories, discovery or inspection made against a party on his solicitor is sufficient service to found an application for an attachment for disobedience to the order.

(2) 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.

22 Attachment of solicitor

When a solicitor to whom interrogatories for the examination of a party are delivered, or upon whom an order for interrogatories, a notice or order for discovery or an order for inspection is served, neglects, without reasonable excuse, to give notice of that delivery or service to his client, he is liable to attachment and the payment of such costs as the Court or a Justice thinks fit.

23 Using answer to interrogatories at trial

(1) Subject to the next succeeding subrule, a party may, at the hearing or trial of a proceeding, use in evidence any one or more of the answers, or part of an answer, of an opposite party to interrogatories without putting in the other answers, or the whole of that answer, as the case may be.

(2) The Court or Justice may look at the whole of the answers and, if it or he is of opinion that any other of them, or the remaining part of an answer, is so connected with an answer, or part of an answer, proposed to be put in that that last-mentioned answer, or part of an answer, ought not to be used without the other answer, or part of answer, the Court or Justice may direct that an answer, or part of an answer, shall not be put in unless the other answer, or remaining part of an answer, is also put in.

24 Discovery against Marshal

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

25 Order to apply to infants

(1) This Order applies to an infant plaintiff or defendant, and to the next friend of an infant plaintiff and the guardian ad litem of an infant defendant.

(2) The Court or a Justice may order that any discovery or inspection of documents be made or given by some person on behalf of a party who is under a legal disability.

Order 33 Admissions and notices to produce

Do not delete : Division placeholder

1 Notice of admission of facts

A party may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or a part of the case of another party.

2 Notice to admit documents

(1) A party may, by notice in writing, at any time not later than seven days before the day for which the notice of trial has been given, or which otherwise has been appointed for trial, call upon another party to admit a document, saving all just exceptions.

(2) If the other party desires to challenge the authenticity of the document, he shall, within seven days after service of the notice to admit, give notice that he does not admit the document and requires it to be proved at the trial.

(3) If a notice given in pursuance of subrule (1) of this rule contains or is endorsed with a memorandum that, unless within seven days notice declining to admit the document is given, failure to give such notice will be deemed an admission of the document, and if the other party refuses or neglects to give notice of non-admission within the said last-mentioned seven days, he shall be deemed to have admitted the document, unless the Court or a Justice otherwise orders.

(4) Where a party gives notice of non-admission within the time prescribed by subrule (2) of this rule and the document is proved at the trial, the Court or Justice may order the party who has not admitted the authenticity of the document to pay the costs of proving it.

(5) Where a party proves a document without having given notice to admit under subrule (1) of this rule, the Court or Justice may order that that party shall not receive the costs of proving it.

3 Notice to admit facts

(1) A party may, by notice in writing, at any time not later than seven days before the day for which notice of trial has been given, or which has otherwise been appointed for trial, call upon another party to admit, for the purposes of the proceeding only, a specific fact or facts mentioned in the notice.

(2) If that other party refuses or neglects to admit the fact or facts within three days after service of the notice, or within such further time as is allowed by the Court or a Justice, the Court may order the party who has not admitted the fact or facts to pay the costs of proving it or them.

(3) An admission made in pursuance of a notice to admit facts shall be deemed to be made only for the purposes of the particular proceeding, and not as an admission to be used against the party on another occasion or in favour of a person other than the party giving the notice.

(4) The Court or a Justice may at any time allow a party to amend or withdraw an admission made under this rule on such terms as are just.

4 Judgment or order upon admissions of facts

(1) A party may, at any stage of a proceeding where admissions of fact have been made, either on the pleadings or otherwise, apply to the Court or a Justice for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties.

(2) The Court or a Justice may, upon an application under the last preceding subrule, make such order, or give such judgment, as the Court or Justice thinks just.

5 Affidavit of signature to admissions

An affidavit of the solicitor for a party, or of the clerk of the solicitor, of the due signature of admissions made by that party in pursuance of a notice to admit documents or facts, is sufficient evidence of those admissions, if that evidence is required.

6 Service of notice to produce documents

An affidavit of the solicitor for a party, or of the clerk of the solicitor, of the service of a notice to produce, and of the time when it was served, exhibiting a copy of the notice to produce, is sufficient evidence of the service of the notice, and of the time when it was served.

7 Costs of notice where documents unnecessary

lf a notice to admit or produce comprises documents which are not necessary, the costs occasioned by the inclusion of those documents in the notice shall be borne by the party giving the notice.

Order 34 Issues, inquiries and accounts

Do not delete : Division placeholder

1 Issues may be prepared and settled

(1) Where in a proceeding 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.

(2) The issues shall, if the parties differ, be settled by the Court or a Justice.

2 lnquiries and accounts, when directed

The Court or a Justice may, at any stage of a proceeding, direct any necessary inquiries or accounts to be made or taken, notwithstanding that it appears that there is some special or further relief sought, or some special issue to be tried, as to which it is proper that ordinary procedure should apply.

3 Special direction as to mode of taking account

The Court or a Justice may, either by the judgment or order directing an account to be taken or by a subsequent order:

(a) give special directions with regard to the mode in which the account is to be taken or vouched; and

(b) in particular, direct that in taking the account, the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters contained in those books, with liberty to the parties to take such objections as they may be advised.

4 Accounts to be verified by affidavit and items numbered

(1) Where an account is directed to be taken, the accounting party, unless the Court or a Justice otherwise directs, shall make out his account and verify it by affidavit.

(2) The items on each side of the account shall be numbered consecutively.

(3) The account shall be referred to by the affidavit as an exhibit and filed in the Registry in which the proceeding is then pending.

5 Mode of vouching accounts

Upon the taking of an account, the Court or a Justice may direct that the vouchers shall be produced at the office of the solicitor of the accounting party, or at any other convenient place, and that only such items as may be contested or surcharged shall be brought before the Justice in Chambers.

6 Surcharge

A party intending to surcharge an accounting party shall give notice of his intention to the accounting party, stating, so far as he is able, the amount sought to be surcharged and the particulars of the amount in a concise manner.

7 lnquiry as to outstanding personal estate

A judgment or order for a general account of the personal estate of a testator or intestate shall contain a direction for an inquiry as to what parts, if any, of that personal estate are outstanding or undisposed of, unless the Court or a Justice otherwise directs.

8 Accounts and inquiries to be numbered

Where by a judgment or order, whether made in Court or in Chambers, accounts are directed to be taken or inquiries to be made, the direction shall be numbered so that, as far as may be, each distinct account and inquiry may be designated by a number.

9 Just allowances

In taking an account directed by judgment or order, all just allowances shall be made without any direction for that purpose.

10 Registrar to report delay

Where there has been undue delay in the proceedings before the Registrar, he shall report to the Court or Justice by whom an account or inquiry was directed, or a matter or thing referred, the fact of that delay in the proceedings, and shall state, in his opinion, its cause.

11 Expediting proceedings in case of undue delay

(1) If it appears to the Court or a Justice, on the representation of a Registrar or otherwise, that there is undue delay in the prosecution of any accounts or inquiries, or in any other proceedings under a judgment or order, the Court or Justice may:

(a) require the party having the conduct of the proceedings, or any other party, to explain the delay; and

(b) thereupon make such order, as the circumstances of the case require, with regard to:

(i) expediting the proceedings or the conduct or stay of the proceedings; and

(ii) the costs of the proceedings.

(2) For the purposes of the last preceding subrule, a party, or the Principal or a District Registrar, may be directed to summon the persons whose attendance is required, and to conduct such proceedings and carry out such directions as are given.

(3) Any costs of the Registrar shall be paid by such parties or out of such funds as the Court or Justice directs and, if those costs be not otherwise paid, they shall be paid out of such moneys, if any, as may be provided by Parliament.

Order 35 Questions of law and issues of fact without pleadings

I Special Case

1 Special case by consent

(1) The parties to a proceeding may concur in stating the questions of law arising in the proceeding in the form of a special case for the opinion of the Court or of the Full Court.

(2) The special case shall be divided into paragraphs numbered consecutively and shall concisely state such facts and documents as are necessary to enable the Court to decide the questions raised by the special case.

(3) Upon the argument of the case the Court and the parties may refer to the whole contents of the documents stated.

(4) The Court may draw from the facts and documents stated in the special case any inference, whether of fact or law, which might have been drawn from them if proved at a trial.

2 Special case by order before trial

(1) If it appears to the Court or a Justice that there is, in a proceeding, a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact determined, the Court or Justice may make an order accordingly and may direct that question of law to be raised for the opinion of the Court or of the Full Court, either by special case or in such other manner as the Court or Justice deems expedient.

(2) Such other or further proceedings as the decision of the question of law may render unnecessary may thereupon be stayed.

3 Special case to be prepared etc

(1) A special case shall be:

(a) prepared by the plaintiff or the party having the carriage of the proceedings;

(b) signed by the several parties, their counsel or solicitors;

(c) filed by the plaintiff or the party having the carriage of the proceedings in the Registry in which the proceeding is then pending.

(2) A copy of the special case for the use of the Justice, or copies for the use of each of the Justices of the Full Court, shall be left in that Registry.

4 Leave to set down where person under disability is a party

(1) A special case in a proceeding to which an infant or person of unsound mind is a party shall not be set down for argument without leave of the Court or a Justice.

(2) An application for leave under the last preceding subrule must be supported by sufficient evidence that the statements contained in the special case, so far as the same affect the interest of the infant or person of unsound mind, are true.

5 Form of entry for argument

A party may enter a special case for argument before the Court or the Full Court in accordance with the agreement of the parties or the order of the Court or a Justice:

(a) by filing in the Registry in which the proceeding is then pending a memorandum of entry; and

(b) if an infant or person of unsound mind is a party, by producing a copy of the order giving leave to enter the special case for argument.

6 Notice of entry

On the day on which a special case is entered for argument the party entering it shall give written notice of the entry to all other parties.

7 Agreement as to payment of money and costs

(1) The parties to a special case may, if they think fit, enter into an agreement in writing that, on the judgment of the Court being given in the affirmative or negative of the question or questions of law raised by the special 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 a party to another party either with or without costs of the proceedings.

(2) The judgment of the Court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon that judgment forthwith unless otherwise agreed or unless stayed on appeal.

8 Special case heard by Full Court in first instance

A Justice may order that a special case, which has been set down for hearing before a single Justice, shall be argued before a Full Court.

II Issues of Fact without Pleadings

9 Trial of questions of fact agreed upon

(1) When the parties to a proceeding are agreed as to the questions of fact to be decided between them, they may, after writ issued and before judgment, by consent and order of the Court or a Justice, proceed to the trial of those questions of fact without formal pleadings.

(2) The questions may be stated for trial in an issue in the form numbered 31 in the First Schedule, with such variations as the circumstances require.

(3) The issue may be entered for trial and tried in the same manner as an issue joined in an ordinary action.

(4) The proceedings shall be under the control and jurisdiction of the Court or Justice in the same way as the proceedings in an action.

10 Order for payment of sum of money

The Court or a Justice may, by consent of the parties, order that, upon the finding in the affirmative or negative of the issue mentioned in the last preceding rule, 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 a party to another party either with or without the costs of the proceeding.

11 Entry of judgment upon the finding

Upon the finding on an issue such as is mentioned in rule 9 of this Order:

(a) judgment may be entered for the sum so agreed or ascertained as mentioned in the last preceding rule, with or without costs, as the case may be; and

(b) execution may issue upon that judgment forthwith;

unless otherwise agreed or the Court or a Justice otherwise orders for the purpose of giving either party an opportunity for moving to set aside the finding or for a new trial or appealing.

Order 36 Trial

I Place

1 Place of trial or hearing

Unless the place of trial or hearing is fixed by an order of the Court or a Justice, the trial or hearing in a proceeding shall be at the place where is situated the Registry in which the proceeding is pending.

2 Revoking or varying directions as to trial or hearing

Where an order has been made under this Order or Order 31 directing the place, time or mode of hearing or trial, the directions may be subsequently revoked or varied by the Court or a Justice.

II Mode of Trial

3 Mode of trial

(1) In every proceeding the mode of trial shall be by a Justice without a jury unless the Court or a Justice otherwise orders.

(2) The Court or a Justice may at any time revoke or vary an order made under the last preceding subrule upon such terms as it or he thinks fit.

4 Party seeking trial by jury

A party to a proceeding may at any time, not (unless the Court or a Justice otherwise orders) being less than fourteen clear days before the date for which notice of trial has been given, apply to the Court or a Justice for an order under section 77B of the Judiciary Act for trial with a jury.

5 Court may direct trial with jury at any time

If, in a proceeding, it appears to the Court or a Justice before or at the trial that an 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 a previous order.

6 Questions of fact may be tried differently, one before the other

(1) Subject to the provisions of the preceding rules of this Order, the Court or a Justice may, in any proceeding, at any time or from time to time:

(a) order that different questions or issues of fact arising in the proceeding be tried by different modes of trial, or that one or more questions or issues of fact be tried before the others; and

(b) appoint the places for the trials.

(2) The Court or Justice may, for any of the purposes specified in the last preceding subrule, vary a previous order.

7 Number of Justices

A trial of a question or issue of fact with a jury shall be by a single Justice unless the trial is specially ordered to be by two or more Justices.

III Notice of and Entry for Trial

8 Notice of trial by plaintiff

Notice of trial may be given with a joinder of issue closing the pleadings, or with the reply, or at any time after the close of pleadings or after the issues of fact are ready for trial.

9 Notice of trial by defendant — motion to dismiss for want of prosecution

(1) If the plaintiff does not give notice of trial:

(a) within six weeks after he is first entitled to do so;

(b) within the like period after a new trial is ordered; or

a 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.

(2) On the hearing of the application the Court or a Justice may order the action to be dismissed accordingly or make any other appropriate order on such terms as are just.

10 Form of notice of trial

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

11 Length of notice

Twenty-one days’ notice of trial shall be given unless the Court or a Justice otherwise orders or unless the party to whom it is given has consented, or is under terms, to take shorter notice.

12 Entry of cause for trial

(1) Notice of trial shall be given before entering the action or questions or issues for trial.

(2) An action may be entered for trial, notwithstanding that the pleadings are not closed, provided that notice of trial has been given.

13 Avoidance of notice of trial

A notice of trial ceases to have effect unless the party making the entry for trial files in the Registry in which the proceeding is pending a copy of the notice of trial within seven days after the giving of the notice.

14 Notice of trial

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

15 Countermanding notice

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

16 Entry for trial by party served with notice

If the party giving notice of trial omits to enter the action or questions 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 three days after the last-mentioned day, enter the same for trial unless in the meantime the notice has been countermanded under the last preceding rule.

17 Entry by Registrar in list

Upon the filing of the copy of notice of trial the Registrar shall, unless the Court or a Justice otherwise orders, enter the case in the list for trial upon the day mentioned in the notice or as soon after that day as is practicable.

18 Time for entry before commencement of sittings

Unless the Court or a Justice otherwise orders, a notice of trial shall cease to have effect if entry for trial required by these rules is not made at least seven clear days before the day appointed for the commencement of the sittings for which such notice has been given.

19 Setting down of causes on further consideration

(1) When a proceeding has been adjourned for further consideration, it may, after the expiration of seven days, and within fourteen days, from the filing of the Registrar’s certificate, on the written request of the party having the carriage of the proceedings or his solicitor, be set down by the Registrar in the Cause Book or in the Court Book, as the case may be, for further consideration.

(2) After the expiration of fourteen days from the filing of the Registrar’s certificate, the proceedings may be set down by the Registrar on the written request of a party or his solicitor.

(3) The judgment or order adjourning further consideration, or an office copy of that judgment or order, and an office copy of the Registrar’s certificate, or a memorandum of the date when the certificate was filed endorsed on the request by the proper officer, shall be produced on a setting down under this rule.

(4) The request may be in the form numbered 53 in the First Schedule.

(5) When the proceeding is set down under this rule, it shall not be put into the list for further consideration until after the expiration of seven days from the day on which the proceeding was so set down, and shall be marked in the Cause Book or in the Court Book, as the case may be, accordingly.

(6) Notice of the putting of the proceeding into the list for further consideration shall be given by the Registrar to the other parties in the action at least four days before the day for which the proceeding is so marked for further consideration.

(7) The notice under the last preceding subrule may be in the form numbered 54 in the First Schedule.

20 Withdrawal of trial after entering

Upon a request in writing signed by the plaintiff and all other parties (except, where appearance is necessary, such parties as have not appeared) that a proceeding entered for trial be withdrawn from the list of cases for trial for the next sittings of the Court at the place of the Registry in which the case is pending or from that list of cases for any specified length of time or until further notice to the Registrar, the Registrar may comply with the request, subject to any order of the Court or a Justice.

21 Order of trial

If an entry for trial is duly made by a plaintiff and by a defendant, the defendant’s entry shall be vacated.

IV Papers for Justice

22 Copies of pleadings etc to be delivered

(1) The party entering a proceeding for trial shall deliver to the proper officer two copies of the whole of the pleadings and of the issues, or of such other documents as show the questions for trial.

(2) One of the copies shall be for the use of the Justice at the trial.

(3) Where numerous letters or other documents are intended to be put in evidence, a party may provide copies of them, conveniently indexed and arranged, for the use of the Justice, and the costs of so doing shall be costs in the cause unless otherwise ordered.

V Proceedings at Hearing or Trial

23 Default of appearance by defendant at trial

If, when a trial is called on, the plaintiff appears and the defendant does not appear, then the plaintiff:

(a) where he would have been entitled to final judgment for the whole or a part of his claim had default been made in appearance, shall be entitled to judgment for the whole or that part of his claim; and

(b) in all other cases, may prove his claim so far as the burden of proof lies on him.

24 Default of appearance by plaintiff

If, when a trial is called on, the defendant appears and the plaintiff does not appear, the defendant:

(a) if he has no counterclaim, shall be entitled to judgment dismissing the action; or

(b) if he has a counterclaim, then:

(i) may prove the counterclaim so far as the burden of proof lies upon him; or

(ii) in cases where, if plaintiff, he would have been entitled to judgment in default of appearance, shall be entitled to judgment without such proof.

25 Default of appearance by both parties

If, when a trial is called on, neither the plaintiff nor the defendant appears, the case may be struck out and shall thereupon, unless the Court or a Justice otherwise orders, be wholly discontinued, and neither party shall be entitled to costs, but the case may be restored to the list for trial by order of the Court or a Justice upon such terms as are just.

26 Judgment by default may be set aside on terms

(1) 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 may seem fit, upon an application made within fourteen days after the trial.

(2) The application may be made at any sittings of the Court, and thereupon the Court or Justice may order the matter to be re-tried at the same or any other sittings of the Court.

27 Adjournment of trial

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

28 Solicitor through whose default trial is delayed may be ordered to pay costs

Where, upon a trial, it appears that it cannot conveniently proceed by reason of the solicitor for a party:

(a) having neglected to attend personally or by some proper person on his behalf; or

(b) having omitted to deliver any paper necessary for the use of the Court or a Justice which, according to practice, ought to have been delivered;

that solicitor shall personally pay to all or any of the parties such costs as the Justice or Court thinks fit to award.

29 Evidence in mitigation of damages in action for libel or slander

Where, in an action for libel or slander, the defendant does not by his defence assert the truth of the statement complained of, he may not on the trial give evidence in chief, with a view to mitigation of damages:

(a) as to the circumstances in which the libel or slander was published; or

(b) as to the character of the plaintiff;

without the leave of the Justice, unless fourteen days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.

30 Disallowance of vexatious question in cross‑examination

The Justice may in all cases disallow a question put in cross‑examination of a party or other witness which appears to him to be vexatious and not relevant to a matter proper to be enquired into in the case or matter.

31 Judgment to be entered at or after trial

The Justice, at or after trial, shall direct judgment to be entered as he thinks right upon motion for judgment which may be made forthwith without notice.

32 No non-suit

There is no judgment of non-suit.

33 Times of commencement and termination of trial

(1) The Registrar, Associate or other proper officer, present at a hearing or trial, shall make a note of the times at which that hearing or trial commences and terminates, and of the time actually occupied by it on each day on which it takes place, for communication to the taxing officer if required.

(2) The Justice may, if he considers the time occupied has been excessive, certify what time ought to have been so occupied, and that certificate is final.

(3) A certificate of a Justice under the last preceding subrule shall be communicated to the taxing officer by the Registrar, Associate or other proper officer, as the case may be.

34 Entry of findings of fact on trial

Upon a hearing or trial where the officer present at the trial is not the officer by whom judgments ought to be entered, the Associate or other proper officer present at the trial shall enter, in a book to be kept for the purpose:

(a) all such findings of fact as the Justice directs to be entered;

(b) the directions, if any, of the Justice as to judgment; and

35 Certificate for entry of judgment

(1) If the Justice directs that a judgment be entered for a party absolutely, the certificate of the Associate or other proper officer to that effect is a sufficient authority to the proper officer to enter judgment accordingly.

(2) The certificate shall be in the form numbered 32 in the First Schedule, with such variations as the circumstances require.

(3) If the Justice directs that a judgment be entered for a party subject to leave to move, judgment shall be entered accordingly upon the filing of the certificate of the Associate or other proper officer.

VI Writ of Inquiry and Reference as to Damages

36 Application of Rules

Rules 11, 12, 15, 26, 27 and 29 of this Order apply, with the necessary modifications, to an inquiry for the assessment of damages.

37 Writ of trial and inquiry abolished

A writ of trial or of inquiry as to damages shall not be used but the inquiry shall in every case be had and made without a writ for that purpose or as the Court or a Justice directs.

38 Ascertainment of damages where a matter of calculation

(1) Where in a proceeding it appears to the Court or a Justice that the amount of damages sought to be recovered is substantially a matter of calculation, the Court or a Justice may direct that the amount for which final judgment is to be entered shall be ascertained by a Registrar.

(2) The attendance of witnesses and the production of documents before the Registrar may be compelled by subpoena.

(3) The Registrar may adjourn the inquiry from time to time.

(4) The Registrar shall endorse upon the order for referring the amount of damages to him the amount found by him, and shall deliver the order with that endorsement to the person entitled to the damages.

(5) Such and the like proceedings may thereupon be had as to entering judgment, taxation of costs and otherwise as upon the finding of a Justice upon an issue.

39 Damages in respect of continuing cause of action

Where 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 37 Evidence

I Office Copies

1 Obtaining office copies

A person may bring into a Registry a copy of a document in the Registry to be checked and marked and delivered out as an office copy.

2 Office copies admissible in evidence

An office copy of a writ, record, pleading or document filed in the Court is admissible in evidence in all proceedings, and between all persons or parties, to the same extent as the original is admissible.

II Examination of Witnesses upon Commission etc

3 Court or Justice may order depositions to be taken

(1) The Court or a Justice may, in any proceeding, if it appears necessary for the purpose of justice:

(a) make an order for the examination upon oath before the Court, Justice, an officer of the Court or any other person, and at any place, of a witness or person; and

(b) may empower a party to the proceeding to give the deposition in evidence in the proceeding on such terms, if any, as the Court or a Justice directs.

(2) The Court or Justice may give directions with respect to the procedure to be followed in and in relation to the examination.

(3) In this rule deposition includes a document, or a certified copy of a document, produced at the examination and any answers made, or reduced into writing, to any written interrogatories presented at the examination.

4 Letters of request

(1) Where the Court or a Justice so orders, a request to examine witnesses shall be issued.

(2) The forms numbered 45 and 46 in the First Schedule shall be used for the order and the request respectively, with such variations as the circumstances require.

5 Examination of witnesses abroad

Where an order is made for the issue of a request to examine a witness or witnesses in a foreign country with which a Convention in that behalf has been made and extended to the Commonwealth or to a State or Territory:

(a) the party obtaining the order shall file in the registry in which the matter is then pending an undertaking in the form numbered 48 in the First Schedule, with such variations as the circumstances require; and

(b) the undertaking shall be accompanied by:

(i) a request in the form numbered 49 in the First Schedule, with such variations as are directed in the order for its issue;

(ii) a translation of the request in the language of the country in which it is to be executed;

(iii) a copy, and a translation, of the interrogatories, if any, to accompany the request; and

(iv) a copy, and a translation, of the cross-interrogatories, if any.

6 Form of order for examination of witnesses abroad

Where an order is made for the examination of a witness before the British or Australian Consular authority in a foreign country with which a Convention in that behalf has been made and extended to the Commonwealth or to a State or Territory, the order shall be in the form numbered 44 in the First Schedule, with such variations as the circumstances require.

7 Order for attendance of person to produce

(1) The Court or a Justice may, in any proceeding at any stage and upon such terms as it or he thinks reasonable, order the attendance, at any time or place, either before the Court, a Justice, an officer of the Court or other person, of a person, including a party, for the purpose of:

(a) producing any writings or other documents named in the order which the Court or Justice thinks fit to be produced; or

(b) being examined viva voce.

(2) A person shall not be compelled to produce under such an order a writing or other document, or to answer a question, which he could not be compelled to produce or answer at the hearing or trial.

8 Disobedience to order for attendance

A person wilfully disobeying an order requiring his attendance for the purpose of being examined or producing a document is guilty of contempt of court.

9 Expenses of person ordered to attend

A person required to attend for the purpose of being examined or producing a 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.

10 Examiner to have copy of writ and pleadings

Where a witness or person is ordered to be examined before an officer of the Court or before a person appointed for the purpose, the person taking the examination shall be furnished by the party on whose application the order was made with a copy of the writ and pleadings, if any, or with a copy of the documents necessary to inform the person taking the examination of the questions at issue between the parties.

11 Examination, how taken

The examination shall take place in the presence of the parties, or their counsel, solicitors or agents, and a witness is subject to cross‑examination and re-examination.

12 Depositions to be taken down in writing, read over to and signed by witness, or if he refuses, by the examiner

(1) The depositions taken before an officer of the Court, or before another person appointed to take the examination, shall be taken down in writing by, or in the presence of, the examiner, not ordinarily by question and answer, but so as to represent as nearly as may be the statement of the witness.

(2) When completed the depositions shall be read over to the witness and signed by him in the presence of the parties or such of them as attend.

(3) If the witness refuses to sign the depositions, the examiner shall sign them.

(4) The examiner may put down a particular question or answer at length if there should appear any special reason for doing so, and may put a question to the witness as to the meaning of an answer or as to a matter arising in the course of the examination.

(5) When objection is made to a question, the examiner shall:

(a) record in the depositions the question and the objection and his opinion on the objection; and

(b) state his opinion to the counsel, solicitors or parties;

but he may not decide upon the materiality or relevancy of a question.

13 Refusal of witness to attend or to be sworn

(1) If a person duly summoned by subpoena to attend for examination refuses to attend, or if, having attended, he refuses to be sworn or to answer a lawful question, a certificate of that refusal, signed by the examiner, shall be filed at the Registry in which the proceeding is then pending.

(2) Upon the filing of the certificate, 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 a question, as the case may be.

14 Objection by witness to questions

(1) If a witness objects to a question which is put to him before an examiner, the question so put, and the objection of the witness to the question, shall be taken down by the examiner and transmitted by him to the Registry in which the proceeding is then pending, and there filed.

(2) The validity of the objection shall be decided by the Court or a Justice.

15 Depositions to be transmitted to Registry

(1) When the examination of a 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 in which the proceeding is pending, and there filed.

(2) A party may have a copy of the depositions, or of a part of the depositions, on payment of the prescribed fee.

16 Special report by examiner

(1) The person taking the examination of a witness under these rules may make a special report to the Court touching the examination and the conduct or absence of a witness or other person.

(2) The Court or a Justice may direct such proceedings and make such order as upon the report it or he thinks just.

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

(1) Except where otherwise provided by this Order or directed by the Court or a Justice, a deposition shall not be given in evidence at a hearing or trial without the consent of the party against whom it is offered unless the Court or Justice is satisfied that the deponent is dead, beyond the Commonwealth, or unable from sickness or other infirmity or good cause to attend the hearing or trial.

(2) Where the Court or Justice is so satisfied, the deposition, certified under the hand of the person taking the examination, is admissible in evidence, saving all just exceptions, without proof of the signature to the certificate.

18 Oaths

An officer of the Court, or other person directed or authorized to take the examination of a witness or person, or a person nominated or appointed to take the examination of a witness or person pursuant to the provisions of a Convention made with a foreign country and extended to the Commonwealth or to a State or Territory, may administer oaths.

19 Attendance of witness under subpoena for examination or to produce

(1) A party in any proceeding may by subpoena ad testificandum or duces tecum require the attendance of a witness before an officer of the Court, or other person appointed to take the examination, for the purpose of using his evidence in the proceeding in like manner as that witness would be bound to attend and be examined at the hearing or trial.

(2) A person who has made an affidavit to be used on any proceeding shall be bound, on being served with such a subpoena, to attend before the officer or other person for cross-examination.

20 Evidence taken after trial

Evidence taken subsequently to a hearing or trial shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial.

21 Practice as to taking evidence at any stage

The practice with reference to the examination, cross-examination and re-examination of witnesses at a trial is applicable to evidence taken in a proceeding at any stage.

22 Special directions as to taking evidence

The practice of the Court with respect to evidence at a trial, when applied to evidence to be taken before an officer of the Court or other person in a proceeding after the hearing or trial, is subject to any special directions which may be given in any case.

23 Evidence in proceedings subsequent to trial

Evidence taken at a hearing or trial may be used in any subsequent proceedings in the same case.

III Subpoena

24 Form of praecipe for a subpoena

(1) Where it is intended to sue out a subpoena, a praecipe for that purpose in the form numbered 35 in the First Schedule shall be delivered and filed at the Registry in which the proceeding is then pending.

(2) The praecipe shall state the name, or the name of the firm, and the place of business or residence of the solicitor (or of the party himself if he acts in person) intending to sue out the subpoena, and, where the solicitor is acting as agent only, then also the name or firm name and place of business or residence of the principal solicitor.

25 Form of writ of subpoena

A writ of subpoena shall be in one of the forms numbered 37 to 39 in the First Schedule, with such variations as the circumstances require.

26 Subpoenas in District Registry

Where entry for trial or hearing has been made at a District Registry, a writ of subpoena may be sued out by a party, and may be issued out of the Principal Registry or out of a District Registry, notwithstanding that the proceeding is not pending in that Registry.

27 Subpoena for attendance of witness in Chambers

When a subpoena is required for the attendance of a witness for the purpose of proceedings in Chambers, the subpoena shall issue from any Registry upon a note from a Justice.

28 Subpoena for attendance before Registrar

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

29 Number of persons in a subpoena other than a subpoena duces tecum

(1) A subpoena, other than a subpoena duces tecum, may contain any number of names.

(2) Names of witnesses may be inserted in a subpoena after the issue of the writ of subpoena without re-sealing where the subpoena contains the name of at least one witness and the words “and others”.

30 Number of persons in subpoena duces tecum

(1) No more than three persons shall be included in one subpoena duces tecum.

(2) The party suing out a subpoena duces tecum may sue out a subpoena for each person if he thinks fit.

31 Correction of errors in subpoena

In the interval between the suing out and service of a subpoena the party suing out the subpoena may correct any error in the names of parties or witnesses, and may have the writ re-sealed upon leaving a corrected praecipe of the subpoena marked with the words “altered and re-sealed” and signed with the name and address of the solicitor or party suing it out.

32 Service of subpoena

(1) The service of a subpoena shall be effected by delivering a copy of the subpoena, and of the endorsement on the subpoena, and at the same time producing the original.

(2) The copy of a subpoena for a witness served upon him need not contain the name of any witness other than the person served.

33 Affidavit to prove service of subpoena

An affidavit filed for the purpose of proving the service of a subpoena upon a person shall state when, where, how and by whom the service was effected.

34 Within what time subpoena can be served

(1) The service of a subpoena is not valid if not made within twelve weeks after the date of issue of the subpoena.

(2) If the subpoena is served within that period, it remains in force from the date of issue until completion of the trial or hearing of the proceeding in which it is issued.

IV Shorthand Notes

35 Shorthand notes

(1) The Court or a Justice, or, in proceedings before a Registrar, upon the application of a party, the Registrar, may order or direct that viva voce evidence and any rulings or directions shall be taken down in shorthand and transcribed.

(2) The Court, a Justice or the Registrar may give all necessary directions for the appointment of shorthand writers and the transcription of the evidence, rulings and directions.

(3) The costs of and incidental to taking down evidence, rulings and directions in shorthand, and transcribing the shorthand notes, is in the discretion of the Court or a Justice, but the Registrar may certify how in his opinion the costs should be borne.

Order 38 Court experts

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1 Interpretation

In this Order, unless the contrary intention appears:

Court expert means an independent expert appointed under the next succeeding rule to inquire into and report upon a question of fact or opinion.

expert includes a scientific person, a lawyer, a medical man, an engineer, an accountant, an actuary, an architect, a surveyor or other skilled person whose opinion on a question relevant to the issues involved would be received by the Court.

issue for the expert means a question of fact or opinion which a Court expert is required to inquire into and report upon.

2 Application to appoint independent expert

In a case which is to be tried or heard without a jury and which involves a question for an expert witness, the Court or a Justice may in its or his discretion at any time on the application of a party, appoint an independent expert to inquire into and report upon a question of fact or of opinion not involving questions of law or construction.

3 The report of Court expert

(1) The report, so far as it is not accepted by all parties, shall be treated as information furnished to the Court and shall be given such weight as the Court thinks fit.

(2) The report shall be made in writing to the Court, together with such carbon or other copies as the Court requires.

(3) Copies of the report shall be forwarded by the proper officer to the parties or to their solicitors.

4 Cross-examination

(1) A party may, within fourteen days after receipt of a copy of the report or within such other time as the Court or Justice directs, apply for leave to cross-examine the Court expert on his report.

(2) The Court or Justice shall on an application made under the last preceding subrule:

(a) make an order for the cross-examination of the Court expert by all parties at the trial or hearing, he being called and sworn at such stage as the Court at the hearing directs; or

(b) make an order for a like cross-examination before an examiner at such time and place as the Court or Justice directs.

5 Nomination and instructions

(1) The Court expert shall, if possible, be a person agreed between the parties, but, failing agreement, he shall be nominated by the Court or a Justice.

(2) The question or the instruction submitted or given to the Court expert, failing agreement between the parties, shall be settled by the Court or Justice.

6 Experiments

(1) If the Court expert is of the opinion that an experiment or test of any kind (other than an experiment or test of a trifling character) is necessary to enable him to report in a satisfactory manner, he shall communicate the fact to the parties or their solicitors and shall endeavour to arrange with them with respect to the expenses involved, the persons to attend and other similar matters.

(2) Failing agreement between the parties, those matters shall be determined by the Court or Justice.

7 Further report

The Court or Justice may at any time direct the Court expert to make a further or supplemental report which shall be treated as annexed to his original report.

8 Remuneration

(1) The remuneration of the Court expert shall be fixed by the Court or Justice and shall include:

(a) a fee for making the report and a fee for any supplementary report; and

(b) a sum for each day during which the presence of the Court expert is required either in Court or before an examiner.

(2) The parties shall be jointly and severally liable to pay the remuneration so fixed without prejudice to the question by whom it shall be ordered to be paid as part of the costs of the proceedings.

(3) Where the appointment of a Court expert is opposed, the Court or Justice may require the party applying for the appointment to give such security for the remuneration of the Court expert as the Court or Justice thinks proper as a condition of making the appointment.

9 Several issues

Where more than one issue for the expert arises, the Court or a Justice may appoint more than one Court expert to inquire into and report on the separate issues so arising, and these rules apply to each Court expert so appointed.

10 Costs of proceedings

In taxing the costs incurred in proceedings in which a Court expert has been appointed, such just and reasonable charges and expenses shall be allowed as appear to have been properly incurred in obtaining the advice of an expert, whether called as a witness or not, with respect to:

(a) whether a proceeding should be brought or defended;

(b) whether the report or reports of the Court expert should be accepted to any and what extent;

(d) if proper, the attendance in Court of the expert so employed.

Order 39 Affidavits and depositions

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1 Evidence on motions etc

(1) Upon a motion, petition or summons, evidence may be given by affidavit.

(2) The Court or a Justice may, on the application of a party, order the attendance for cross-examination of the person making the affidavit.

(3) If the person does not attend, his affidavit shall not be read as evidence without the leave of the Court or a Justice.

2 Title of affidavits

(1) An affidavit shall be entitled in the proceeding, if any, in which it is sworn, and bear the number, if any, of the proceeding.

(2) When there are more than one plaintiff or defendant, it is sufficient to state the full name of the first plaintiff or defendant, respectively, and that there are other plaintiffs or defendants, as the case may be.

(3) The costs occasioned by unnecessary prolixity in a title shall be disallowed by the taxing officer.

3 Contents of affidavit

(1) An affidavit shall, except as provided by subrule (3) of this rule, be confined to such facts as the witness is able of his own knowledge to prove.

(2) The costs of an affidavit which unnecessarily sets forth matters of hearsay, argumentative matter or copies of or extracts from documents shall be paid by the party filing the affidavit.

(3) On interlocutory proceedings or by leave under Order 31, rule 2, an affidavit may contain statements of information and belief with the sources and grounds of that information and belief.

4 Exhibits

(1) Documents and other objects and things referred to by affidavit shall not be annexed to the affidavit or referred to in the affidavit as annexed, but shall be referred to as exhibits.

(2) Instead of making a document an exhibit to an affidavit the relevant portion of the document may be included in the body of the affidavit and the party filing the affidavit shall in that case produce the document whenever the affidavit is used.

5 Certificate on exhibit

An exhibit to an affidavit shall have endorsed on it the short title of the proceeding, if any, and the number, if any, of the proceeding, and a certificate signed by the person before whom the affidavit is sworn or taken identifying the exhibit with the affidavit to which it is an exhibit.

6 Use of figures

In an affidavit for use in Court or in Chambers, dates and sums of money shall be written or printed in figures instead of words.

7 Before whom affidavits may be sworn

(1) An affidavit may be sworn before a Justice, a Registrar, a person having authority to administer an oath and to take and receive affidavits for the purposes of the Federal Court of Australia, or the Supreme Court of a State or Territory, or a Justice of the Peace, whose name, title and the date when and the place where the affidavit was sworn shall be stated in the jurat.

(2) Where the seal or signature, as the case may be, of a person authorized under this rule to take an affidavit is attached, appended or subscribed to an affidavit, the Court, the Justices and officers of the Court shall take judicial notice of that seal or signature.

(3) A person, other than a Justice of the Peace, before whom an affidavit is sworn or affirmed, or who attests the execution of an instrument of security, may charge the fees set out in the following table:

	$
For each oath or affirmation........................	0.25
If not at Registry or Commissioner’s Office............	0.50
If more than three miles from Registry or Commissioner’s Office, in addition to travelling expenses	2.10
For signing an exhibit............................	0.10
For attesting each instrument of security, for each surety.....	0.50

8 Affidavits etc how to be sworn and taken abroad

(1) An examination, affidavit, declaration or affirmation in proceedings pending in the Court may be sworn and taken in a place under the dominion of Her Majesty out of the Commonwealth before a Judge, Court, Notary Public or person lawfully authorized to administer oaths in that place, and in foreign parts out of Her Majesty’s dominions, before any of Her Majesty’s Consuls or Vice-Consuls or a Notary Public.

(2) The title of the Court or person before whom an examination, affidavit, declaration or affirmation is sworn and taken under the last preceding subrule, and the date when and the place where it was so sworn and taken, shall be stated in that examination, affidavit, declaration or affirmation.

(3) Where the seal or signature, as the case may be, of a Court or person authorized under this rule to take an examination, affidavit, declaration or affirmation is attached, appended or subscribed to an examination, affidavit, declaration, affirmation, or any other deed or document, the Court, the Justices and officers of the Court shall take judicial notice of the seal or signature.

9 Form of affidavits

(1) An affidavit shall be drawn up in the first person and divided into paragraphs.

(2) Every paragraph in an affidavit shall be numbered consecutively and, as nearly as may be, confined to a distinct portion of the subject.

(3) An affidavit shall be written, typewritten or printed.

(4) Costs shall not be allowed for an affidavit or part of an affidavit substantially departing from this rule.

10 Description and abode of deponent to be stated

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

11 Affidavits made by two or more deponents

(1) Subject to the next succeeding subrule, in an affidavit made by two or more deponents the names of the several deponents making the affidavits shall be inserted at length in the jurat.

(2) If the affidavit of all the deponents is taken at one time before the same person, it shall be sufficient to state that it was sworn by both, or all, of the “abovenamed” deponents.

12 Filing before using

An affidavit to be used before the Court or a Justice shall be filed before it is used unless otherwise directed by the Court or a Justice.

13 Affidavits to be filed in proper Registry

(1) An affidavit used in any proceeding shall be filed in the proper Registry.

(2) There shall be endorsed on an affidavit a note stating the name of the deponent, the date of swearing and on whose behalf it is filed.

(3) An affidavit shall not be filed or used without such a note unless the Court or a Justice otherwise directs.

14 Scandalous matter

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

15 Alterations in affidavits

When in the jurat or body of an affidavit there is an interlineation, alteration or erasure, the affidavit shall not, without leave of the Court or a Justice, be read or made use of in any proceeding unless:

(a) the interlineation or alteration, not being an alteration by erasure, is authenticated by the initials of the person taking the affidavit, or, if taken at the Principal or a District Registry, either by his initials or by the stamp of that Registry; and

(b) in the case of an erasure, the words or figures appearing at the time of taking the affidavit to be written on the erasure are rewritten and signed or initialled in the margin of the affidavit by the person taking it.

16 Affidavits by illiterate or blind persons

(1) Where an affidavit is sworn by a deponent who appears to the person before whom the affidavit is taken to be illiterate or blind, that person shall certify in the jurat that:

(a) the affidavit was read in his presence to the deponent;

(b) the deponent seemed perfectly to understand it; and

(2) The affidavit shall not be used in evidence without such a certificate unless the Court or a Justice is otherwise satisfied that the affidavit was read over to the deponent and that he appeared to understand it perfectly.

17 Affirmations

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 declaration of the deponent.

18 Use of defective affidavit

The Court or a Justice may receive an affidavit notwithstanding a defect by misdescription of parties or otherwise in the title or jurat or any other irregularity in its form, and may direct a memorandum to be made on the document that it has been so received.

21 Special times for filing affidavits

Where a special time is limited for filing affidavits, an affidavit filed after that time shall not be used except by leave of the Court or a Justice.

22 Affidavits in support of ex parte applications

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

23 Copies of affidavits to be served

(1) Copies of an affidavit intended to be used by a party in a proceeding in Court or in Chambers or before a Registrar shall be delivered to all other parties at the same time as the notice, if any, of the application to be made in the proceeding, or a reasonable time before the hearing.

(2) When a party intends to adduce oral evidence on the hearing of an application or upon a reference, he shall serve on all other parties notice of that intention a reasonable time before the hearing.

24 Alterations in accounts to be initialled

An alteration in an account verified by affidavit to be left at Chambers or in a Registry shall be marked with the initials of the person before whom the affidavit is sworn or taken, and the alteration shall not be made by erasure.

Order 40 Exhibits

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1 List of exhibits

(1) The Associate, Registrar or other proper officer:

(a) shall take charge of every document or object put in as an exhibit during the trial or hearing of any proceeding;

(b) shall mark or label every exhibit so as to indicate the party by whom the exhibit was put in and so that all exhibits put in by a party are lettered or numbered consecutively; and

(c) shall cause a list of all the exhibits in the proceeding to be made in accordance with form numbered 50 in the First Schedule.

(2) The list of exhibits when completed shall form part of the record of the proceeding.

(3) For the purpose of this Order, a bundle of documents may be treated and counted as one exhibit.

2 Office copy of list of exhibits

(1) A party may apply for and, on payment of the prescribed fee, obtain an office copy of the list of exhibits for the purpose of an appeal.

(2) Where there is an appeal, the appellant shall include an office copy of the list of exhibits amongst the documents supplied to the proper officer for the purpose of the appeal.

Order 41 New trials

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1 New trial of cause heard without a jury

(1) If, after a trial or hearing of a cause or matter before a Justice without a jury, an order setting aside the judgment or a finding, or directing a new trial, is sought upon the ground of discovery of fresh evidence, fraud, surprise or any other ground not falling within the Appellate Jurisdiction, the application shall be made to a Full Court by motion on notice.

(2) The application may be made although an appeal against the judgment is instituted by the applicant and, in such a case, the proceedings may be combined.

2 New trial of cause tried with a jury

(1) An 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 or a finding made by a jury, shall be made to a Full Court by motion on notice.

(2) No rule nisi or order to show cause, or other formal proceeding, other than the notice of motion, shall be made or taken.

(3) The notice of motion shall state the grounds of the application and whether the whole or part only of the verdict, finding or judgment is complained of.

3 Service of notice of motion

(1) The notice of motion shall be served upon the party in whose favour the judgment was given within twenty-one days after 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.

(2) In the computation of the period referred to in this rule, the time of the vacations shall be included.

4 Application of Rules relating to appeals

The provisions of these rules relating to appeals apply, so far as applicable, to applications under this Order.

5 Hearing of application

(1) 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, if any, of the jury.

(2) If the Court is of opinion that it has not sufficient materials before it to enable it to give judgment, it may direct that the motion stand over for further consideration, and may also direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it thinks fit.

6 Evidence of Judge’s direction

If, upon the hearing of an 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 the jury, the Court shall have regard to the Justice’s notes and to such evidence or materials as the Court deems expedient.

Order 42 Motion for judgment

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1 Judgment on motion for judgment

Except where by an Act or law or by these rules it is provided that judgment may be obtained in any other manner, the judgment of the Court shall be obtained by motion for judgment.

2 Setting down motion for judgment where issues have been directed to be tried

(1) Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, the plaintiff may set down a motion for judgment as soon as those issues or questions have been determined.

(2) If the plaintiff does not set down such a motion and give notice thereof to the other parties within seven days after his right so to do has arisen, then, after the expiration of that period of seven days, a defendant may set down a motion for judgment and give notice thereof to the other parties.

3 Where some only of issues directed have been tried, any party may apply to set down action on motion for judgment

(1) Where:

(a) issues have been ordered to be tried, or issues or questions of fact to be determined in any manner; and

(b) some only of those issues or questions of fact have been tried or determined;

a party who considers that the result of the trial or determination:

(d) renders it desirable that the trial or determination of them should be postponed;

may apply to the Court or a Justice for leave to set down a motion for judgment without waiting for that trial or determination.

(2) The Court or a Justice may, if satisfied of the expediency of so doing, give such leave, upon such terms, if any, as appears just, and may give any directions which appear desirable as to postponing the trial of the other issues of fact.

4 Motion to be set down within one year

A motion for judgment shall 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 motion first became entitled so to do.

5 Where judgment given etc on motion for judgment

Upon a motion for judgment, the Court may draw all inferences of fact, not inconsistent with the verdict or findings of the jury if the trial was with a jury, and:

(a) 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

(b) 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 direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it thinks fit.

Order 43 Entry of judgments

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1 Mode of entry

(1) Every judgment shall be entered by the proper officer in a book kept for that purpose.

(2) The party entering the judgment shall deliver to the officer a copy of the pleadings, if any, not already filed.

2 Recital regarding service

In a judgment, whether in default of appearance or defence or after hearing or trial or otherwise, the party entering the judgment is, if he so desires, entitled to have recited in the judgment a statement as to the manner and place in and at which the service of the writ of summons or other originating process by which the proceedings were commenced was effected.

3 Date of judgment pronounced in Court

(1) When a judgment is pronounced by the Court, the entry of the judgment shall, subject to the next succeeding subrule, be dated as of the day on which the judgment is pronounced, unless the Court otherwise orders, and the judgment shall take effect from that date.

(2) By special leave of the Court, a judgment may be ante-dated or post-dated.

4 Date of entry of other judgments

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 the entry, and the judgment shall take effect from that date.

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

Where a judgment or order made in a proceeding requires a person to do an act:

(a) it shall state the time, or the time after service of the judgment or order, within which the act is to be done; and

(b) there shall be endorsed upon the copy of the judgment or order served upon the person required to obey it a memorandum in the following words or to the following effect:

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

6 Judgment on production of affidavit or document

When it is provided that a judgment may be entered upon the filing of an affidavit or production of a document, the officer shall examine the affidavit or document produced and, if it is regular and contains all that is by law required, he shall enter judgment accordingly.

7 Judgment on production of order or certificate

When it is provided that a judgment may be entered pursuant to an order or certificate, or to the return of a writ, the production of the order or certificate sealed with the seal of the Court, or of the return, is sufficient authority to the officer to enter judgment accordingly.

8 Judgment on Registrar’s certificate

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

9 Judgment by consent when party appears by a solicitor

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

10 Consent of party in person

When a plaintiff sues in person, or a defendant has not appeared or has appeared in person, a consent order for entering judgment against that plaintiff or defendant, as the case may be, shall not be made unless he attends before a Justice and gives his consent in person, or unless his written consent, if he is not a barrister or solicitor, is attested by a solicitor acting on his behalf.

11 Entry of satisfaction

(1) A memorandum of satisfaction of a judgment may be entered upon a consent to the entry being filed in the Registry in which the proceeding is then pending.

(2) The consent to the entry shall be signed by the party entitled to the benefit of the judgment and attested and verified by the affidavit of the attesting witness.

(3) lf the attesting witness is not a barrister or solicitor, the approval of a Justice shall be obtained, and that approval may be endorsed on the affidavit.

Order 43A Interest on judgments

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1 Every judgment debt under a judgment of the High Court of Australia shall carry interest at the prescribed rate of interest applicable to judgments of the Supreme Court of the State or Territory in which judgment is entered, from the date of entry of judgment.

2 Every award of costs under a judgment of the High Court of Australia shall carry interest at the prescribed rate of interest applicable to judgments of the Supreme Court of the State or Territory in which the proceeding is pending, from the date of the certificate of taxation quantifying same.

Order 44 Drawing up judgments and orders

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1 By whom judgments and orders to be drawn up

A judgment or order, whether given or made in Court or in Chambers, or by default, shall be drawn up by a Registrar, or under his direction, unless otherwise directed by the Court or a Justice.

2 Documents to be filed before judgment or order signed

A judgment or order founded, in whole or in part, on a petition, affidavits, written admissions or other written documents, shall not be signed until the petition, admissions, affidavits or other written documents have been filed in the Registry in which the proceeding is pending.

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

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

4 Registrar may require party to submit draft

(1) The Registrar may require the party bespeaking a judgment or order to prepare a draft of it and leave the draft in the Registry for his use or assistance.

(2) The Registrar may accept the draft so prepared and left as his own draft of the judgment or order, with such alterations, if any, as he thinks fit.

5 Time for bespeaking judgment or order

A judgment or order shall be bespoken, and the requisite documents mentioned in rule 3 of this Order shall be left with the Registrar, within seven days after the judgment or order is finally given or made by the Court or Justice.

6 Where judgment or order not bespoken

If a 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.

7 Appointment for settling judgment or order

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 it.

8 Notice of appointment to be served on opposite party

(1) A notice of the appointment shall be served on the opposite party three clear days at least before the time appointed for settling the draft.

(2) The party serving the notice and the party served shall attend the appointment and shall produce to the Registrar counsel’s briefs, if any, and such other documents as are necessary to enable him to settle the draft.

9 Service of notice of appointment

Service of the notice of appointment shall be effected by leaving it at the address for service of the party to be served or by transmitting it by post to the party at that address.

10 Proof of service

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

11 Appointment for passing judgment or order

(1) When the draft has been settled by the Registrar, he shall name a time in the presence of several parties, or else deliver out an appointment in writing of a time, for passing the judgment or order.

(2) Where he delivers out an appointment in writing of a time, 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 of this Order with reference to an appointment to settle the draft of a judgment or order.

12 Default in attending appointment with documents

(1) If a party fails:

(a) to attend the Registrar’s appointment for settling the draft of a judgment or order; or

(b) fails to produce his counsel’s briefs and such other documents as the Registrar may require to enable him to settle the draft or to pass the judgment or order;

the Registrar may proceed to settle the draft, or to pass the judgment or order, in his absence.

(2) Where the Registrar proceeds under the last preceding subrule, he may:

(a) dispense with the production of counsel’s briefs or of the requisite documents or papers and act upon such evidence, as he thinks fit, of the appearance by counsel of the party failing to attend; or

(b) require the matter to be mentioned to the Court or a Justice.

13 Adjournment of appointments

The Registrar may adjourn an appointment for settling the draft of a judgment or order, or for passing a judgment or order, to such time as he thinks fit, and the parties who attended the appointment shall attend upon the adjournment without further notice.

14 Settling and passing judgment or order without appointment

Notwithstanding the preceding rules of this Order, the Registrar may, where he thinks it expedient so to do, settle and pass a judgment or order without making an appointment for either purpose and without notice to any party.

15 Party to engross judgment or order

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

16 Judgments and orders to be filed; duplicates

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

(2) A duplicate of a judgment or order shall, one clear day after it has been entered, or, 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.

(3) When a rule or order or the practice of the Court requires the production of a judgment or order, it is sufficient to produce the duplicate.

(4) 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.

(5) 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 and under the direction of the Registrar, be amended in accordance with the amendment of the original order.

(6) The amendment in the duplicate shall be sealed under the direction of the Registrar.

17 Certificates for special allowance

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

18 When orders need not be drawn up

(1) When an order is made which does not embody any special terms or include any special directions, but only:

(a) gives leave to an officer of the Court, other than a solicitor, to do some act;

(b) enlarges the time for taking a proceeding or for doing an act;

(i) to issue a writ or originating process, other than a writ of attachment;

(ii) to amend a writ or originating process or pleadings;

(iii) to enter a judgment or order nunc pro tunc; or

(iv) to file a document or take a document off the file; or

(d) directs a clerical mistake or an error appearing in a judgment or order to be corrected;

it is not necessary to draw up the order unless the Court or Justice so directs.

(2) When, under the last preceding subrule, it is not necessary to draw up an order, the production of a note or memorandum of the order, which may be made upon any document filed in the proceeding, signed or initialled by the Justice or Registrar is sufficient authority for the enlargement of time, issue, amendment, entry, filing or other act.

(3) A direction that the costs of such an order shall be costs in a cause or matter shall be deemed a special direction within the meaning of this rule.

(4) The person, or solicitor of the person, on whose application the order is made shall forthwith give notice in writing of the order to such person, if any, as would, if this rule had not been made, have been required to be served with the order.

19 Date of order

An order which is drawn up shall be dated as of the day on which it was made, unless the Court or a Justice otherwise directs, and shall take effect accordingly.

20 Authentication

(1) A judgment or order shall be marked to show by whom it was made.

(2) An order made in Chambers is sufficiently authenticated if signed by the Registrar and sealed in accordance with the provisions of Order 58 with the Office Seal.

(3) A judgment or order, other than an order made in Chambers, shall be signed by the Registrar and sealed in accordance with the provisions of Order 58 with the Office Seal.

21 Entry of judgments and orders etc

(1) A judgment or order, when settled and passed, shall be filed by the party having the carriage thereof.

(2) An entry of the filing shall be made in books to be kept for that purpose.

(3) A judgment or order when filed shall be deemed to be duly entered, and the date of the filing shall be deemed the date of entry.

(4) In the case of a procedure order drawn up in Chambers, entry of the order is not necessary before an attachment can be issued for disobedience of it.

(5) An order which is not required to be formally drawn up before being acted upon need not be entered unless it becomes necessary to serve the order for any purpose.

22 Application to add to or vary

A party may, within seven days after a draft judgment or order has been settled by the Registrar, apply to the Court or Justice to add to or alter it for the purpose of making it correspond with the judgment or order of the Court as pronounced.

23 Consent orders

(1) A written consent of the parties to a proceeding, or their solicitors, to the making of an order in the proceeding may be filed in the Registry in which the proceeding is pending.

(2) Notwithstanding anything contained in these rules, upon the written consent being so filed, the Registrar shall bring the matter before a Justice who, if he thinks fit, may, without any other application being made to him, direct the Registrar to draw up, sign and seal an order in accordance with the terms of the consent.

(3) The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Justice.

Order 45 Execution

I General

1 Execution to issue within 6 years

As between the original parties to a judgment or order, execution may issue at any time within six years from the recovery of the judgment or the date of the order.

2 Leave to issue execution in certain cases

(1) Where:

(a) six years have elapsed since the judgment or date of the order, or a change has taken place by death or otherwise in the parties entitled or liable to execution;

(b) a husband is entitled or liable to execution upon a judgment or order for or against his wife;

(d) a party is entitled to execution against any shareholders of a company upon a judgment recorded against the company, or against a public officer or other person representing the company;

the party alleging himself to be entitled to execution may apply on summons to the Court or a Justice for leave to issue execution accordingly.

(2) The Court or Justice may:

(a) if satisfied that the party so applying is entitled to issue execution, make an order to that effect; or

(b) order that an issue or question necessary to determine the rights of the parties shall be tried in a way in which an issue or question may be tried;

and impose such terms as to costs or otherwise as are just.

3 Orders enforceable like judgments

An order of the Court or a Justice in a proceeding may be enforced against all persons bound by the order in the same manner as a judgment to the same effect.

4 Court may order act to be done at expense of party refusing

(1) If a mandamus, a mandatory order, an injunction or a judgment for the specific performance of a contract is not complied with, the Court or a Justice, whether or not proceedings for contempt have been taken against the disobedient party, may direct that the act required to be done may be done so far as practicable by the party by whom the judgment or order has been obtained, or by another person appointed by the Court or Justice, at the cost of the disobedient party.

(2) Upon the act being done, the expenses incurred may be ascertained in such manner as the Court or a Justice directs and execution may issue for the amount so ascertained and costs.

5 Enforcing judgment or order against corporation

Where a judgment or order against a corporation is wilfully disobeyed, it may, by leave of the Court or a Justice, be enforced by sequestration against the corporate property, by attachment against the directors or other officers of the corporation or by writ of sequestration against their property.

6 Enforcing award

An award may, with the leave of the Court or a Justice, and on such terms as are just, be enforced at any time though the time for moving to set it aside has not elapsed.

7 No proceeding by audita querela

A proceeding by audita querela shall not be used, but a party against whom judgment has been given may apply to the Court or a Justice for a stay of execution or other relief against the judgment upon the ground of facts which have arisen too late to be pleaded, and the Court or Justice may give such relief, and upon such terms, as are just.

II Discovery in Aid of Execution

8 Examination of judgment debtor as to debts owing to him

(1) When a judgment or order is for the recovery or payment of money, the party entitled to enforce it may apply ex parte to the Court or a Justice for an order that:

(a) the debtor liable under the judgment or order; or

(b) in the case of a corporation or other body of persons empowered by a law to sue or be sued (whether in its own name or in the name of an officer or other person), an officer of that corporation or other body;

attend and be orally examined before a Justice or an officer of the Court as to:

(d) whether the debtor has any and what other property or means of satisfying the judgment or order.

(2) The Court or Justice may make an order for the attendance and the examination of the debtor, or of any other person, and for the production or impounding of any books or documents.

9 Difficulty in enforcing judgment

Where, in the case of a judgment or order, other than a judgment or order for the recovery or payment of money, a difficulty arises in or about its execution or enforcement, a party interested may apply to the Court or a Justice for, and the Court or Justice on that application may make, such order for the attendance and examination of a party or other person, or otherwise, as is just, for giving effect to the judgment or order.

10 Impounded documents

(1) Subject to the next succeeding subrule, impounded documents shall not be delivered out of the custody of the Court except upon an order made on motion in open Court, and inspection of impounded documents shall not be permitted except upon a written order of the Court or Justice upon whose order they were impounded.

(2) Impounded documents in the custody of the Court shall, upon the request in writing of the Attorney-General, the Solicitor-General or the Australian Government Solicitor, be given into the custody of the person so requesting.

11 Examination before Registrar

(1) The examination referred to in rules 8 and 9 of this Order may be ordered to take place before the Principal or a District Registrar.

(2) A difficulty that arises in the course of such an examination may be referred to a Justice for determination or direction, and he may determine the difficulty or give such directions as he deems fit.

(3) When the examination takes place before a Registrar, the costs of the application for the examination and of the examination, and of any proceedings arising from or incidential to the examination, are in the discretion of the Court or Justice making the order, and may be dealt with by it or him either before or after the examination.

III Attachment and Committal

12 For performance of an act

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

13 Judgment to abstain from an act

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

14 Application for leave to issue writ of attachment

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

15 Court may make peremptory order before issue of writ

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

16 Order 56 to apply

The provisions of Order 56 (other than rule 1 of that Order) relating to committal for contempt of Court apply in the case of applications for attachment or committal for disobedience to judgments or orders, or for failure to perform or observe such an undertaking as is mentioned in the last preceding rule.

Order 46 Attachment of debts

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1 Order for attachment of debts

(1) A Registrar may:

(a) upon the ex parte application of a person who has obtained a judgment or order for the recovery or payment of money, either before or after an oral examination of the debtor liable under that judgment or order; and

(b) upon affidavit by that person or his solicitor, or by another person who can swear to the facts, stating:

(i) that the judgment has been recovered or the order made;

(ii) that the judgment or order is still unsatisfied, and to what amount; and

(iii) either that in fact or that according to a statement made by the debtor upon his oral examination or otherwise another person is indebted to the debtor, either alone or jointly with another person, and is within the Commonwealth;

issue a summons calling on that other person to shew cause why all debts owing or accruing from that other person (in this Order called the garnishee) to the debtor, whether alone or jointly with another person, should not be attached to answer the judgment or order, together with the costs of the garnishee proceedings.

(2) Upon the hearing of the summons, the Court or Justice may order that the garnishee shall pay to the person who has obtained the judgment or order the debt due from him to the debtor, or so much of that debt as is sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.

(3) The summons shall be served on the garnishee or his solicitor, and, unless otherwise ordered, on the judgment debtor or his solicitor, at least seven days before the day of hearing.

(4) Service on the judgment debtor may be made in manner provided by Order 62, rule 3:

(a) at his address for service if he has appeared in the proceeding and given an address for service;

(b) on his solicitor if he has appeared by solicitor; or

(c) if there has been no appearance, at his usual residence or place of business, or in such other manner as the Court or Justice directs.

2 Service of summons to bind debts

Service on or notice to the garnishee of a summons issued under rule 1 of this Order binds in his hands all debts owing or accruing from him to the debtor whether alone or jointly with another person.

3 Garnishee order against a bank

Where:

(a) the garnishee is the Commonwealth Bank of Australia, a Savings Bank or a corporation which:

(i) carries on in the Commonwealth the business of banking; or

(ii) as part of its ordinary trading operations receives money on deposit on current account and advances moneys on overdrawn current account; and

(b) the debt is money held by that bank or corporation for the deposit or current account respectively of the debtor (whether alone or jointly with another person);

the debt is bound by the summons only to the extent of a sum to be specified in the summons at the time of its issue, being such sum as will be sufficient in the opinion of the Registrar to provide for the payment of the amount of the judgment debt, interest and a reasonable sum for costs.

4 Execution against garnishee

(1) The garnishee may pay into Court the amount due from him to the debtor (whether alone or jointly with another person) or an amount equal to the amount payable under the judgment or order.

(2) If the garnishee does not do so and:

(a) appears upon the hearing of the summons and does not dispute the debt due, or claimed to be due, from him to the debtor (whether alone or jointly with another person); or

(b) does not appear upon the hearing of the summons;

the Court or Justice may order execution to issue against him, and it may issue accordingly, without any previous writ or process, to levy the amount due from the garnishee to the debtor, or so much of that amount as is sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.

5 Trial of liability of garnishee

If the garnishee disputes his liability, the Court or a Justice may determine the question of his liability and may order that execution shall issue against him, or may order that an issue or question necessary for determining his liability be tried or determined in a manner in which an issue or question in an action may be tried or determined.

6 Lien or claim of third person on debt

When, in proceedings to obtain an attachment of a debt, it is suggested by the garnishee, or otherwise appears, that the debt sought to be attached belongs or may belong to a third person, or that a third person has or may have an interest in or a lien or charge upon it, the Court or a Justice may order that third party to appear and state the nature and particulars of his claim upon the debt.

7 Trial of claim of third person and order thereon or on non‑appearance

Where:

(a) the Court or a Justice has heard the allegations of a third person under an order made under the last preceding rule and of any other person whom, by the same or a subsequent order, the Court or a Justice has ordered to appear; or

(b) the third person does not appear when ordered;

the Court or Justice may:

(c) order execution to issue against the garnishee to levy the amount due from the garnishee to the debtor (whether alone or jointly with another person) or so much of that amount as is sufficient to satisfy the judgment or order, together with costs of the garnishee proceedings;

(d) order an issue or question to be tried or determined according to the preceding rules of this Order;

(e) bar the claim of the third person; or

(f) make such other order as the Court or Justice thinks fit, upon such terms, in all cases, with respect to the interest, lien or charge (if any) of the third person, and to costs, as the Court or Justice thinks just and reasonable.

8 Payment by or execution on garnishee a valid discharge

Payment made by, or execution levied upon, the garnishee in proceedings under this Order is a valid discharge to him, as against the debtor liable under a judgment or order, to the extent of the amount paid or levied, notwithstanding that the proceeding may be afterwards set aside or the judgment or order reversed.

9 Debt attachment book

(1) A debt attachment book shall be kept by the proper officer in each Registry.

(2) In the debt attachment book entries shall be made of the attachment, and proceedings on the attachment, with names, dates and statements of the amount recovered, and otherwise.

(3) A copy of an entry in a debt attachment book may be taken by a person upon an application to the proper officer of the Registry in which the entries have been made, and upon payment of the prescribed fee.

10 Costs of proceedings

(1) The costs of an application for an attachment of debts, and of proceedings arising from or incidental to the application, are in the discretion of the Court or a Justice.

(2) The costs of the judgment creditor shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order, and in priority to the amount of the judgment debt.

(3) The Court or Justice may order the creditor to pay the costs of the garnishee and may allow him to add them to his own costs of the garnishee proceedings.

11 Refusal of order in certain cases

The Court or Justice may refuse to order the attachment of a debt where, from the smallness of the amount to be recovered or of the debt sought to be attached or otherwise, the remedy sought would be worthless or vexatious.

Order 47 Charging orders and stop orders

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1 Order charging funds in Court

(1) When a judgment debtor is the beneficial owner of, or has a beneficial interest in, any funds in Court, or the income arising from those funds, the Court or a Justice, upon the application of the judgment creditor, may order that the funds or any of them, or the whole or a part of the judgment debtor’s interest in the funds or income, shall stand charged with payment of the judgment debt.

(2) The order shall, in the first instance, be an order to show cause only and may be made ex parte.

(3) An order nisi or order absolute made under this rule shall be served on the judgment debtor and on the Registrar of the Registry in which the funds are.

(4) After service upon him of the order nisi, the judgment debtor is not capable of making a valid disposition of any funds charged by the order until the order is discharged.

(5) An attempted disposition contrary to the last preceding subrule is of no validity or effect against the judgment creditor.

(6) After service upon him of the order nisi, the Registrar shall hold the funds charged by the order to abide the order of the Court or a Justice unless and until the order nisi is discharged.

(7) At or after the time of making the order absolute, the Court or a Justice, upon proof that the judgment debt or a part of the judgment debt remains unsatisfied, may make such orders and give such directions as are necessary to procure the satisfaction of the judgment debt, or a part of the judgment debt, out of the funds charged by the order.

(8) The Court or a Justice may, at any time, upon the application of the judgment debtor or of a person interested, vary or discharge such an order nisi or order absolute.

(9) In this rule, funds or funds in Court means any money, government security or annuity, or other securities, including shares, or a part of them, standing or to be placed to the credit of an account in the books of the Court.

2 Costs occasioned by stop orders

When:

(a) any moneys or securities are in Court to the general credit of a proceeding or to the account of a class of persons; and

(b) an order is made to prevent the transfer or payment of the moneys or securities, or a part of them, without notice to the assignee of a person entitled in expectancy or otherwise to a share or portion of the moneys or securities;

the person by whom the order has been obtained is liable, at the discretion of the Court or a Justice, to pay any costs, charges and expenses which, by reason of the order having been obtained, are occasioned to a party to the proceedings, or to a person interested in those moneys or securities.

3 Service of application for stop order

A person moving on notice or taking out a summons for such an order as is mentioned in the last preceding rule shall not be required to serve the notice or summons upon the parties to the proceedings, or upon the persons interested in such parts of the moneys or securities as are not sought to be affected by the order.

Order 48 Proceedings by and against firms and persons carrying on business in names other than their own

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1 Proceedings by and against firms within the Commonwealth

(1) Any two or more persons claiming, or alleged to be liable, as co-partners and carrying on business within the Commonwealth may sue or be sued in the name of the firm in which those persons were co-partners at the time of the accruing of the cause of action.

(2) A party may, in such case, apply by summons to a Justice for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, co-partners in the firm, to be furnished in such manner, and verified on oath or otherwise, as the Justice directs.

2 Disclosure of partners’ names

(1) When a writ or other originating process is sued out in the name of a firm, the plaintiffs or their solicitors shall, on demand in writing by or on behalf of another party to the proceedings, forthwith declare in writing the names and places of residence of the persons constituting the firm on whose behalf the proceeding is commenced.

(2) If the plaintiffs or their solicitors fail to comply with the demand, all proceedings may, upon an application for that purpose, be stayed upon such terms as the Court or a Justice directs.

(3) When the names of the partners are declared, the proceeding shall continue in the same manner, and the same consequences in all respects shall follow, as if they had been named as the plaintiffs in the writ or other originating process, but all the proceedings shall, nevertheless, continue in the name of the firm.

3 Service

(1) Except in a case to which subrule (3) of this rule relates, when persons are sued as partners in the name of their firm under rule 1 of this Order, the writ or other originating process shall be served:

(a) upon any one or more of the partners; or

(b) at the principal place, within the Commonwealth, of the business of the partnership, upon a person apparently having, at the time of service, the control or management of the partnership business there.

(2) Subject to these rules, service in accordance with the last preceding subrule shall be deemed good service upon the firm so sued, whether any of the members of the firm are out of the Commonwealth or not, and leave to issue a writ or other originating process against them is not necessary.

(3) Where a co-partnership has, to the knowledge of the plaintiff, been dissolved before the commencement of the proceeding, the writ of summons or other originating process shall be served upon every person within the Commonwealth sought to be made liable.

4 Notice, in what capacity served

(1) When a writ or other originating process is issued against a firm, and is served as directed by the last preceding rule, every person upon whom it is served shall be informed by notice in writing, given at the time of the service, whether he is served:

(a) as a partner;

(b) as a person apparently having the control or management of the partnership business; or

(2) In default of such notice, the person served shall be deemed to be served as a partner.

5 Appearance of partners

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.

6 No appearance except by partners

When a writ or other originating process is served under rule 3 of this Order upon a person apparently having the control or management of the partnership business, an appearance by him is not necessary unless he is a member of the firm sued.

7 Appearance under protest of person served as partner

(1) When a person served as a partner under rule 3 of this Order denies that he was a partner, or liable as a partner at any material time, he may enter an appearance which states that he does so as “a person served as a partner in the defendant firm, but who denies that he was a partner at any material time”.

(2) An appearance so entered shall, as long as it stands, be treated as an appearance for the firm.

(3) Where an appearance to which this rule applies is entered:

(a) the plaintiff may apply to set it aside on the ground that the person entering it was a partner or liable as a partner, or may leave that question to be determined at a later stage of the proceedings; or

(b) the person entering the appearance may apply to set aside the service on him on the ground that he was not a partner or liable as a partner, or he may, at the proper time, deliver a defence denying either or both:

(i) his liability as a partner; or

(ii) the liability of the defendant firm in respect of the plaintiff’s claim.

(4) An order may, on the application of a party at any time, be made that the questions as to the liability of the person served and the liability of the defendant firm may be tried in such manner, and at such time or times, as the Court or a Justice thinks fit.

8 Execution of judgment against a firm

(1) When a judgment or order is against a firm, execution may issue:

(a) against any property of the partnership within the Commonwealth; and

(b) against a person:

(i) who has appeared in his own name under rule 5 or rule 6 of this Order;

(ii) who has admitted on the pleadings that he is a partner;

(iii) who has been adjudged to be a partner; or

(iv) who has been individually served, as a partner, with the writ of summons or other originating process, and has failed to appear.

(2) If the party who has obtained judgment or an order claims to be entitled to issue execution against another 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:

(a) if the liability is not disputed, give that leave; or

(b) if the liability is disputed, order that the liability of that other person be tried and determined in a manner in which an issue or question may be tried and determined.

(3) Except as against property of the partnership, a judgment against a firm does not render liable, release or otherwise affect a member of the firm who:

(a) was out of the Commonwealth when the writ or other originating process was issued; or

(b) has not appeared to the writ or other originating process;

unless he has been:

(d) served within the Commonwealth after the writ or other originating process in the proceeding was issued.

9 Attachment of debts owing from a firm

(1) A debt owing or accruing from a firm carrying on business within the Commonwealth may be attached under Order 46, notwithstanding that one or more members of the firm may be resident abroad, if some person apparently having the control or management of the partnership business, or some member of the firm within the Commonwealth, is served with the garnishee order.

(2) An appearance by a member pursuant to a garnishee order is a sufficient appearance by the firm.

10 Application of this Order to proceedings between co‑partners

(1) The preceding rules of this Order apply to proceedings between a firm and one or more of its members, and to proceedings between firms having one or more members in common, if the firm or firms carry on business within the Commonwealth.

(2) Execution shall not be issued in proceedings to which the last preceding subrule applies without leave of the Court or a Justice, and, on application for leave to issue execution, such accounts and inquiries may be directed to be taken and made, and such directions given, as is just.

11 Application of rules to person trading as firm

A 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, the rules relating to proceedings against firms apply.

12 Proprietary club

For the purpose of this Order, the proprietors of an unincorporated proprietary club shall be deemed to be persons carrying on business in co-partnership, and may sue and be sued in the name of the club which, for the purpose of this Order, shall be deemed to be a firm.

Order 49 Interlocutory orders for injunctions, etc and receivers

I Interlocutory Orders for Injunctions or Preservation or Management of Property etc

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

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

2 Order for sale of perishable goods etc

(1) The Court or a Justice may, on the application of a party, make an order for the sale, by a person or persons named in the order, and in such manner and on such terms as the Court or Justice thinks desirable, of:

(a) any goods, wares or merchandise of a perishable nature;

(b) any shares or securities which appear likely to depreciate in value; or

(2) This rule applies to goods, wares, merchandise, shares and securities which are the subject of a proceeding or as to which a question arises in a proceeding.

3 Detention, preservation or inspection of property

(1) The Court or a Justice may, upon the application of a party, and upon such terms as are just:

(a) make an order for the detention, preservation or inspection of any property or thing, being the subject of a proceeding or as to which a question arises in a proceeding;

(b) for all or any of those purposes, authorize a person to enter upon or into any land or building in the possession of a party to the proceeding; and

(c) authorize any samples to be taken, or any observation to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.

4 Inspection by Justice

A Justice, by whom a proceeding is heard or tried, with or without a jury, or before whom, as a member of the Full Court, a proceeding is brought by way of appeal, may inspect any property or thing concerning which a question arises in that proceeding.

5 Inspection by jury

(1) Rule 3 of this Order applies to inspection by a jury, and, in that case, the Court or a Justice may give such directions to the Marshal, his Deputy or other person 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.

(2) The Court or Justice may make such provision as to defraying the expenses of the inspection as are just.

6 Application for injunctions etc

An application for an injunction or to appoint a receiver, or an application under rule 2 or rule 3 of this Order, may be made either to the Court or to a Justice by a party.

7 Time for application under rule 1

An application for an order under rule 1 of this Order may be made by the plaintiff at any time after his right to the order appears from the pleadings, or, if there are no pleadings, is made to appear by affidavit or otherwise to the satisfaction of the Court or a Justice.

8 Order for recovery of specific property, other than land, subject to lien etc

When:

(a) a proceeding is commenced to recover, or a defendant in his defence seeks by way of counterclaim to recover, specific property other than land; and

(b) the party from whom the recovery is sought does not dispute the title of the party seeking to recover it, but claims to retain the property by virtue of a lien, or otherwise, as security for a sum of money;

the Court or a Justice may, at any time after that claim appears from the pleadings, or by affidavit or otherwise to the satisfaction of the Court or Justice, order:

(c) that the party claiming to recover the property be at liberty to pay into Court, to abide the event of the proceeding, 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

(d) that, upon the payment into Court being made, the property claimed be given up to the party claiming it.

9 Allowance of income of property pendente lite

Where:

(a) any real or personal property forms the subject of a proceeding in the Court; and

(b) the Court or a Justice is satisfied that it will be more than sufficient to answer all the claims on it which ought to be provided for in the proceeding;

the Court or a Justice may, at any time after the commencement of the proceeding, allow to a party interested in the property:

(d) the whole or part of the income of the personal property;

up to such time as the Court or Justice directs; or

(e) a part of the personal property;

and for that purpose the Court or Justice may make such orders as appear to the Court or Justice necessary or expedient.

10 Conduct of sale of trust estates

When, in an action for the administration of the estate of a deceased person or execution of the trusts of a written instrument, a sale is ordered of any property vested in an executor, administrator or trustee, the conduct of the sale shall be given to that executor, administrator or trustee, unless the Court or a Justice otherwise directs.

11 Injunction to be by judgment or order

(1) A writ of injunction shall not be issued.

(2) An injunction shall be granted by a judgment or order, and the judgment or order shall have the effect which a writ of injunction had before the commencement of these rules.

12 Injunction against repetition of wrongful act or breach of contract

(1) In an 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:

(a) the repetition or continuance of the wrongful act or breach of contract complained of; or

(b) the commission of an injury or breach of contract of a like kind relating to the same property or right or arising out of the same contract.

(2) The Court or a Justice may grant the injunction, either upon or without terms, as is just.

II Receivers

13 Appointment of receiver by way of equitable execution

Where application is made for the appointment of a receiver by way of equitable execution, the Court or a Justice, in determining whether it is just or convenient that the appointment should be made, shall have regard to the amount of the debt claimed by the applicant, to the amount which may properly be obtained by the receiver and to the probable cost of his appointment, and may, if it or he thinks fit, direct any inquiries on these or other matters before making the appointment.

14 Receivers — security and allowance

(1) When an order is made directing a receiver to be appointed, unless otherwise ordered the person to be appointed shall first give security duly to account for what he shall receive as such receiver, and to pay the same as the Court or Justice directs.

(2) The person so to be appointed shall, unless otherwise ordered, be allowed a proper salary or allowance.

(3) A security given under subrule (1) of this rule shall be approved by the Court or a Justice and taken before a person authorized to administer oaths for the purposes of the Court and proceedings in the Court.

15 Where receiver appointed in court, adjournment into Chambers to give security

Where a judgment or order is pronounced or made in court appointing a person named in the judgment or order to be receiver, the Court or a Justice may adjourn the proceeding to Chambers, in order that the person named as receiver may give security, and may thereupon direct the judgment or order to be drawn up.

16 Fixing days for receivers to leave and pass their accounts and pay in balances

(1) When a receiver is appointed with a direction that he shall pass accounts, the Court or a Justice shall fix:

(a) the days upon which he shall annually, or at longer or shorter periods, leave and pass the accounts; and

(b) the days upon which he shall pay the balances appearing due on the accounts so left, or such part of those balances as shall be certified as proper to be paid by him.

(2) If a receiver neglects to leave and pass his accounts or to pay the balances due on the accounts at the times fixed for those purposes under the last preceding subrule, the Justice may order that the Registrar before whom the receiver is to account may, from time to time, when the receiver’s subsequent accounts are produced to be examined and passed:

(a) disallow the salary claimed in the accounts by the receiver; and

(b) if he thinks fit, charge the receiver with interest at the rate of five per centum per annum upon the balances so neglected to be paid by him during the time those balances appear to have remained in the hands of the receiver.

(3) A decision of a Registrar under this rule may be varied or set aside upon application to a Justice.

17 Leaving account with Registrar

A receiver shall leave with the Registrar of the Registry in which the proceeding is pending his account, together with an affidavit verifying the account in the form numbered 52 in the First Schedule, with such variations as the circumstances require, and an appointment shall thereupon be obtained by the plaintiff, or by the person having the conduct of the proceeding, for the purpose of passing the account.

18 Consequences of default by receiver

(1) Where a receiver fails:

(a) to leave an account or affidavit;

(b) to pass an account;

(d) to perform a duty;

the receiver and any party may be required, on a summons taken out by a Registrar or a party, to attend before a Justice to shew cause why the account or affidavit has not been left, the account passed, the payment made or any other proper proceeding taken.

(2) Thereupon such directions as are proper may be given at Chambers, or by adjournment into Court, including the discharge of the receiver and appointment of another, and payment of costs.

19 Certificate of receiver’s account

A certificate of a Registrar, stating the result of a receiver’s account, shall from time to time be taken.

20 Books to be deposited

When a receivership has been completed, the book containing the accounts shall be deposited in the Registry in which the proceeding is then pending.

21 Passing a guardian’s accounts

The accounts of guardians and of committees of persons of unsound mind shall be passed and verified in the same manner as is by this Order directed as to receiver’s accounts.

Order 50 Sales by the court

I General

1 Power of court to order sale of real estate

(1) If, in a proceeding relating to any real estate, it appears necessary or expedient that the real estate or a part of the real estate should be sold, the Court or Justice may order the real estate or the part to be sold.

(2) A party bound by the order and in possession of the estate, or in receipt of the rents and profits of the estate, shall deliver up the possession or receipt to the purchaser or to such other person as is directed by the order.

2 Mode of carrying out sale, mortgage, partition or exchange, when ordered by court

A sale, mortgage, partition or exchange ordered by the Court or a Justice shall be carried out in accordance with directions given by a Justice in Chambers.

3 Abstract of title to be laid before practitioner

(1) Before any estate or interest is put up for sale under a judgment or order, an abstract of the title shall, unless otherwise ordered, be laid before some person who:

(a) is entitled to practise as a barrister or solicitor in the Court; and

(b) is approved by the Court or Justice;

for his opinion on the abstract of the title to enable proper directions to be given respecting the conditions of sale and other matters connected with the sale.

(2) The conditions of sale shall specify a time for the delivery of the abstract of title to the purchaser or to a solicitor.

4 Sale with the approbation of the Justice

(1) Where a judgment or order is given or made, whether in Court or in Chambers, directing any property to be sold, unless otherwise ordered the property shall be sold by auction, with the approbation of the Justice, to the best purchaser that can be got for it, to be approved by the Justice.

(2) All proper parties shall join in the sale and conveyance or transfer as the Justice directs.

5 Order for payment of purchase-money into court not necessary

An order for the payment of purchase-money into Court is not necessary, but a direction for that purpose, signed by the Justice, is sufficient authority for a Registrar to receive the money.

6 Form of affidavits of value

An affidavit for the purpose of enabling the Justice to fix reserved biddings upon a sale by auction shall state the value of the property by reference to an exhibit stating the value, so that the value may not be disclosed by the affidavit when filed.

7 Office copy of affidavit as to result of sale

An office copy of the affidavit of the person appointed to sell of the result of the sale, with the bidding paper and particulars referred to in the bidding paper, shall be left in the Registry in which the proceeding is pending at least one clear day before the day appointed for settling the certificate of the result of the sale.

8 Certificate of result of sale to be made by auctioneer and solicitor in lieu of affidavit

(1) In the case of sales under the direction of the Court, the particulars of sale shall be signed by, and the result of the sale shall be certified under, the hands of the auctioneer and the solicitor of the party having the conduct of the sale.

(2) It is not necessary to file an affidavit verifying the particulars or the result of the sale.

9 Bidding by parties

An order is not necessary for allowing a party to the record to bid at a sale under the direction of the Court if he would be allowed by law to bid at the same sale if it had not been under the direction of the Court.

II In Admiralty Actions

10 Appraisement or sale of property

(1) A commission for the appraisement or sale of property under the order of the Court shall, unless the Court or a Justice otherwise orders, be executed by the Marshal or his Deputies or officers.

(2) A solicitor who takes out a commission for appraisement or sale shall file an undertaking to pay the fees and expenses of the Marshal or his Deputy if they are demanded.

11 Payment into Court of gross proceeds of sale

(1) The Marshal or his Deputy shall pay into Court the gross proceeds of any property which has been sold by him.

(2) The Marshal or his Deputy shall bring into Court the account for sale, with vouchers in support of the account, for taxation by the Registrar of the Registry in which the proceeding is pending.

12 Taxation of Marshal’s expenses

(1) A person interested in the proceeds may be heard before the Registrar on the taxation of the Marshal’s or Deputy Marshal’s account of expenses.

(2) 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.

Order 51 Motions and other applications

Do not delete : Division placeholder

1 Application by motion etc

(1) Where an application is authorized by or under an Act or by these rules and no other procedure is provided, the application shall:

(a) if made to a Full Court or to a Justice in Court, be made by motion, unless it is required to be made by petition; and

(b) if made to a Justice in Chambers, be made by summons.

(2) A copy of a notice of motion or petition to be served upon, or of which notice is to be given to, a person or party shall be filed before it is so served or notice of it so given.

(3) A copy of a notice of motion or petition which is not to be served upon, or of which notice is not to be given to, a person or party shall be filed before the motion or petition is heard or, if that is not practicable, then as soon as conveniently may be thereafter.

2 Title of notice of motion etc

An application, whether by motion, petition or summons, shall be entitled in the proceeding in which it is made and in the matter of any statute under which the application is made.

3 Notice of motion etc to name Court

A notice of motion, or a notice setting down a petition for hearing in Court, shall:

(a) 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;

(b) be signed with the name of the party intending to move, or his solicitor, if he acts by a solicitor; and

4 Costs of abandoned applications

(1) If an application of which notice has been given is not made at the sitting for which notice was given, or at an adjournment of that sitting at which the application could be made, the party to whom the notice was given may apply to the Court or a Justice by summons in Chambers for an order for the payment to him by the party by whom the notice was given of his costs of the application.

(2) The order may be set aside by the Court or a Justice upon sufficient cause shown.

5 Where notice of application to be given; ex parte applications

(1) Except as by these rules otherwise provided, an 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 thinks just.

(2) A party affected by such an order may move to set it aside.

6 Length of notice of motion and petition

Unless the Court or a Justice otherwise orders, upon application which may be made ex parte:

(a) there shall be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion; and

(b) there shall be at least seven clear days between the service of the notice of the day appointed for the hearing of a petition and that day.

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

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

8 Adjournment of hearing

The hearing of an application may from time to time be adjourned upon such terms, if any, as the Court or Justice thinks fit.

9 Trial of questions of fact

The Court or a Justice may order that a question of fact arising upon an application be tried in a manner in which a question or issue of fact in an action may be tried, and may give such directions as are considered necessary or desirable for that purpose.

10 Service of notice of motion with writ

The plaintiff may serve a notice of motion or other notice or a summons upon a defendant with the writ of summons or other originating process, or at any time after service of the writ of summons or other originating process and before the time (if any) limited for the appearance of that defendant.

11 Service of notice on defendant served with writ but not appearing

The plaintiff may serve a notice of motion or other notice or summons upon a defendant, who, having been duly served with a writ of summons to appear or other originating process requiring an appearance to be entered, has not appeared within the time limited for that purpose.

12 Statement of persons to be served with petition

At the foot of a petition and each copy of the petition, a statement shall be made of the persons, if any, intended to be served with 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 and of each copy.

13 Notice of petition

Unless the Court or a Justice otherwise orders, a petition which is to be served on a person shall be served at least seven clear days before the day appointed for the hearing of the petition.

14 Form of petition

(1) A petition shall contain a statement, as brief as the nature of the case allows, 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, of the contents of documents.

(2) The petition shall, when necessary, be divided into paragraphs, numbered consecutively, and each containing as nearly as may be a separate allegation.

(3) Dates, sums and numbers may be expressed in a petition in figures or in words.

(4) If the petition has been settled by counsel, it shall be signed by him, and, if not so settled, it shall be signed by the solicitor, or by the party if he is proceeding in person.

15 Appointment for hearing

(1) At any time after:

(a) the time limited for appearance, or the last of the appearances, to a petition or notice of motion to which an appearance is, or may be, required to be entered has expired; or

(b) the time has expired within which, under these rules, the petition or notice of motion, or notice thereof, would or might be required to be served upon or given to a person;

the party making the application may apply to the Registrar of the Registry in which the petition or motion is pending to appoint a day and place for hearing the application.

(2) At least seven clear days before the day appointed, the party making the application shall:

(a) give notice in writing of the day and place appointed to every other party to the application and to every person upon whom the process by which the application is brought before the Court has been served or to whom notice of the application has been given; and

(b) shall file in the Registry in which the application is pending a copy of the notice.

(3) If the party making the application does not, within six months after he is first entitled to do so, apply for the appointment of a day and place for hearing the application, any other party to the application, or a person upon or to whom the application, or notice of the application, has been served or given under the last preceding subrule, may apply to the Court or a Justice to dismiss the application for want of prosecution.

(4) The Court or Justice may order the application to be dismissed accordingly or make such other order, and on such terms, as the Court or Justice deems just.

Order 52 Chambers

I Jurisdiction in Chambers

1 General jurisdiction

A Justice in Chambers may hear and determine:

(a) an application which, by an Act or by these rules, is authorized to be made to a Justice, and is not specifically required to be made to a Justice in Court;

(b) an application for payment or transfer to a person of any money or securities standing to the credit of a proceeding where:

(i) there has been a judgment or order declaring the rights of the applicant;

(ii) the title of the applicant depends only upon proof of the identity, or of the birth, marriage or death, of particular persons; or

(iii) the nominal amount or value of either the money or the securities proposed to be dealt with does not exceed One thousand dollars, exclusive of interest;

(c) an application for payment to a person of the interest or dividends on any money or securities standing to the credit of a proceeding, whether to a separate account or otherwise;

(d) an application relating to the investment or disposition of money or securities in Court;

(e) an application for an order on the further consideration of a proceeding, when the order to be made is for the distribution of a fund or property;

(f) an application in a proceeding 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; and

(g) an application for directions as to the management of any property under the control of the Court.

2 Adjournment from Chambers to Court

The Justice may, if he thinks fit, either upon the application of a party or without such an application being made, direct that an application brought on in Chambers shall be heard in Court.

3 Adjournment from Court to Chambers

An application brought on in Court may, if the Court thinks fit, be adjourned into Chambers.

II Procedure

4 Applications to be by summons

An application at Chambers not made ex parte shall, unless otherwise required or authorized by these rules or otherwise, be made by summons.

5 Ex parte applications by summons

An application for payment or transfer out of Court, and an application made ex parte where the Justice thinks fit so to require, shall be made by summons, to be served upon such persons as the Justice directs.

6 Form of summons

(1) A summons, other than an originating summons, shall be in the form numbered 40 in the First Schedule, with such variations as the circumstances require, and shall be addressed to all the persons on whom it is to be served.

(2) The person obtaining the summons shall file in the Registry a copy of the summons.

7 Form of originating summons

(1) An originating summons shall be in the form numbered 41 in the First Schedule, with such variations as the circumstances require.

(2) The person obtaining the summons shall file in the Registry a copy of the summons.

(3) The summons shall be intituled in the matter of the Act, if any, under which the application is to be made and of the estate or trust, or of the property, person or matters, to which or to whom it relates.

(4) An originating summons which is issued out of a District Registry, and to which an appearance is required to be entered, shall contain the statement required by Order 2, rule 8.

(5) Where appearance to an originating summons is not required, the summons shall state the persons upon whom it is intended to be served, or that it is not intended to be served on any person.

8 Appearance to originating summons

(1) A party served with an originating summons, or notice of an originating summons, shall, except as otherwise provided, before he is heard, enter an appearance at the appropriate Registry and give notice of the appearance to the person obtaining the summons.

(2) A party served with an originating summons, or notice of an originating summons, may appear at any time before the hearing of the summons.

(3) If the party served appears at any time after the time limited by the summons for appearance, he shall not, unless the Court or a Justice otherwise orders, be entitled to any further time for any purpose than if he had appeared according to the summons.

(4) The Court or a Justice, if it or he sees fit so to do, may permit a party served with an originating summons, or notice of an originating summons, to be heard on the summons (notwithstanding that that party has not entered an appearance) on the undertaking of the solicitor of that party, or of the party himself where he appears in person, to enter an appearance forthwith.

9 Time for appearance

The time to be limited for appearance to an originating summons to which an appearance is required to be entered shall, in every case, be the same as it would be if the summons were a writ of summons in an action.

10 Time of service of summons and stay of proceedings

(1) Subject to the next succeeding subrule, a summons, not being an originating summons to which an appearance is required to be entered, shall be served two clear days before the return day of the summons, unless the Court or a Justice allows a shorter period of service.

(2) A summons for time only may be served on the day previous to its return and a summons signed by a Justice may be made returnable at any time.

(3) A Justice may, if under special circumstances he thinks fit, order that a summons shall operate as a stay of proceedings from the time of service, and the summons shall be drawn up accordingly and signed by the Justice.

11 Evidence upon applications relating to infants

Upon an application for the appointment of a guardian of an infant and allowance for maintenance, or with respect to the advancement of an infant or the administration of an infant’s estate, the evidence shall show:

(a) the age of the infant;

(b) the nature and amount of the infant’s fortune and income; and

12 Proceeding ex parte where a party fails to attend

(1) When a party to a summons fails to attend, whether upon the return of the summons or at a time appointed for the consideration or further consideration of the matter, the Justice may proceed ex parte if, considering the nature of the case, he thinks it expedient so to do.

(2) An affidavit of non-attendance is not required and shall not be allowed, but the Justice may require such evidence of service as he thinks just.

13 Costs thrown away by non-attendance of a party

When a proceeding in Chambers fails by reason of the non-attendance of a party and the Justice does not think it expedient to proceed ex parte, the Justice may order such an amount of costs (if any) as he thinks reasonable to be paid to the party attending by the absent party or by his solicitor personally.

14 Further attendance where summons not fully disposed of

When the matters in respect of which a summons has been issued are not disposed of upon the return of the summons, the parties shall attend from time to time without further summons, at such time or times as are appointed, for the consideration or further consideration of the matter.

15 What matters to be included in the same summons

(1) In a proceeding when a party makes an application at Chambers, either by way of summons or otherwise, he may include in the same application all matters upon which he then desires the order or direction of the Justice.

(2) Upon the hearing of the application, the Justice may make such order and give such directions relevant to or consequential on the matter of the application as are just.

16 Justice not bound to determine question

The Justice, on hearing an originating summons, is not bound:

(a) to determine a question or matter the determination of which requires a decision on a disputed question of fact; or

(b) to make an order under the summons in respect of a question or matter which he is of opinion should be determined in an action or otherwise.

17 Time of return

A summons is returnable at such time as is fixed by a Justice or Registrar.

18 Procedure where no Justice available

If a Justice is not sitting in Chambers at the time at which a summons issued under these rules is returnable, the summons shall stand adjourned until a Justice is sitting in Chambers.

III Proceedings under Judgments and Orders

19 Powers of Registrars

A Registrar may, for the purpose of any proceedings directed to be taken before him:

(a) publish advertisements;

(b) summon parties and witnesses;

(d) require the production of documents;

(e) take affidavits and acknowledgments;

(f) receive affirmations;

(g) unless otherwise ordered by the Court or a Justice, examine parties and witnesses, either upon interrogatories or viva voce, and receive evidence on affidavit; and

(h) require a party to be represented by a separate solicitor.

20 Duty of persons summoned to attend before Registrar

A party or witness summoned to attend before a Registrar shall attend in pursuance of the summons and is liable to process of contempt in like manner as parties or witnesses are liable to process of contempt in case of disobedience to an order of the Court, or in case of default in attendance.

21 Computation of interest etc to be acted upon

The Court or a Justice may direct a computation of interest, or the apportionment of a fund, to be certified by a Registrar, and to be acted upon by an officer or other person without further order.

IV Summons in Chambers

22 Form of Registrar’s summons

The summons by a Registrar requiring the attendance of a party, witness or other person shall be in the form numbered 51 in the First Schedule, with such variations as the circumstances of the case require.

V Proceedings relating to Infants etc

23 Guardian ad litem with reference to proceedings in Chambers

At any time during the proceedings in Chambers under a judgment or order, the Justice may, if he thinks fit, require a guardian ad litem to be appointed for an infant or person of unsound mind who has been served with notice of the judgment or order.

VI Documents to be left at Chambers

24 Proceedings under judgment or order

In the case of proceedings in Chambers under a judgment or order, the party prosecuting the proceedings shall leave the original, or a copy, of the judgment or order at the Registry in which the proceedings are being had, unless the original judgment or order has been previously filed, and, in the case of a copy, he shall certify the copy to be a true copy of the judgment or order as made by the Justice.

25 Associate’s note where order not drawn up

When a proceeding is adjourned from Court to Chambers, or any directions are given in Court to be acted upon at Chambers, whether upon a proceeding adjourned into Court from Chambers or upon any other occasion, without an order being drawn up, a note signed by the Associate or other proper officer stating for what purpose the proceeding is adjourned to Chambers, or the directions given, shall be procured from the Associate or officer and filed in the Registry in which the proceeding is pending.

26 Names of solicitors

The Registrar may require that a note stating the names of the solicitors for all the parties, and showing for which of the parties the solicitors are concerned, shall be left at the Registry with a judgment or order.

VII Summons to Proceed

27 Summons to proceed with accounts and inquiries directed

(1) Upon a judgment or order being made directing accounts or inquiries to be taken or made, a summons shall be issued to proceed with the accounts or inquiries directed.

(2) If upon the return of the summons, it appears by proper evidence that all necessary parties have been served with notice of the judgment or order, directions shall be given as to:

(a) the manner in which each of the accounts and inquiries is to be prosecuted;

(b) the advertisements, if any, to be published;

(d) the parties who are to attend on the several accounts and inquiries; and

(e) the time within which each proceeding is to be taken.

(3) A day or days may be appointed for the further attendance of the parties, and directions given under the last preceding subrule may afterwards be varied by addition thereto or otherwise, as is found necessary.

(4) The summons shall be taken out by the party entitled to prosecute the judgment or order within seven days after the judgment or order has been filed or left, and, in default of that party so doing, then any other party to the proceeding may take out the summons and that other party shall have the prosecution of the judgment or order unless a Justice otherwise directs.

28 Settling deed in case parties differ

(1) Where, by a judgment or order, a deed is directed to be settled in Chambers in case the parties differ, a summons to proceed shall be issued.

(2) Upon the return of the summons, the party entitled to prepare the draft deed shall be directed to deliver a copy of the draft deed, within such time as is fixed, to the party entitled to object to it.

(3) The party so entitled to object shall be directed to deliver to the other party a statement in writing of his objections, if any, within twenty-one days, or within such period as is directed after the delivery of the copy, and the proceedings shall be adjourned until after the expiration of the period so fixed or directed.

29 Where service of notice of judgment or order dispensed with

Where, upon the hearing of the summons to proceed, it appears that, by reason of absence or for any other sufficient cause, the service of notice of the judgment or order upon a party cannot be made or ought to be dispensed with, a direction may be given dispensing with that service, or ordering any substituted service, or notice by advertisement or otherwise, in lieu of that service.

30 Power to bind persons on whom service is dispensed with

(1) Where service of notice of a judgment or order for accounts and inquiries is dispensed with, an order may be made at any time, if it is thought fit, that the persons as to whom service is dispensed with shall be bound as if served.

(2) Those persons shall be bound accordingly, except where the judgment or order has been obtained by fraud or non-disclosure of material facts.

31 Stoppage of proceedings where all necessary parties have not been served with notice of judgment or order

(1) If, on the hearing of the summons to proceed, it appears that all necessary parties are not parties to the proceeding or have not been served with notice of the judgment or order, directions may be given for advertisement for creditors, and for leaving the accounts in Chambers.

(2) The adjudication on creditors’ claims and the accounts shall not be proceeded with, and no other proceeding taken except for the purpose of ascertaining the parties to be served, until:

(a) all necessary parties have been served and are bound, or service has been dispensed with; and

(b) directions have been given as to the parties who are to attend on the proceedings.

32 Course of proceeding at Chambers. Papers for use of Justice and Registrar

(1) The course of proceeding in Chambers under a judgment or order shall ordinarily be the same as the course of proceeding in Court upon motions.

(2) Copies, abstracts or extracts of or from accounts, deeds or other documents and pedigrees and concise statements shall, if directed, be supplied for the use of the Justice and Registrar and, where so directed, copies shall be handed over to the other parties.

(3) Unless the Justice otherwise directs, copies shall not be made of deeds or documents where the originals can be brought in.

VIII Summons Book

33 Entries in Summons Book

At the time a summons is obtained an entry of the summons shall be made in the Summons Book stating:

(a) the date on which the summons is issued;

(b) the name of the proceeding;

(d) at what time the summons is returnable.

IX Certificates of the Registrar

34 Registrar’s certificate

(1) The directions to be given for, or touching on, proceedings before a Registrar shall not require a particular form, but the result of the proceedings shall be stated in the shape of a concise certificate to the Justice.

(2) It is not necessary for the Justice to sign the certificate, and, unless an order to discharge or vary the certificate is made, the certificate shall be deemed to be approved and adopted by the Justice.

35 Reference to judgment etc

The certificate of a Registrar shall not, unless the circumstances of the case render it necessary, set out the judgment or order or a document, evidence or reason, but shall refer to the judgment or order and documents and evidence, or particular paragraphs thereof, so that it appears upon what the result stated in the certificate is founded.

36 Preparation and settlement of Registrar’s certificate

(1) When the Justice or Registrar so directs, the certificate shall be prepared by the solicitor of one of the parties.

(2) The solicitor shall obtain an appointment to settle the certificate and shall give notice of the appointment to the other parties.

(3) A summons to settle the certificate of a Registrar shall not be issued.

37 Form of certificate

The certificate of a Registrar:

(a) when prepared and settled, shall be transcribed in such form, and within such time, as the Registrar requires; and

(b) shall be signed by the Registrar either then or, if necessary, at an adjournment to be made for the purpose.

38 Contents of certificate in cases of accounts

(1) Where an account is directed, the certificate shall state the result of the account and not set the account out by way of schedule, but shall refer to the account verified by the affidavit filed, and shall specify, by the numbers attached to the items in the account, which, if any, of the items have been disallowed or varied, and shall state what additions, if any, have been made by way of surcharge or otherwise.

(2) Where the account verified by the affidavit has been so altered that it is necessary to have a fair transcript of the account as altered, the transcript may be required to be made by the party prosecuting the judgment or order, and shall then be referred to by the certificate.

(3) The accounts and the transcripts, if any, referred to by a certificate shall be filed with the certificate or retained in the Registry and subsequently filed, as may be directed.

(4) A copy of such an account is not required to be taken by a party.

39 Taking opinion of Justice

(1) A party may, before proceedings before the Registrar are concluded, take the opinion of the Justice upon a point or matter arising in the course of the proceedings without a fresh summons for the purpose and the Registrar shall act upon the opinion of the Justice accordingly.

(2) The decision of the Justice shall not be deemed to be finally given upon a point or matter so referred to him until the filing of the Registrar’s certificate embodying the result of the Justice’s opinion.

40 Proceeding to take opinion of Justice not a stay of proceedings

Taking the opinion of a Justice, as provided in the last preceding rule, does not operate as a stay of proceedings before the Registrar, but he may, at his discretion, either continue the proceeding in the course of which the point or matter has arisen or defer further proceeding until the opinion has been obtained.

41 When certificate becomes binding; application to discharge or vary it

A certificate, with the accounts and transcripts, if any, to be filed with the certificate, shall be filed in the Registry and, when filed, shall thenceforth be binding on all the parties to the proceedings unless discharged or varied upon application by summons to be made before the expiration of seven clear days after the filing of the certificate, or within such further time as the Court or Justice allows.

42 Certificate of Registrar; application to discharge or vary; confirmation of judgment

(1) When a Registrar has assessed or ascertained damages, he shall certify the amount and file his certificate.

(2) Within seven days of the filing of the certificate, any party interested may apply to the Court or a Justice to discharge or vary the certificate or make such other order thereon as may be just.

(3) The Court or Justice hearing and determining the application may discharge the certificate or may confirm the certificate or the certificate as varied.

(4) If an application is not made under subrule (2) of this rule, the Registrar shall, after the expiration of seven days from the filing of his certificate, bring it before a Justice in Chambers, who may confirm it or give such directions thereon as may appear just.

(5) The Registrar shall enter judgment in accordance with a certificate or with the order or directions thereon of the Court or Justice.

X Further Consideration

43 Further consideration of matters originating in Chambers

(1) Where a matter originating in Chambers has, at the original or subsequent hearing, been adjourned for further consideration in Chambers, it may, after the expiration of fourteen days and within a period of twenty-eight days, or such further period as the Justice allows, after the filing of the Registrar’s certificate, be brought on for further consideration by a summons, to be taken out by the party having the conduct of the proceedings, and, after the expiration of that period of twenty-eight days or that further period, by a summons to be taken out by any other party.

(2) The summons shall be in the following form: “That this matter, the further consideration of which was adjourned by the order of the day of 19 , may be further considered.”.

XI Registering and Drawing up of Orders in Chambers

44 Notes of proceedings in Chambers

The Associate or other proper officer shall:

(a) keep a book in which he shall enter particulars of all proceedings had in Chambers, with:

(i) dates;

(ii) names of cases;

(iii) a description of the proceedings; and

(iv) a minute of the decisions, with a short statement of the questions or points decided or ruled; and

(b) deliver all documents used at Chambers to the Registrar.

45 Drawing up and entry of orders made in Chambers

(1) An order made in Chambers to be acted on by a Registrar or other proper officer shall, unless the Justice otherwise directs, be drawn up by the Registrar.

(2) An order drawn up by a Registrar shall be entered in the same manner as an order made in open Court.

46 Evidence of orders made in Chambers

In the case of an order to be drawn up by a Registrar as mentioned in the last preceding rule, an order signed by the Registrar, or a note or memorandum endorsed on the summons upon which the order is made and signed or initialled by the Registrar, is sufficient evidence of the order having been made.

Order 54 Interpleader

Do not delete : Division placeholder

1 When relief by interpleader granted

Relief by way of interpleader may be granted:

(a) when the person seeking relief (in this Order called the applicant) is under liability for any debt, money, goods, or chattels for or in respect of which he is liable to claims in the Court by two or more parties (in this Order called the claimants) making adverse claims to that debt or money or to those goods or chattels; or

(b) when the applicant is the Marshal or his Deputy or other officer charged with the execution of process by or under the authority of the Court, and claim is made to any money, goods or chattels taken or intended to be taken in execution under a process or to the proceeds or value of those goods or chattels, or of any land, by a person other than the person against whom the process is issued.

2 Matters to be proved by applicant

The applicant shall satisfy the Court or a Justice by affidavit or otherwise:

(a) that the applicant claims no interest in the subject-matter in dispute other than for charges or costs;

(b) that the applicant does not collude with any of the claimants; and

(c) that the applicant (except where he is the Marshal or his Deputy or other officer charged with the execution of process by or under the authority of the Court who has seized goods and who has withdrawn from possession in consequence of the execution creditor admitting the claim of the claimant under rule 16 of this Order) is willing to pay or transfer the subject-matter into Court or to dispose of it as the Court or a Justice directs.

3 Adverse titles of claimants

The applicant is not disentitled to relief by reason only that the titles of the claimants have not a common origin, but are adverse to and independent of one another.

4 When application to be made

When the applicant is a defendant, application for relief may be made at any time after the commencement of the proceedings in the Court.

5 Summons by applicant

The applicant may take out a summons calling on the claimants to appear and state the nature and particulars of their claims, and either to maintain or relinquish them.

6 Stay of proceedings

If the application is made by a defendant, the Court or a Justice may stay all further proceedings.

7 Order upon summons

If the claimants, or any of them, appear in pursuance of the summons, the Court or a Justice may:

(a) order that a claimant be made a defendant in a proceeding already commenced in respect of the subject-matter in dispute in lieu of, or in addition to, the applicant; or

(b) order that an issue between the claimants be stated and tried and direct which of the claimants is to be plaintiff and which defendant, and the mode in which the trial shall be had.

8 Issue to be filed

(1) The plaintiff in an interpleader issue shall file the issue within three days after the making of the order under the last preceding rule and shall thereupon pay the fees and jury fees, if any, payable on entering an action for trial.

(2) If the plaintiff makes default in filing the issue, the order shall be deemed to be abandoned and the Court or Justice may make such further order on the applicant’s summons, and as to the costs of the issue directed, as is just and reasonable.

9 Disposal of matters in summary manner

The Court or a Justice may:

(a) with the consent of all claimants; or

(b) on the request of a claimant, if, having regard to the value of the subject-matter in dispute, it seems desirable so to do;

dispose of the merits of their claims and decide the claims in a summary manner and on such terms as are just.

10 Questions of law

(1) When a question of law arises in interpleader proceedings and the facts are not in dispute, the Court or a Justice may decide the question without directing the trial of an issue or may order that a special case be stated for the opinion of the Full Court.

(2) If a special case is stated, Order 35 shall, as far as applicable, apply to the special case.

11 Failure of claimant to appear, or neglect to obey summons

(1) If a claimant, having been duly served with a summons calling on him to appear and maintain or relinquish his claim, does not appear in pursuance of the summons, or, having appeared, neglects or refuses to comply with an order made after his appearance, the Court or a Justice may make an order declaring him, and all persons claiming under him, for ever barred against the applicant and persons claiming under the applicant.

(2) The order shall not affect the rights of the claimants as between themselves.

12 Order for sale of goods seized in execution

When goods or chattels have been seized in execution by the Marshal or his Deputy or other officer charged with the execution of process of the Court, and a claimant alleges that he is entitled, under a bill of sale or otherwise, to the goods or chattels by way of security for debt, the Court or a Justice may order the sale of the whole or a part of the goods or chattels and direct the application of the proceeds of the sale in such manner and upon such terms as are just.

13 Application of Orders 32, 33 and 36 to interpleader proceedings

(1) Orders 32, 33 and 36, with the necessary modifications, apply to an interpleader issue.

(2) The Court or Justice who tries the issue may finally dispose of the whole matter of the interpleader proceedings including costs not otherwise provided for.

14 Title of order

(1) When, in an interpleader proceeding, it is necessary or expedient to make one order in several proceedings pending in the Court, the order may be made by the Court or Justice before whom the interpleader proceeding is taken, and shall be entitled in all the proceedings.

(2) The order, subject to the right of appeal, shall be binding on the parties in all those proceedings.

15 Costs

The Court or a Justice may, in or for the purposes of any interpleader proceedings, make such orders as to costs and other matters as are just.

16 Marshal’s costs

(1) A claim made to or in respect of any goods or chattels taken in execution under the process of the Court shall be in writing and shall state an address for service of the claimant which shall comply with the provisions of Order 4.

(2) Upon receipt of the claim, the Marshal or his Deputy or other officer shall forthwith give notice of the claim to the execution creditor in the form numbered 33 in the First Schedule, or to the like effect.

(3) The execution creditor shall, within seven days after receiving the notice, give notice to the Marshal, his Deputy or the officer, in the form numbered 34 in the First Schedule or to the like effect, whether he admits or disputes the claim.

(4) If the execution creditor admits the title of the claimant and gives notice as directed by this rule, he shall be liable to the Marshal, his Deputy or the officer only for any fees or expenses incurred prior to the receipt of the notice admitting the claim.

17 Withdrawal by Marshal

(1) When the execution creditor has given notice to the Marshal, his Deputy or other officer that he admits the claim of the claimant, the Marshal, his Deputy or the officer may thereupon:

(a) withdraw from possession of the goods claimed; and

(b) apply for an order protecting him from any action in respect of the seizure and possession of the goods;

and the Court or a Justice may make such order as is just and reasonable.

(2) The Marshal, his Deputy or the officer shall give notice to the claimant of an application under this rule.

(3) The claimant may attend the hearing of the application and, if he attends, the Court or Justice may, in and for the purposes of the application, make such orders as to costs as are just.

18 Costs in interpleader

(1) When the execution creditor does not in due time, as directed by rule 16 of this Order, admit or dispute the title of the claimant to the goods or chattels, and the claimant does not withdraw his claim to the goods or chattels by notice in writing to the Marshal, his Deputy or the officer, the Marshal, his Deputy or the officer may take out an interpleader summons.

(2) The service of the summons on the claimant may be effected at his address for service either by personal service upon the claimant or by registered post as provided by Order 62, rule 3.

(3) If the claimant withdraws his claim by notice in writing to the Marshal, his Deputy or the officer, or the execution creditor in like manner serves an admission of the title of the claimant prior to the return day of the summons and, at the same time, gives notice of the admission to the claimant, the Court or Justice may, in and for the purposes of the interpleader proceedings, make such orders as to costs, fees, charges and expenses as are just.

Order 55 Mandamus, prohibition, certiorari, habeas corpus, quo warranto

I General

1 Application, how made

(1) An application for:

(a) a writ of habeas corpus;

(b) an order for the production of a person in confinement for the purpose of examination or trial;

(d) relief of like nature to mandamus or quo warranto;

may, subject to subrules (5) and (6) of this rule, be made to the Court or a Justice ex parte and shall be supported by affidavit.

(2) Subject to subrules (3) and (4) of this rule, the application shall, in the first instance, be for an order calling on the proposed respondent to shew cause why the writ or order should not be issued or made, the information filed or other relief given.

(3) In the case of an application by a Law Officer ex officio for a writ of certiorari or for leave to file an information of quo warranto, the order shall, if so sought, be absolute in the first instance.

(4) The Court or Justice may, in its or his discretion, in a case in which it appears necessary for the advancement of justice, grant an order absolute in the first instance for a writ of habeas corpus, certiorari, mandamus or prohibition, or for the production of a person.

(5) An application for an order to bring up a person in confinement to give evidence in a proceeding, civil or criminal, before a court, justice or other judicature shall be made to a Justice in Chambers.

(6) When an application for a writ of habeas corpus is made on behalf of an infant, it shall be made, in the first instance, to a Justice sitting in Chambers.

2 Justice may direct application in Court or to Full Court

When application is made to a Justice in Court or in Chambers, or otherwise, he may, if he thinks fit, direct that the application be made by notice of motion to a Justice in Court or to a Full Court, and may adjourn the application so that notice of the application may be given accordingly.

3 Adjournment of application by Full Court

When application is made to a Full Court, the Court may adjourn the application so that notice of the application may be given.

4 Order to be returnable before Full Court

An order to shew cause shall be to shew 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.

5 Service of order to shew cause or notice of motion

(1) The order to shew cause, or notice of motion, shall be served on such persons and in such manner as the Court or Justice directs.

(2) Unless the Court or Justice otherwise directs, there shall be at least three clear days between service of the order to shew cause, or notice, and the date named in the order or notice for the hearing of the application.

(3) When the order or notice relates to a proceeding in or before a court, and the object is either to compel the court or an officer of the court to do an act in relation to the proceedings or to quash them or an order made in them, it is sufficient to serve the order or notice of motion on:

(a) the Clerk, the Registrar or other proper officer of the court and the other parties to the proceedings, unless the Court or a Justice otherwise orders; and

(b) where an objection to the conduct of the judge, justice or magistrate constituting the court is to be made, on that judge, justice or magistrate.

(4) An affidavit stating the names and addresses of, and the place and date of service on, the persons who have been served with the order to shew cause or notice of motion shall be filed before the order or notice is put in the list for hearing, and, if a person who ought to be served under or pursuant to these rules has not been served, the affidavit shall state that fact and the reason why service has not been effected.

(5) If, on the application for the order absolute or the hearing of the motion, the Court or Justice is of opinion that a person who ought to have had notice of the application has not been served (whether or not he is a person who ought to have been served under or pursuant to the foregoing provisions of this rule), the Court or Justice may direct service on that person, and adjourn the hearing in the meantime, upon such terms, if any, as it or he thinks fit.

6 Title of affidavits

An affidavit intended to be used on the application and upon which the application is made shall be entitled “In the High Court of Australia” without any other title, except in the case of an application for an order for the production of a person for examination as a witness in proceedings pending in the Court, in which case it shall also be entitled in the proceeding.

7 Copies of affidavits

A party to the application shall supply on demand by a party or person who desires to be heard, and on payment of the proper charges, copies of any affidavits previously used in the proceeding or which he proposes to use at the hearing of the application.

8 Title of proceedings

(1) (a) An application for an order to show cause and all subsequent proceedings filed in the Registry shall be entitled:

“Application for (description of writ or order sought, e.g. a writ of prohibition) against (name of every person and authority to whom the writ or order is proposed to be directed or against whom the information is proposed to be exhibited). Ex parte (name of the prosecutor, relator or applicant). ”

except in the case of an order for the production of a person as a witness or proceedings pending in the Court, in which case it shall be entitled in the proceedings.

(b) For all other purposes, the proceedings may be described in the following manner:

“Re (name of the party who is effectively the respondent); Ex parte (name of prosecutor, relator or applicant). ”

(2) (a) Where a writ of mandamus or prohibition is sought against an officer of the Commonwealth the officer shall be described in the title by his name and the name of his office.

(b) In all other cases a party respondent may be described in the title by his name or the name of his office or both, or, in the case of a magistrate or justice in a court of summary jurisdiction, as the magistrate or justice at the place where the court is held.

(3) The applicant shall be called:

(a) in the case of an application for a writ of mandamus or relief of a like nature, or of an application for a writ of prohibition — the prosecutor;

(b) in the case of an application for an information of quo warranto or relief of a like nature — the relator; and

9 Terms

The order to shew cause may be granted upon such terms as to costs and as to giving security or otherwise as the Court or Justice thinks fit.

10 Stay of proceedings

An order nisi for certiorari or prohibition shall, if the Court or a Justice so directs, operate as a stay of the proceedings in question until the determination of the application or until the Court or a Justice otherwise orders.

11 Applicant limited to grounds and relief set out in order nisi

(1) The grounds of the application and the relief sought shall be set out in the order nisi or notice of motion, if any, and, if the applicant intends to ask for an amendment at the hearing, he shall give notice of his intention and of the proposed amendment.

(2) The Court or Justice may allow an amendment which it or he thinks necessary for the advancement of justice, but, without the leave of the Court or Justice, a ground shall not be relied upon or relief sought on the hearing other than a ground set out in the order nisi or notice of motion.

12 Right to be heard in opposition and liability to costs

(1) At the hearing of the application, the Court or Justice shall hear any person who desires to oppose it and appears to the Court or Justice to be a proper person to be heard, notwithstanding that he has not been served with the order nisi or notice of motion.

(2) A person who is served with the order nisi or notice of motion, or who is heard under this rule, may be ordered to pay costs in the discretion of the Court or Justice.

13 Affidavits in reply and direct trial or inquiry

(1) At the hearing of the application the Court or Justice may allow the applicant to use further affidavits upon such terms as to adjournment or costs as the Court or Justice thinks just.

(2) When the applicant intends to ask to be allowed to use further affidavits, he shall give reasonable notice of his intention, and shall supply, on demand and upon payment of the proper charges, copies of the further affidavits to the other parties.

(3) When a question or issue of fact arises upon the affidavits, the Court or Justice may give such directions as it or he thinks fit for the determination of the question or issue by trial or inquiry.

14 Order absolute

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

15 Costs

When the order is made absolute, the Court or a Justice may dispose of the costs of the proceedings either by the final judgment or by a separate order.

16 Issue and filing of writs etc

(1) A writ issued in proceedings to which this Order relates shall:

(a) bear date of the day on which it is issued;

(b) be tested in the manner provided in Order 2, rule 7; and

(c) be filed in the Registry out of which it is issued, together with the return to the writ and a copy of any order made on it.

(2) Such a writ shall be prepared by the solicitor or party issuing it out and shall, before being sealed, be endorsed with the name and address of that solicitor or party, and, if issued out by the solicitor as agent, with the name and address of the principal also.

(3) An order to return the writ shall require the return to be made within such period as is named in the order.

II Certiorari

17 Time and notice

(1) An order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed, of an inferior court or tribunal, or of a magistrate or justices, shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law.

(2) Where the judgment, order, conviction or other proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court or Justice may adjourn the application for the order nisi until the appeal is determined or the time for appealing has expired.

III Mandamus

18 Person interested — prosecutor to be named

(1) 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.

(2) Subject to the next succeeding subrule, the applicant shall state by his own affidavit that the application is to be made at his instance as prosecutor.

(3) Where the applicant is a corporation, an officer or agent of the corporation shall state by his affidavit that the application is to be made by the corporation as prosecutor.

19 Form of writ

(1) Unless otherwise ordered by the Court or Justice, a writ of mandamus shall command the person to whom it is addressed to do the act in question or shew cause why he has not done it.

(2) The Court or Justice may direct that the command shall be peremptory in the first instance.

20 Time for return of writ

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.

21 Service

Unless the Court or Justice otherwise directs:

(a) when a writ of mandamus is directed to one person only, the original writ shall be personally served upon him by delivering it to him; and

(b) 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 a writ of summons, and upon the remaining person by delivering the original writ to him.

22 Service on corporate body etc

Unless otherwise directed by the Court or Justice, when a writ of mandamus is directed to a body corporate or public authority, it shall be served on that body or authority in the manner provided by Order 9, rule 6.

23 Return

The person or persons to whom a writ of mandamus is directed shall, within the time allowed by the writ, file the writ or a copy of the writ in the Registry from which it was issued, together with a certificate, endorsed on or attached to the writ or copy, and signed by him or them, setting forth that he or they has or have done the act commanded by the writ or setting forth the reason why he or they has or have not done so.

24 Service

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

25 Pleading to return

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.

26 No motion for judgment

When a point of law is raised in answer to a return or another pleading in mandamus, and there is no issue of fact to be decided, the Court shall, on the argument of the point of law, give judgment for the successful party without a motion for judgment being made or required.

27 Peremptory writ

(1) If the questions of fact and law 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 person or persons to whom the first writ was directed to do the act commanded in that writ.

(2) The peremptory writ shall be awarded by the judgment, if any, or, if there is no judgment, by a separate order.

28 Costs when peremptory writ awarded in first instance or on obedience

(1) 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.

(2) 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 after the return is filed, at a time not later than the seventh day of the sittings of the Court held next after the day on which the return is filed, at the place of the Registry in which it is so filed.

29 Proceedings in nature of interpleader

(1) When, upon an application for a writ of mandamus, it appears that a 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, notice of motion or writ is directed may apply to the Court or a Justice for an order that that other person be substituted for him, or joined with him, in all subsequent proceedings up to the issue of a peremptory writ of mandamus.

(2) The Court or Justice may make such order on the application as is just.

(3) The proceedings shall not abate or be discontinued by reason of the death, resignation or removal from office of the person to whom the order nisi, notice of motion or writ is directed, but they may be continued and carried on either in his name or otherwise, and, if a peremptory writ is awarded, it shall be directed to the successor in office or right of that person.

30 Time

An application for a writ of mandamus, or an order in the nature of mandamus, to a judicial tribunal to hear and determine 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 a Justice.

31 Mandamus by order

Subject to paragraph (v) of section 75 of the Constitution of the Commonwealth, when the Court or Justice directs that the command shall be peremptory in the first instance, the command may be expressed in an order of the Court without the issue of a writ, and the order shall have the same effect as a peremptory writ of mandamus.

32 Enforcement of order like judgment

The provisions of Order 45, rule 3, apply to mandamus.

33 No action against party obeying writ or order

An action or proceeding shall not be commenced or prosecuted against a person in respect of a thing done in obedience to a writ of mandamus or an order of the Court for relief of the like nature issued by the Court or a Justice.

IV Prohibition

34 Pleadings in prohibition

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 proceedings shall be had and taken in all respects as on a statement of claim in an action.

35 Proceeding on judgment

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

36 Writ of procedendo

(1) When a writ of prohibition has been issued and it is afterwards made to appear to the Court or a Justice that relief ought to be given against the judgment or order by which the writ was awarded on a ground on which relief might be given against a judgment in an action, the Court or Justice may direct that 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 in question, or otherwise proceed in the matter as if the writ of prohibition had not been issued.

(2) The writ of procedendo shall be in the form numbered 56 in the First Schedule, or to the like effect.

37 Prohibition by order

Subject to paragraph (v) of section 75 of the Constitution of the Commonwealth, the prohibition may be expressed in an order of the Court without the issue of a writ and the order shall have the same effect as a writ of prohibition.

V Habeas Corpus

38 Affidavit in case of habeas corpus

(1) Subject to the next succeeding subrule, in the case of an application for a writ of habeas corpus, an affidavit shall be made by the person restrained showing that the application is made at his instance and setting out the nature of the restraint.

(2) The last preceding subrule does not apply:

(a) to an application made on behalf of an infant; or

(b) when the person restrained is unable to make the affidavit.

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

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

40 Service

(1) A writ of habeas corpus or an order for production, directed to a person charged by law with the custody of persons in lawful custody or confinement or to a public officer, may be served personally or by leaving the original with a servant, agent 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.

(2) A writ of habeas corpus to which the last preceding subrule does not apply shall be served personally unless an order for substituted service is made as provided for by Order 9, rule 3, and Order 62, rule 7.

(3) 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.

(4) A notice, directed to the person to whom the writ is addressed, shall be served with a writ of habeas corpus.

(5) The notice shall state:

(a) the Court or Justice before whom, and the date on which, the person restrained is to be brought;

(b) that, in default of obedience, proceedings for attachment of the party disobeying will be taken;

(d) the consequences of making default.

41 Direction as to return of writ

When the writ is ordered to issue, the Court or Justice by whom the order is made shall give directions as to the Court or Justice before whom the writ is returnable, and the writ shall be returnable immediately.

42 Returns to writs of habeas corpus

(1) The person to whom a writ of habeas corpus is directed shall, at the time and place specified in the writ, make his return to the writ.

(2) The return shall:

(a) be endorsed upon or attached to the writ;

(b) set out all the causes of the detention of the person named in the writ; and

43 Amendment of return

The return may be amended or another return substituted for it by leave of the Court or a Justice.

44 Proceedings on return

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

45 Order of speeches

When the person in custody is brought up in accordance with the writ, he or his counsel shall first be heard, then the person denying his right to be discharged, or his counsel, and then the first-named person, or his counsel, in reply.

46 Discharge without writ

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 such an order is as effectual as if it had been made on the return of a writ.

VI Quo Warranto

47 Relator to be named

(1) Upon an application for an order for leave to exhibit an information of quo warranto, or for relief of a like nature, the applicant shall state by affidavit that the application is to be made at his instance as relator.

(2) 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.

48 Form of information

(1) 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.

(2) An objection to the title of the defendant not set out in the order nisi shall not be raised in the information without the leave of the Court or a Justice.

49 Signature and service of information

(1) The information shall be in the name of the Attorney-General for the Commonwealth or the relator, as the case may be, on behalf of Her Majesty, and shall be signed by the Attorney-General or relator.

(2) 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.

50 Defence and subsequent proceedings

(1) 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.

(2) 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.

51 Judgment

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

52 Disclaimer

(1) The defendant may, if he thinks fit, disclaim the office in question.

(2) The disclaimer shall be:

(a) signed by the defendant and attested by a person before whom affidavits are authorized by Order 39 to be sworn or taken; and

(b) filed in the Registry from which the information was issued.

(3) A copy of the disclaimer shall be served on the relator within the time allowed for delivering a defence.

(4) 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.

53 Consolidation

(1) When proceedings by information of quo warranto, or for relief of a like nature, are pending against several persons for usurpation 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 other proceedings, and for that purpose may make such orders as are just.

(2) An order for consolidation or stay of proceedings against a defendant shall not be made upon the application of that 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.

Order 56 Committal for contempt of Court

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1 Contempt in the face of the Court

(1) When it is alleged, or appears to the Court upon its own view, that a person has been guilty of contempt of Court, committed in the face of the Court or in the hearing of the Court, the presiding Justice may, by oral order, direct that person to be arrested and brought before the Court forthwith, or may issue a warrant under his hand for the arrest of the accused person.

(2) When the accused person is brought before the Court, the Court shall:

(a) cause him to be informed orally of the contempt with which he is charged;

(b) require him to make his defence to the charge;

(d) make such order for the punishment or discharge of the accused person as is just.

(3) Unless the Court allows him to be discharged on bail, the accused person shall be detained in such custody as the Court or Justice directs until the charge is disposed of.

(4) The powers given by this rule are exercisable, mutatis mutandis, by a Justice sitting in Chambers except that the accused person shall be brought before a Justice or Justices sitting in Court, and he or they shall hear and determine the charge and make the order.

2 In other cases

In a case to which the last preceding rule does not apply, 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.

3 Form of notice

The notice of motion shall:

(a) specify the contempt of which the accused person is alleged to be guilty; and

(b) be entitled in the proceeding, 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 a particular proceeding, shall be entitled “The Queen against” the accused person, naming him, ex parte the applicant.

4 Service

The notice of motion shall be served personally unless the Court or Justice otherwise orders.

5 Copies of affidavits to be served

Copies of the affidavits intended to be used upon the application to the Court shall be served with the notice of motion.

6 Arrest of contemnor likely to abscond

When it is made to appear to a Justice that:

(a) a notice of motion for the committal of a person for contempt has been filed; and

(b) the accused person is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court;

the Justice may by his warrant direct that the accused person shall be arrested and detained in custody until he is brought before the Court to answer the charge, unless he, in the meantime, gives security, in such sum as the Justice directs, for his appearance in person to answer the charge and to submit to the judgment of the Court.

7 Form of warrant

A bench or other warrant or precept which may be required for the arrest or detention of a person under these rules, or for the purpose of giving effect to an order of committal, shall be addressed to the Marshal, and may be issued:

(a) where the arrest or detention is ordered or directed by the Court, under the hand of the presiding Justice; or

(b) in other cases, under the hand of the Justice.

8 Abolition of interrogatories

The accused person in proceedings for committal shall not be put to answer interrogatories.

9 Punishment

(1) Upon the hearing of an application for committal, 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.

(2) When the Court imposes a fine, it may order that the accused person be imprisoned, or further imprisoned, until the fine is paid.

10 Order of committal

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.

11 Discharge

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.

12 Costs

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 57 Officers, and execution of process

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1 Execution of process by Marshal etc

The Marshal or a Deputy Marshal charged with the service or execution of a process shall serve or execute by himself or his officers any instrument issued from the Court which is addressed to him and shall make such return of the service or execution, as the case may be, as is required by the instrument.

2 Mode of making returns

The return shall be made by filing the original process in the Registry from which the process was issued with a certificate, endorsed on or annexed to it, signed by the Marshal or Deputy Marshal and setting forth what has been done under the process.

3 Return of non est inventus

When a writ of summons or other process is delivered to the Marshal, Deputy Marshal or other officer appointed in that behalf for service upon a person, and the Marshal, Deputy Marshal or other 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.

4 Notice to Marshal to return writ

(1) Where:

(a) notice from a person issuing a writ or obtaining an order for attachment or committal, or, if he is represented by a solicitor, from his solicitor, calls upon the Marshal or his Deputy to return the writ, to make his report or to bring in the body within a time specified in the notice; and

(b) the notice is not complied with;

that person may apply for an order for attachment of the Marshal or Deputy.

(2) The time to be specified in the notice shall not be less than seven days.

5 Rules of Court

The Principal Registrar shall:

(a) countersign all rules of Court made and promulgated by the Justices;

(b) cause copies of rules of Court, certified by him, to be transmitted to the Attorney-General’s Department and to be notified in the Gazette; and

(c) keep the originals of rules of Court, and of all rules and Orders made before the commencement of these rules, in safe custody.

6 General authority of Registrar

A Registrar shall have the general supervision of the officers employed in the Registry of which he is Registrar, and shall, subject to these rules and any law, distribute their duties from time to time in such manner as he thinks fit, but so that when an officer is appointed to discharge a special duty, that duty shall be discharged by that officer.

7 Power of officers

(1) A writ or commission may be signed for a Registrar, and a document may be received and filed, by an officer to whom such duties are assigned in a Registry.

(2) A judgment which is not actually settled by a Registrar may, in like manner, be signed for a Registrar by an officer to whom that duty is assigned.

8 Fees to be prepaid

A document in respect of which a fee is payable shall not be received, sealed or filed until the fee has been paid.

Order 58 Registries

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1 Taking of oaths and affidavits

A Registrar has, by virtue of his office, authority to take oaths, affirmations and affidavits for the purposes of the Court and proceedings in the Court.

2 Use of Seal

(1) The Seal of the High Court of Australia shall be affixed to:

(a) rules of Court made by the Justices;

(b) commissions issued by authority of the Court or a Justice, whether under the authority of an Act or of rules of Court;

(d) writs of certiorari, mandamus, prohibition and habeas corpus;

(e) documents issued from the Court for use outside the Commonwealth, not being writs or other documents for service on a party to a proceeding; and

(f) such other documents as the Court or a Justice in any case directs.

(2) The Seal referred to in the preceding subrule shall be in the form represented hereunder.

3 Office Seal

(2) 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.

4 Sealing writs etc

(1) Where a person desires to sue out a writ, process or commission authorized by law or by these or any other rules of Court, he may prepare it (in the prescribed form, if any) and present it to a Registrar for issue.

(2) If it appears that the writ, process or commission is in proper form and that the person presenting it for issue is entitled to sue it out, the Registrar or his clerk shall sign and seal it with the Office Seal.

(3) If the writ, process or commission appears to a Registrar on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall seek the direction of a Justice who may direct him to issue it or to refuse to issue it without the leave of a Justice first had and obtained by the party seeking to issue it.

5 Sealed copies etc receivable in evidence

A copy, exemplification, certificate or other document appearing to be sealed with a seal of a Registry shall be presumed to be an office copy, exemplification, certificate or other document issued from that Registry, and, if it is duly stamped where a stamp is required, may be received in evidence, and no signature or other formalities, except the sealing with a seal of a Registry, shall be required for the authentication of that copy, exemplification, certificate or other document.

6 Date upon documents filed

Upon every document which is filed in a Registry the date of filing it shall be noted.

7 Custody of papers

Each Registrar shall have the custody of such of the records of the Court as are kept in the Registry of which he is Registrar and of the documents filed in that Registry or ordered to be deposited for safe custody, or impounded, in that Registry.

8 lndexes to files to be kept

(1) Proper indexes or calendars to the files or bundles of documents filed in a Registry shall be kept so that they may be conveniently referred to when required.

(2) Any person shall, on payment of the prescribed fee, be entitled, during office hours, to search for, inspect and take a copy of any documents filed in an office of the Registry, except:

(i) affidavits other than an affidavit which serves as an originating process, and

(ii) the annexures and exhibits to any affidavit

prior to the admission of any such affidavit, annexure or exhibit in evidence in Court.

9 Register of documents filed and steps taken

(1) In each Registry a record of all documents filed and all steps taken in every proceeding in that Registry shall be kept, showing the dates of filing the documents and taking the steps so that all steps in the proceeding are shown consecutively and in chronological order.

(2) The record shall, at all times during office hours, be accessible to the public on payment of the prescribed fee.

10 Documents to be folded lengthwise

A document left at the office of a Registry to be filed shall be printed, typewritten or written on not less than half a sheet of foolscap paper, folded lengthwise.

11 Reference on judgment etc to record

Each judgment, order, certificate, petition, affidavit or document made, presented, filed or used in a proceeding shall be distinguished by having plainly written or stamped on its first page the year and the number, if any, by which the proceeding is distinguished in the books kept at the Registry in which the proceeding is or was pending.

12 Dates of judgments etc to be entered in appropriate books

The date of every judgment, order and certificate made in every proceeding shall be entered in the appropriate books in the Registry in which the proceeding is or was pending.

13 Certificates to be filed

A certificate of a Registrar made in pursuance of a judgment or order shall be filed in the Registry in which the judgment or order is entered.

14 Production of records

(1) Except for the purpose of transmission between Registries under the High Court of Australia Act 1979 or the Judiciary Act, a document shall not be taken out of a Registry without the permission of the Court or a Justice.

(2) A subpoena for the production of a document in a Registry shall not be issued.

15 Fees of officer required to attend away from Registry

Where an officer of a Registry is required to attend with a record or document at a sittings or at a court or place other than in or at the building where the Registry of which he is an officer is situated, he may require that the solicitor or party desiring his attendance shall:

(a) deposit with him a sufficient sum of money to answer his just fees, charges and expenses in respect of his attendance; and

(b) undertake to pay any further just fees, charges and expenses which may not be fully answered by the deposit.

16 Scandalous matter

The Court or a Justice may upon application, order that:

(a) an affidavit or other document filed in a Registry which contains scandalous matter shall be taken off the file; and

(b) the costs of the application be paid by the party by whom the affidavit or document was filed, or by his solicitor.

17 Directions to Registrar

A party may apply to the Court or a Justice ex parte in a summary way for a direction to a Registrar to do an act:

(a) which he is bound or entitled to do;

(b) which the party applying requires him to do; and

18 Attendance of officer on Court

Any officer of the Court shall attend a sitting of a Full Court or a sitting of a Justice in Court on any occasion when he is required by the Court or the Justice to do so.

Order 59 Sittings and vacations

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1 Full Court

(1) Sittings of a Full Court shall be held in each year at such places and on such days as are appointed by rule of Court for that year.

(2) Sittings of a Full Court may also be held at such places and on such days as may be specially appointed by the Chief Justice, or, if the office of Chief Justice is vacant or the Chief Justice is absent from the Commonwealth or is on leave or unable to perform the duties of his office, by the senior Justice.

2 Sittings before single Justice

Sittings of single Justices in Court or in Chambers shall be held at such places and on such days as are appointed by rule of Court, and may also be held at such places and on such days as a Justice thinks fit to sit in Court or in Chambers.

3 Postponement of sitting when Registry closed

If the day appointed for the commencement of a sitting is a day on which the Registry of the Court at the place where the sitting is proposed to be held is closed in accordance with rule 5 of this Order, the sitting shall commence upon the next day on which that Registry is open.

4 Vacations

(1) There shall be two vacations in each year, namely, the Long Vacation of seven weeks beginning on a day in December to be appointed annually by the Justices or a majority of them, and the Winter Vacation of five weeks beginning on a day in June or July to be appointed annually in like manner.

(2) The days of the commencement and termination of each sitting and vacation shall be included in the sitting and vacation respectively.

5 Holidays

(1) Subject to the next succeeding subrule, each Registry of the Court shall be open during office hours on every day in the year except:

(a) Saturdays, Sundays, New Year’s Day, Good Friday, Easter Monday, Easter Tuesday, Christmas Day, and the days between Christmas Day and New Year’s Day inclusive.

(b) the day observed as a general public or bank holiday for the birthday of the Sovereign in the place where each Registry is situated respectively;

(c) every day observed as a holiday in the Commonwealth Public Service, or duly appointed as a general public or bank holiday in the State or Territory where each Registry is situated respectively and observed by the Supreme Court of that State or Territory as a Court holiday; and

(d) such other days as may be appointed from time to time by the Chief Justice.

6 Office hours

(1) The office hours in each Registry shall be from nine o’clock in the forenoon until one o’clock in the afternoon, and from two o’clock in the afternoon until four o’clock in the afternoon.

7 [Opening for urgent business]

A Registry may in the discretion of the Registrar, and shall on the direction of a Justice, be opened at any time for urgent business.

Order 60 Time

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1 Month means calendar month

Where by these rules, or by a judgment or order, the time for doing an act is limited by months, and where the word month occurs in a document which is part of any legal procedure under these rules, the time shall be computed by calendar months, unless otherwise expressed.

2 Exclusion of Sundays etc

Where a limited time less than six days from or after a date or an event is appointed or allowed for doing an act, Sunday, Christmas Day, Good Friday, and any other day on which the Registry of the Court is not open in the State or Territory where the act is to be done, shall not be reckoned in the computation of that limited time.

3 Time expiring on Sunday or close day

(1) Where:

(a) the last day prescribed or allowed by these rules, or by a judgment or order of the Court or a Justice, for doing an act or filing a document expires on a Saturday or Sunday or other day on which the Registry is not open in the State or Territory where the act is to be or may be done or the document is to be or may be filed; and

(b) by reason of the Registry not being so open the act cannot be done or the document cannot be filed on that day;

the act shall, so far as regards the time of doing it, be held to be duly done, and the document shall in like manner be held to be duly filed, if done or filed, as the case may be, on the day on which that Registry is next open.

(2) When the time for entering an appearance expires on a day between the twenty-fourth day of December and the first day of January, both inclusive, that time shall extend up to and include the tenth day of January.

4 Taking of proceedings in vacation

Unless the Court or a Justice otherwise directs, the Long Vacation shall be excluded in reckoning any period prescribed by these rules or by any order or direction for serving, filing or amending any pleading.

5 When time for giving security for costs not to be reckoned

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 time allowed to a party, other than the party ordered to give the security, to plead, answer interrogatories or take any other step.

6 Power of Court or Justice to enlarge or abridge time

(1) A Court or Justice may enlarge or abridge the time appointed by these rules or fixed by an order of the Court or a Justice for doing an act upon such terms, if any, as the justice of the case requires.

(2) An enlargement of time may be ordered although the application for it is not made until after the expiration of the time appointed or fixed.

(3) When the time for delivering a pleading or document, for filing an affidavit, answer or document or for doing an act is or has been fixed or limited by these rules, or by a direction on or under a summons for directions or by an order of the Court or a Justice, the costs of an application to extend that time, and of an order on the application, shall be borne by the party making the application, unless the Court or a Justice otherwise orders.

7 Enlargement of time by consent

The time for delivering, amending or filing a pleading, answer or other document may be enlarged by consent in writing without application to the Court or a Justice.

8 Appointment of early day for trial in Admiralty actions

(1) In an Admiralty action, the Court or a Justice may at any stage, upon a motion or summons by a party for the trial to take place on an early day to be appointed by the Court or a Justice, appoint that the trial shall take place on such day, or within such time, as the Court or Justice thinks fit.

(2) For that purpose the Court or Justice may, upon the motion or summons, dispense with the giving of notice of trial or abridge the time or times appointed by these rules for giving the notice, for the delivery of pleadings, or for doing any other act, upon such terms as are just.

9 No service on Sunday etc and time of day of service

(1) Service of pleadings, notices, summonses, orders, rules and other documents, other than a warrant, shall not be made on Sunday, Christmas Day or Good Friday.

(2) Service of pleadings, notices, summonses, orders, rules and other documents effected after four o’clock in the afternoon on a weekday, other than Friday or Saturday, shall, for the purpose of computing a period of time subsequent to the service, be deemed to have been effected on the day following the day of service.

(3) Service effected after four o’clock in the afternoon on Friday, and service effected on Saturday, shall be deemed to have been effected on the day on which the Registry in the State or Territory where the service is effected is next open.

10 Reckoning of time

Where a period of time dating from or after a given day, act or event is prescribed or allowed by these rules, or by a judgment or order of the Court or a Justice, for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of that day or of the day of that act or event.

11 Number of days, how computed

(1) Where a particular number of days, not expressed to be clear days, is prescribed by these rules, they shall be reckoned exclusive of the first day and inclusive of the last day.

(2) Whenever the expression clear days is used in these rules, the days shall be reckoned exclusive of the first and last day and of any day on which the Registry of the Court in the State or Territory in which the act is to be done is not open.

12 Delays of one year and 6 years in taking steps

(1) In a proceeding in which a step has not been taken for one year, the party who desires to proceed shall give one month’s notice to every other party of his intention to proceed.

(2) When six years have elapsed from the time when the last step in a proceeding was taken, a fresh step shall not be taken without an order of the Court or a Justice, which may be made either ex parte or upon notice.

(3) For the purposes of this rule:

(a) a summons on which an order has not been made shall not be deemed a step taken; and

(b) notice of trial, although avoided by non-entry or countermanded, shall be deemed a step taken.

13 Time for applications to set aside awards

An application to set aside or remit an award may be made at any time within six weeks after the award has been made and published to the parties.

Order 61 Notices, printing, paper, copies etc

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1 Interpretation

In this Order, unless the contrary intention appears, print and derivatives of that word include any form of reproduction which complies with the next succeeding rule.

2 Regulations for printing

Where by any provision of these rules a document is required or allowed to be printed, that document may be either printed or reproduced, subject to the provisions of rule 4 of this Order, by roneograph or some other multigraphing process which gives uniform facsimile pages of clear, sharp and legible type.

3 Notices to be in writing

A notice or consent required or allowed by these rules shall be written, typewritten or printed unless expressly authorized by the Court or a Justice to be given orally.

4 Requirements as to documents

(1) Subject to the preceding rules of this Order, a writ, summons, petition, notice, consent, pleading, affidavit, deposition, certificate, judgment, order, account, bill of costs, copy, paper or other document required or allowed by these rules, or delivered to a party or person, or filed or left in a Registry or at Chambers or with an officer of the Court, or otherwise, for use in or in connexion with a proceeding, shall, unless the nature of the document renders it in any respect impracticable:

(a) be legibly and clearly written, typewritten or printed, without blotting, erasure or such alteration as to cause material disfigurement;

(b) have a space of not less than a quarter of an inch between each line;

(c) be upon paper of the size known as International Paper Size A4, that is to say, measuring approximately 113/4 inches by 81/4 inches, of good and durable quality and capable of receiving ink writing;

(d) be upon one side only of the paper with a quarter margin upon the left hand side of each sheet;

(e) be folded lengthwise;

(f) have each page, and every tenth line on each page, numbered in the margin; and

(g) have a backsheet upon which appears the number, if any, and title of the proceeding, a short description of the document and the name and address of the solicitor, if any, delivering, filing, leaving or using the document.

(2) The Registrar may refuse to file or accept a document to which the last preceding subrule applies if it does not comply with the provisions of that subrule, and the costs of the document may be disallowed upon taxation.

(3) A written or typewritten copy of a document to which subrule (1) of this rule applies shall not be filed, registered or marked as an office copy unless it is a first black ink copy.

5 Where copies to be printed or typewritten

(1) When five or more copies of a document which contains more than ten folios are required for use in proceedings in the Court, or where all parties consent, copies of the document may be printed or typewritten, but, if the Court or a Justice so directs, they shall be printed and not typewritten.

(2) Where five or more copies of a document which contains more than ten folios are required for use in any proceeding in the Court, and the copies have not been printed, the taxing officer may disallow the whole or a part of any sum by which the cost of the copies exceeds the sum for which they could have been printed.

6 Affidavits

An affidavit may be sworn to either wholly or partly in, or in any combination of, print, typewriting or writing.

7 Deposition for use at trial

Where a written deposition of a witness has been filed, the deposition shall be printed or typewritten unless otherwise ordered.

8 When depositions and affidavits previously used without being printed or typewritten

The provisions of these rules as to printing or typewriting depositions and affidavits to be used on a hearing or trial do not apply to a deposition or affidavit which has previously been used upon a proceeding without having been printed or typewritten.

9 Copies furnished to other parties

(1) Where a copy or copies of a document to which rule 4 or this Order applies is or are required by a party, the party on whose behalf the document has been delivered, filed, left or used shall furnish to the party requiring the copy or copies any number of printed or typewritten copies, not exceeding ten, upon payment at the rate of six pence per folio for each copy.

(2) As between a solicitor delivering the printed or typewritten copies and his client, credit shall be given by the solicitor for the whole amount payable by the other party for those copies.

(3) A party entitled to be furnished with a printed or typewritten copy or copies shall not be allowed any charge in respect of a written copy, unless the Court or a Justice otherwise directs.

(4) The party requiring a copy or copies of a document under this rule, or his solicitor, shall make a written application to the party by whom the copy or copies is or are to be furnished, or to his solicitor, with an undertaking to pay the proper charges, and thereupon the copy or copies shall be made and be ready to be delivered, as soon as reasonably practicable, upon payment of the proper charges.

(5) If the copy or copies is or are not delivered within seventy-two hours of the application, the party requiring it or them may apply to a Justice, who may make such order as he thinks proper.

(6) The name and address of the party or solicitor by whom a copy is furnished shall be endorsed on the copy in like manner as upon a document in proceedings in the Court, and the party or solicitor shall be answerable for the copy being a true copy of the original, or of an office copy of the original, of which it purports to be a copy, as the case may be.

10 Copies of affidavits on ex parte applications

(1) Where upon an ex parte application an order is made against or affecting the rights of a person, that person may obtain a copy of the affidavits filed by the applicant in support of his application in the manner provided by the last preceding rule.

(2) The party who made the application shall furnish the copies upon payment of the proper charges immediately upon the receipt of the written request and undertaking mentioned in the last preceding rule, or within such time as may be specified in the request or may be directed by the Court or a Justice.

11 Minute book in Admiralty actions

In Admiralty actions, a record of all actions commenced and appearances entered, of all instruments and documents issued or filed, of all acts done, and of all judgments and orders made in the action, whether made by the Court or a Justice or by consent of the parties, shall be entered, in order of date under the head of each Admiralty action, and on a page numbered with the number of the action, in a book to be kept in each Registry called the Admiralty Minute Book.

Order 62 Service

I Service of Orders etc

1 Showing original order on service

(1) Except in the case of an order for attachment, it is not necessary to the regular service of a judgment or order that the original judgment or order be shewn if an office copy of it is exhibited.

(2) When it is intended to enforce obedience to a judgment or order by process of attachment, the judgment or order shall be served personally upon the person against whom the process is to be sought.

2 Where personal service required

Except where otherwise required by or pursuant to these rules, personal service of a judgment or order, or of notice of a judgment or order, is not necessary.

3 Mode and time of service where not personal

(1) A writ, notice, pleading, order, summons, warrant or other document, in respect of which personal service is not required by these rules or otherwise, may be served by being left at the address for service of the person to be served with a person apparently above the age of sixteen years resident at or belonging to that place, or by posting in a pre-paid registered envelope properly addressed to the person to be served at his address for service.

(2) Where service under this rule is made by registered post, the time at which the document so posted would be delivered in the ordinary course of post shall be deemed to be the time of service of the document.

4 Service of notice from Registry

(1) A notice sent from a Registry may be sent by post.

(2) The time at which the notice so posted would be delivered in the ordinary course of post shall be deemed to be the time of service of the notice.

(3) The posting of the notice is a sufficient service.

5 Service where no appearance or no address for service

(1) Where:

(a) an appearance has not been entered for a party;

(b) a party or his solicitor, as the case may be, has not given an address for service as required by these rules;

(d) a solicitor who has acted for a party in a proceeding has ceased so to act and the party has not given a fresh address for service;

a writ, notice, pleading, order, summons, warrant or other document, in respect of which personal service is not required by these rules or otherwise, may be served by filing it with the proper officer of the Court.

(2) A document so filed shall:

(a) bear an endorsement on the outside in the following words: “Filed in default of appearance” (or as the case may be); and

(b) be posted up, and remain posted up for fourteen days, in the Registry in which it is filed.

6 Manner of personal service

Where personal service of a writ, notice, pleading, order, summons, warrant or other document is required by these rules or otherwise, the service shall be effected as nearly as may be in the manner prescribed for the personal service of a writ of summons.

7 Substituted service

(1) Where personal service of a writ, notice, pleading, summons, order, warrant or other document is required by these rules or otherwise, and 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 for service of notice by telegram, letter, public advertisement or otherwise, as is thought proper.

(2) Service effected in accordance with an order for substituted service has the same operation as personal service.

8 Service upon solicitor of person not a party

When a person who is not a party appears in a proceeding either before the Court or in Chambers, service in the place where the Registry in which the proceeding is pending is situate upon the solicitor, if any, by whom the person appears, whether the solicitor acts as principal or agent, shall be deemed good service except in matters requiring personal service.

9 Affidavits of service

An affidavit of service shall state when, where, how and by whom the service was effected, and, in the case of a writ of summons or other originating process, the date on which the endorsement required by Order 9, rule 15, was made.

II Admiralty Actions

10 Service of instrument

An instrument requiring to be served shall be served within twelve months from the day on which it bears date, otherwise the service of the instrument is not valid.

11 Service of warrants etc by Marshal

A warrant or other instrument required to be served or executed by the Marshal or Deputy Marshal shall be left by the party taking it out in the Registry with written instructions for its service or execution.

12 Verification of service

(1) The service or execution of an instrument by the Marshal or Deputy Marshal, or any other officer charged with the service or execution of process, shall be verified by his certificate.

(2) The certificate shall state by whom the instrument has been served or executed and the date and mode of service or execution, and shall be signed by the Marshal, Deputy Marshal or that other officer, as the case may be.

(3) The service of an instrument by a solicitor, or by his clerk or agent, or by any other person, shall be verified by an affidavit.

Order 63 Staying proceedings

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1 General authority to stay

The Court or a Justice may, at any time after the institution of a proceeding, direct a stay of proceedings, either as to the whole or part of the proceeding or as to any proceedings under a judgment or order given or made in the proceeding.

2 Stay of proceedings on ground of abuse of process

An application to stay proceedings on the ground that there is not a reasonable or probable cause of action or suit, or that the proceeding is vexatious and oppressive or is an abuse of the process 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.

3 Stay of proceedings instituted by next friend

The Court or a Justice may stay a proceeding which has been improperly instituted in the name of a person by a next friend.

4 Withdrawing juror

When, at the trial of an action before a Justice with a jury, a juror is withdrawn with the consent of the parties, the withdrawal has the effect of an order by consent for the staying of the proceeding, except so far as the Court or Justice at the time of the withdrawal, and with the consent of the parties, otherwise orders.

5 Staying action until costs paid

When an action is discontinued or dismissed for want of prosecution and, 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 the costs have been paid.

6 Vexatious proceedings

(1) Upon the application of a Law Officer, or the Australian Government Solicitor or of the Principal Registrar of the Court, the Court or a Justice, if satisfied that a person, or another person in concert with that person, frequently and without reasonable ground has instituted vexatious legal proceedings, may, after hearing that person or that other person or giving him an opportunity of being heard, order that he shall not, without the leave of the Court or a Justice, begin any action appeal or other proceeding in the Court.

(2) Leave shall not be given under this rule unless the Court or a Justice is satisfied that the proceedings are not an abuse of the process of the Court and that there is prima facie ground for the proceedings.

Order 64 Effect of non-compliance

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1 Non-compliance with Rules not to render proceedings void

(1) Subject to the next succeeding subrule, non-compliance with these rules or with a rule of practice for the time being in force, does not render any proceedings void unless the Court or a Justice so directs.

(2) The proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with in such manner and upon such terms as the Court or Justice thinks fit.

2 Court may relieve from consequences of non‑compliance

The Court or a Justice may at any time, upon such terms as are just, relieve a party from the consequences of non-compliance with these rules or with a rule of practice for the time being in force.

3 Application to set aside for irregularity, when allowed

An application to set aside proceedings for irregularity shall not be allowed:

(a) unless the application is made within reasonable time; or

(b) if the party applying has taken a fresh step after knowledge of the irregularity.

4 Objections of irregularity

Where an application is made to set aside proceedings for irregularity, the several objections intended to be relied upon shall be stated in the summons or notice of motion.

5 Forms

The several forms in the First Schedule may, and, in a case in which it is so required by these rules, shall, be used for the several purposes to which they are respectively applicable, with such variations as the circumstances require.

Order 68 Election petitions

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1 Interpretation

In this Order, member includes senator and member of the House of Representatives.

2 Application of Rules

These rules, so far as they are applicable and are not inconsistent with this Order, extend and apply to proceedings in the Court in the exercise of its jurisdiction as the Court of Disputed Returns.

2A Form for petition

A petition disputing an election or return must be in the form numbered 70 in the First Schedule.

3 Publication

The petitioner shall, forthwith after the filing of a petition:

(a) publish a copy of the petition in the Commonwealth Gazette and in the official Gazette of the State in which the election was held; and

(b) in the case of an election of a member of the House of Representatives, publish in some newspaper circulating in the Electoral Division for which the election was held a notice setting forth the fact of the filing of the petition, the date of filing, 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.

4 Address for service

(1) A person who has been returned as a member may file in the Registry in the State or Territory in which the election was held a notice in writing signed by him stating an address for service upon him of a petition under this Order.

(2) The address for service shall comply with the provisions of
Order 4.

5 Service of petition

(1) The petitioner shall, within twenty-eight days after the filing of the petition, or within such further time as a Justice allows, cause an office copy of the petition to be served upon every person whose election or return is disputed by the petition.

(2) Service of the office copy of the petition under this rule may be effected either:

(a) personally; or

(b) in accordance with the provisions of Order 62, rule 3.

6 Appearances

(1) A person returned as a member whose election or return is disputed by a petition shall, within fourteen days after service of the petition, and a 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.

(2) A person so entering an appearance shall be deemed to be a party to the proceedings upon the petition.

7 Particulars of votes objected to

(1) 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 that person had a majority of valid votes, each party shall, seven days before the day appointed for the trial of the petition, file in the Registry and deliver 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.

(2) An objection shall not be entertained against the validity of a ballot-paper upon a ground not specified in the lists so filed and 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 orders.

8 Counter-charges

(1) When a petition claims a seat for a person who has not been returned as a member and a party respondent desires to contend 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 seven days after entering his appearance, or within such further time as the Court or a Justice allows, file in the Registry and deliver to the petitioner at his address for service a statement of the grounds on which he intends to rely.

(2) The statement shall set forth the grounds in the same manner in which facts relied on to invalidate an election or return are required to be set forth in a petition.

9 Particulars

The Court or a Justice may order a party to the proceedings upon a petition to deliver to another party particulars, or further and better particulars, of a matter alleged by that party.

10 Trial

(1) The trial of a petition under this Order shall be held at a time and place to be appointed by the order of a Justice on the application of a party to the petition.

(2) Fourteen 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 petitioner in some newspaper circulating in the State or Electoral Division for which the election was held.

(3) An order appointing the time and place of trial may be varied from time to time.

11 Withdrawal of petition and substitution of another petitioner

(1) A petition may be withdrawn by leave of the Court or a Justice upon such terms as the Court or Justice thinks fit.

(2) Fourteen days’ notice of the intention to apply for leave under the last preceding subrule shall be given by the petitioner by advertisement in some newspaper circulating in the State or Electoral Division for which the election was held.

(3) At the hearing of the application, the Court or Justice may allow any other person who was competent to file a petition on the like grounds to be substituted for the petitioner, and the proceedings upon the petition shall thereupon be continued as if the person so substituted had been the original petitioner.

12 Abatement by death of petitioner

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 file a petition on the same grounds to be substituted as petitioner and the proceedings upon the petition shall thereupon be continued as if the person so substituted had been the original petitioner.

Order 69 Proceedings upon indictments filed without previous examination or commitment for trial

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1 Service of indictment

(1) When an indictment has been filed by the Attorney-General without examination or commitment for trial, an office copy of the indictment shall be served upon the accused person.

(2) A summons shall be endorsed upon the office copy of the indictment, under the hand of a Registrar and the seal of the Court, requiring the accused person to appear to the indictment within the same time after the service within which he would be required to enter an appearance after the service of a writ of summons in a civil action.

(3) The summons shall be endorsed upon the office copy whether a warrant for arrest is issued or not.

(4) A notice shall be added to the summons informing the accused person that, in default of his compliance with the exigency of the summons, a warrant may be issued for his arrest.

2 Appearance

The accused person shall, within the time limited by the summons, enter an appearance in the Registry named in the summons in that behalf, and deliver a copy of the appearance forthwith at the office of the Crown Solicitor for the Commonwealth, or his agent, in the State or Territory in which that Registry is situated.

3 Default of appearance

If the accused person does not enter an appearance, a warrant may be issued for his arrest.

4 Evidence for warrant

An application for a warrant to arrest the accused shall be supported by affidavit.

5 Form of warrant

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 the trial.

6 Service of indictment

An office copy of the indictment, endorsed in accordance with rule 1 of this Order, shall be delivered to the accused at the time of arrest.

7 Applications for bail

An application for bail may be made to a Justice sitting in Chambers.

8 Time and place of trial

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.

Order 69A Applications for leave or special leave to appeal

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1 Interpretation

In this Order, unless the contrary intention appears:

applicant, in relation to an application, means the person making the application.

application means an application for leave or special leave to appeal to the Court and for the purpose of rule 14 includes an application filed prior to 1 January 1997.

Court below means the Court, Justice or Judge pronouncing the judgment below.

indictment includes an information or other process setting out the offence with which an applicant was charged before the court first recording a conviction or sentence.

judgment includes an order, a conviction and a sentence.

judgment below, in relation to an application, means the judgment from which it is sought to appeal.

parties means an applicant and any respondent who has filed an appearance.

respondent, in relation to an application, means a person who is required to be served with the application other than the proper officer of the Court below.

unrepresented person means an applicant or respondent to an application for leave or special leave to appeal who does not have legal representation.

2 Initiation of application

(1) An application shall be in the form numbered 61 in the First Schedule.

(2) An application shall be accompanied by the following documents:

(a) the judgment of the Court below;

(b) the reasons for the judgment below;

(i) a copy of the primary judgment or decision; and

(ii) the reasons (if any) of the primary court or decision‑maker that were before the Court below;

(d) in a criminal case:

(i) the indictment, the summing-up or charge; and

(ii) if the application relates to the sentence imposed on the applicant — the judge’s remarks on sentencing;

(e) such other documents, if any, as are necessary for the proper determination of the application.

3 Time for filing application

(1) An application shall be filed within 28 days after the judgment below was pronounced.

(2) Where an application is not filed within the time limited by
subrule (1), an order shall be sought in the application that compliance with subrule (1) be dispensed with.

(3) Subject to any other direction which may be given by the Registrar, the application shall be filed in the office of the Registry in the State or Territory in which the proceedings in the Court below were commenced.

4 Service

(1) A copy of the application and of the documents filed under subrule 2 (2) shall be served on each respondent within 7 days after filing the application.

(2) A copy of the application shall be served on the Registrar or other proper officer of the Court below within 7 days after filing the application.

(3) Service of any document under this rule may be effected:

(a) in the manner provided by these rules for the service of documents; or

(b) by leaving a copy at the address for service, if any, of the party to be served in the proceedings from which the application is brought.

5 Appearance

(1) A respondent opposing or intending to appear on the hearing of an application shall, within 14 days of service of the application, file an appearance and serve a copy on the applicant.

(2) A respondent’s appearance shall be in the form numbered 63 in the First Schedule.

6 Summary of argument — applicant

(1) The applicant shall, within 28 days after filing an application, file and serve a summary of argument and a draft notice of appeal on any party who has filed a notice of appearance.

(2) The applicant’s summary of argument shall be in the form numbered 62 in the First Schedule.

(3) The applicant’s draft notice of appeal shall be in the form numbered 65 in the First Schedule.

7 Summary of argument — respondent

(1) A respondent shall, within 21 days after service of the applicant’s summary of argument, file and serve a summary of argument.

(2) A respondent’s summary of argument shall be in the form numbered 62A in the First Schedule and shall state concisely the points in issue between the applicant and the respondent.

8 Summary of argument — general

(1) A summary of argument shall not exceed 10 pages in length, and shall be signed by a legal practitioner on behalf of the applicant or the respondent or, in the case of an unrepresented party, by the party personally.

(2) If it is proposed that the party will appear and present oral argument, the summary of argument shall so state.

(3) A supplementary summary of argument may be filed only with the leave of the Court or a Justice or the Registrar.

9 Reply

(1) An applicant may, within 7 days of service of a respondent’s summary of argument, file and serve a reply.

(2) A reply shall not exceed 5 pages in length, and shall be signed by a legal practitioner on behalf of the applicant or, in the case of an unrepresented applicant, by the applicant personally.

10 Application book

(1) For the purpose of an application, there shall be an application book.

(2) The contents of the application book shall be in accordance with an index settled by the Registrar after consultation with the parties.

(3) The index shall list such documents as will enable the Court to determine the application.

(4) The pages of the documents will be numbered consecutively and, in the case of any documents referred to by original page numbers in the summaries of argument, shall also bear those page numbers.

(5) The Registrar shall furnish a copy of the index to each party to the application.

(6) A copy of an index may be sent by post or by facsimile transmission.

(7) Unless the contrary be shown, the time at which the index so posted would be delivered in the ordinary course of post shall be deemed to be the time of receipt of the index or, if the index was transmitted by facsimile, the time of transmission shall be deemed to be the time of receipt of the index.

(8) The applicant shall prepare an application book in the like manner and form as is required in the case of an appeal book in rule 12 of Order 70.

(9) Within 30 days after the receipt of the index, or such other time as a Justice or the Registrar may order or direct, the applicant shall:

(a) prepare and file 7 copies of the application book; and

(b) supply 3 copies of the application book to each respondent.

(10) If, on the hearing of an application, a party intends to refer to a document which is not included in the application book, that party shall give notice to each other party not less than 3 working days before the date fixed for the hearing.

11 Time limitation on oral argument

(1) If an application is listed for hearing, a party who is present at the hearing, or a legal practitioner on behalf of a party, may appear and, subject to the next succeeding subrule, present oral argument.

(2) The time allocated to the parties for oral argument on the hearing of an application shall be as the Court orders or, in default of any order, shall be as follows:

(a) applicant — 20 minutes;

(b) respondent — 20 minutes;

provided that the Court may extend the time allocated to either party as the Court thinks fit.

12 Discontinuance of application

(1) An applicant may discontinue an application by filing a notice of discontinuance in the form numbered 64 in the First Schedule and by serving the notice on the respondent.

(2) Unless the Court or a Justice has otherwise ordered, an applicant who discontinues an application shall pay the respondent’s costs, in respect of the application, and such costs shall be taxed, unless agreed.

(3) Production of the notice of discontinuance initialled by the Registrar shall be sufficient authority for the taxation of costs.

(4) Subrules (2) and (3) apply only to applications for leave or special leave to appeal in civil matters in which there is no statutory prohibition against, or limitation of, an award of costs in favour of the respondent.

13 Deemed abandonment of application by delay

(1) Where an applicant fails to comply with subrules 4 (1), 4 (2), 6 (1) or 10 (9) within six months after filing the application, the application shall be deemed to be abandoned, unless the Court or a Justice or Registrar has otherwise ordered or directed.

(2) On a request by the respondent, a certificate of deemed abandonment shall be provided by the Registrar and thereupon subrules 12 (2), (3) and (4), with the necessary adaptation, shall apply.

14 Directions by Registrar

(1) At any time, after the filing of an application, the Registrar may give directions as to any matter which appears to the Registrar to be a convenient matter upon which to give directions.

(2) The directions referred to in subrule (1) may be given without a hearing provided that the Registrar may, at any time, issue a summons requiring the parties to an application to attend before the Registrar, and any party to an application may apply, at any time, for an appointment with the Registrar.

15 Determination of application on written material

(1) A party may, in his or her summary of argument, elect not to present oral argument.

(2) Where an application is listed for hearing and it appears to the Court or a Justice that a party is likely to be unable, or that it is likely to be impracticable for a party, to appear personally or by a legal representative to present oral argument, the Court may direct that the party’s case be considered on the basis of his or her summary of argument and any reply without oral argument from that party.

(3) Nothing in subrule (2) prevents any other party from presenting oral argument.

Order 70 Appeals

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1 Interpretation

In this Order, unless the contrary intention appears:

appeal means an appeal to the Court.

appellant in relation to an appeal, means the person appealing.

certificate to appeal means a certificate granted by the Full Court of the Family Court under Section 95 of the Family Law Act.

Court below means the Court pronouncing the judgment below.

judge includes a Justice of the High Court of Australia.

judgment includes an order, a conviction and a sentence.

judgment below, in relation to an appeal, means the judgment from which the appeal is brought.

Justice means a Justice of the High Court of Australia.

respondent, in relation to an appeal, means a person who has been served with a notice of appeal.

2 Institution of appeals

(1) An appeal shall be instituted by filing a notice of appeal.

(2) A notice of appeal shall:

(a) be in the form numbered 65 in the First Schedule;

(b) state the name of the Court below, or the judge pronouncing the judgment below, and the date when the judgment below was given;

(d) when leave or special leave has been granted on terms, set out the particulars of those terms;

(e) state whether the whole, or part only and what part, of the judgment below is appealed from;

(f) briefly, but specifically, set out the grounds of appeal which, where applicable, shall not depart from those set out in the draft notice of appeal furnished to the Court on the hearing of the application for special leave to appeal, unless the Court or a Justice otherwise orders.

(g) specify the nature of the order that the appellant contends should be made by the Court, including any special order as to costs.

3 Time for filing

A notice of appeal shall be filed within 21 days after:

(1) the grant of leave or special leave to appeal;

(2) the grant of a certificate to appeal; or

(3) the date of the judgment below;

whichever is the latest.

4 Place for Filing

A notice of appeal shall be filed in the office of the Registry in the State or Territory in which the proceedings in the Court below were commenced.

5 Service

(1) A notice of appeal shall be served on each person named as a respondent to the appeal within the time limited by rule 3.

(2) The Court or a Justice may direct that the notice of appeal be served on any other person who shall thereupon be added as a party to the appeal.

(3) Unless the appeal is from a Justice, a copy of the notice of appeal shall be lodged with the Prothonotary, the Registrar or other proper officer of the Court below within the time limited by rule 3.

(4) Service of a notice of appeal may be effected in any manner provided by these rules for the service of documents, or by leaving a copy at the address for service, if any, of the parties to be served in the proceedings from which the appeal is brought.

6 Cross-Appeal

(1) A respondent who desires to appeal from a part of the judgment below, or who seeks a variation of a part of that judgment, may, within 14 days after service upon him of the notice of appeal, file a notice of cross-appeal.

(2) A notice of cross-appeal shall:

(a) be in the form numbered 66 in the First Schedule;

(b) state what part of the judgment below the respondent cross‑appeals from, or contends, should be varied;

(d) specify the relief which the respondent seeks in lieu of the order of the Court below or the variation of that order which he seeks.

(3) Rules 13 and 15 of this Order apply with the necessary adaptation to a cross-appeal.

(4) A cross-appellant will be entitled to proceed with the cross-appeal only if special leave, which may be sought when the appeal is called on for hearing, is granted.

(5) It is not necessary to give notice of cross-appeal if a respondent contends that some matter of fact or law has been erroneously decided and does not seek a discharge or variation of a part of the judgment, decree, order or sentence actually pronounced or made, but he shall file and serve, within the time limited by subrule (1), a notice of such contention in the form numbered 67 in the First Schedule.

7 Security for Costs

(1) The Court or a Justice may, at any time on the application of a respondent to an appeal, order that the appellant give security, within a time to be limited by the order and in such amount as the Court or a Justice may fix, for the prosecution of the appeal without delay and for the payment of such costs as may be awarded by the Court to the respondent.

(2) Security may be given by payment into Court or in such manner as the Registrar may approve.

(3) The appellant shall, upon giving any security, forthwith serve upon the respondent written notice of the time when, and manner in which, the security was given.

(4) If security is not given in accordance with the order, the Court or a Justice may, on the application of any respondent, direct that the appeal be dismissed.

(5) In any case, the Court or a Justice may reduce or increase the amount of security, or otherwise vary or rescind an order already made relating to security.

8 Stay of Proceedings

(1) Unless the Court or a Justice otherwise orders, an appeal shall not operate as a stay of proceedings.

(2) In any case, where a stay of proceedings has been ordered, the Court or a Justice may make an order removing the stay, wholly or in part, and upon such terms and conditions as the Court or a Justice thinks fit.

9 Assembly of Documents

(1) The appellant shall, within 14 days of the institution of an appeal, lodge the following documents with the office of the Registry:

(a) a copy of the appeal book or documents before the Court or judge below; and

(b) a list of exhibits before the Court or judge below together with the exhibits.

(2) Where an exhibit cannot be so lodged, the appellant shall state the circumstances in writing and give such information as he can to enable the Registrar to cause the exhibit to be available to the Court.

10 Preparation of Index

(1) When the documents mentioned in the preceding rule have been received in the office of the Registry, the Registrar shall appoint a time, date and place for the settling of the index and notify the parties.

(2) The appellant shall, within 7 days of being notified of the appointment, prepare and file a draft index of the proposed contents of the appeal book in the office of the Registry.

(3) The appellant shall serve the draft index on the respondent a reasonable time before the appointment to settle the index.

11 Settling the Index

(1) The Registrar and the parties in settling the index shall have regard to the issues of fact and of law that appear from the grounds of appeal as set out in the notice of the appeal or cross appeal.

(2) The Registrar and the parties shall endeavour, in settling the index, to:

(a) exclude from the appeal book documents that are irrelevant or unnecessary; and

(b) reduce, as far as possible, the number and the length of documents to be included in the appeal book taking care to avoid the repetition of merely formal parts of documents and unnecessary duplication.

(3) Within 7 days after the index has been settled, the appellant shall file in the office of the Registry a clean copy of the index as settled.

(4) Where an appeal is pending in an office of the Registry, other than Canberra, Melbourne or Sydney, an index may, with the consent of all parties, be settled by the Registrar in the absence of the parties.

(5)

(a) Where the index has been settled in the absence of the parties, the Registrar shall serve a copy of the index on each party by post or facsimile transmission.

(b) Unless the contrary be shown, the time at which the index so posted would be delivered in the ordinary course of post shall be deemed to be the time of receipt of the index or, if the index was transmitted by facsimile, the time of transmission shall be deemed to be the time of receipt of the index.

(6) If any party is dissatisfied with the index as settled, the Registrar may, if he thinks it necessary, obtain the direction of a Justice.

12 Preparation and filing of appeal books

(1) The appeal book shall, unless a Justice or the Registrar otherwise orders or directs, be prepared by the appellant in accordance with this rule.

(2) The appeal book shall be printed or reproduced by a photocopying, roneograph, or some other multigraphing process which gives uniform copies of pages in a clear and legible type.

(3) The pages of the appeal book shall be numbered consecutively, the size of the pages of the book shall be International Size A4 and, where the book exceeds 300 pages, it shall be bound in separate volumes of not more than 250 pages.

(4) The contents of the appeal book shall be printed, or otherwise reproduced, upon one side of the paper with a 5 centimetre margin upon the left hand side of each page and every fifth line numbered in the margin. The book may be bound by means of either a flexibinding or spiral binding process.

(5) The appeal book shall have a title page setting out the full and correct title of the proceedings, including the title of the Court below, names of the solicitors for each party, the address for service of each party, and the telephone, telex, facsimile and reference number of each party.

(6) After the title page of the appeal book, there shall follow an index, consisting of a complete list of documents contained in the record before the Court, as settled under rule 11 of this Order, indicating, in the case of each document, whether its text is reproduced and included in the book or not, and, if it is reproduced and included, indicating the page of the book on which it appears.

(7) The index to an appeal book shall comply with the index prepared under rule 11 of this Order.

(8) The index shall give the date of each document and shall give, in the case of exhibits, the exhibit mark and, in the case of documents marked only for identification, the exhibit mark with the letters “m.f.i. ” following the exhibit mark.

(9) In the index, the exhibits shall be arranged in the order in which they have been lettered or numbered and there shall be a reference to the page of the appeal book on which the tendering of exhibits is recorded.

(10) Where the appeal book is bound in 2 or more volumes, each volume shall contain, at the beginning thereof, an index of the entire book, unless otherwise directed by the Registrar.

(11) The documents in an appeal book shall be arranged in the following order:

(a) process and pleadings;

(b) evidence, oral and affidavit;

(d) exhibits:

(i) Exhibits shall be arranged, not in the order in which they have been lettered or numbered as exhibits, but in chronological order according to the dates borne by the documents or, in the case of manifestly or admittedly misdated documents, their known dates.

(ii) If a document is undated it shall be placed in the sequence contended for by the appellant, but the appellant shall inform the respondent of the position, or order, proposed for the document and the respondent may require that a note “Date and order disputed” be inserted in the transcript at the head of the document.

(iii) If the exhibits include correspondence between, or among, two or more persons which should be read consecutively and not interspersed among other documents, the documents forming the correspondence may be arranged in chronological order and given a position together, at a convenient place, in relation to the other exhibits.

(iv) Interrogatories, answers and affidavits of documents shall not be copied, except so far as they were put in evidence.

(e) The reasons for judgment of the primary judge or Court.

(f) The formal judgment of the primary judge or Court.

(g) The notice of appeal, if any, from that judgment to a Court other than the Court.

(h) If the judgment below is that of a Court exercising appellate jurisdiction:

(i) The reasons for the judgment below.

(ii) The formal order of the Court below.

(i) Order of the Court granting leave or special leave to appeal or the certificate of appeal, if applicable.

(j) The notice of appeal to the Court.

(k) A certificate that the transcript has been examined and is correct, signed by the solicitors for the parties.

(12) The date and a short description of the nature of each document shall precede it, but formal headings should not be printed, or copied, and “jurats”, formal identification of exhibits, and the like, should be omitted.

(13) The appeal book shall be prepared and produced in a manner satisfactory to the Registrar.

(14) Unless a Justice or the Registrar otherwise orders or directs, the appellant shall file 10 copies of the appeal book in the office of the Registry and deliver three copies to each respondent within 21 days after the date on which the index is settled under rule 11 of this Order.

(15) One of the 10 copies of the appeal book, referred to in the last preceding subrule, shall be an examined copy with a certificate by the parties, or their solicitors, that it has been examined and is correct.

13 Discontinuance of Appeal

(1) An appellant may discontinue an appeal by filing a notice of discontinuance, in the form numbered 68 in the First Schedule, and by serving the notice on the respondent.

(2) Unless the Court or a Justice, or the Registrar, otherwise orders or directs, the appellant shall pay the respondent’s costs in respect of the appeal and such costs shall be taxed unless agreed.

(3) Production of the notice of discontinuance, initialled by the Registrar, shall be sufficient authority for the taxation of costs.

14 Directions by Registrar

(1) At any time, after the filing of the notice of appeal, the Registrar may give directions as to any matter which appears to the Registrar to be a convenient matter upon which to give directions.

(2) The directions referred to in subrule (1) may be given without a hearing provided that the Registrar may, at any time, issue a summons requiring the parties to attend before the Registrar, and any party may apply, at any time, for an appointment with the Registrar.

15 Dismissal for Want of Prosecution

(1) When an appellant has not done any act required to be done by or under these rules, or otherwise has not prosecuted the appeal with due diligence, the Court or a Justice may:

(a) order that the appeal shall be dismissed for want of prosecution;

(b) fix a time for the doing of an act and, at the same time, order that upon non-compliance the appeal shall stand dismissed for want of prosecution or, subsequently and in the event of non‑compliance, order that it be so dismissed; or

(2) The Court may make an order under subrule (1):

(a) on application by a respondent on notice; or

(b) of its own motion after notice has been given by the Registrar to the appellant.

(3) An order under paragraph 1 (b) may be varied at any time before the appeal stands dismissed for want of prosecution and, in special circumstances, may be varied or revoked after that time.

16 Ex parte Appeal

An appeal from the refusal by a Justice of an ex parte application shall be brought within the time and in the manner prescribed by this Order, except if there is no person interested in resisting the application, or affected by the relief sought, service of the notice of appeal and of other process or notices is not required.

Order 70A Nauru appeal rules

Do not delete : Division placeholder

1 Application of this Order

This Order applies to all proceedings in the Court under the Nauru (High Court Appeals) Act 1976.

2 Application of other Orders

Subject to this Order the provisions of the other Orders of these rules, other than Order 70 (except rule 23 thereof) apply so far as is practicable to proceedings to which this Order applies.

3 Legal aid

The Court or a Justice may at any time direct that legal aid be granted to an appellant or an applicant for leave to appeal in accordance with the provisions with respect to legal aid of the Appeals Act 1972 of the Republic of Nauru.

4 Mode of instituting appeals

(1) Every appeal shall be instituted by the filing of a notice of appeal in the manner prescribed in rules 5 and 6 of this Order.

(2) The notice of appeal shall state:

(a) whether the whole or part only, and what part, of the judgment is appealed from;

(b) briefly, but specifically, the grounds relied upon in support of the appeal; and

5 Filing and serving notice of appeal

(1) The original notice of appeal shall be filed in the Principal Registry.

(2) A copy of the notice of appeal shall be lodged forthwith in the Office of the Registrar of the Supreme Court of Nauru.

(3) The notice of appeal shall be served within twenty-one (21) days of the date of filing upon every party to the proceedings appealed from affected by the relief sought by the notice of appeal or interested in maintaining so much of the judgment as is appealed from.

(4) The Court or a Justice may direct that the notice of appeal be served on any other person.

(5) Service of a notice of appeal may be effected in the manner provided by these rules for the service of documents, or by leaving a copy at the address for service, if any, of the party to be served, in the proceedings from which the appeal is brought.

6 Time for filing notice of appeal

(1) The notice of appeal shall be filed:

(a) within thirty (30) days after:

(i) the date when the judgment appealed from was pronounced;

(ii) the date when leave to appeal was granted; or

(iii) any later date fixed for the purpose by the Supreme Court of Nauru or a Justice thereof; or

(b) within such further time as is allowed by a Justice upon application made to him by summons within the said time of thirty (30) days limited for filing a notice of appeal.

(2) Notwithstanding Order 60 rule 6 the summons mentioned in the last preceding subrule shall be issued within the period of thirty (30) days fixed by that subrule but the Full Court or a Justice for special reasons may upon application by motion grant an enlargement of time although the application for it is not made until after the expiration of the said period of thirty (30) days.

7 Appeal by leave: notice of appeal to state so

(1) If the appeal is brought by leave of the High Court, the notice of appeal shall so state, and a copy of the order giving leave to appeal shall be annexed to the copy lodged in the Supreme Court of Nauru and to every copy of the notice of appeal served.

Notice of appeal as of right to be supported by affidavit

(2) If the appeal is brought without leave, then, within the time limited for filing the notice of appeal, an affidavit shall be filed in the Principal Registry stating facts which show that an appeal lies without leave and a copy of the affidavit shall be served upon the parties upon whom the notice of appeal is to be served.

8 Objection to competency of appeal

(1) If a respondent objects to the competency of an appeal, he shall, within twenty-one (21) days after service upon him of the notice of appeal, file in the Principal Registry a notice of objection stating briefly the grounds of his objection, and serve upon the appellant a copy of the notice.

(2) If notice of objection has not been so given but nevertheless the appeal is afterwards dismissed by the Court as incompetent, the respondent shall not, unless upon special grounds the Court otherwise orders, receive any costs of the appeal, and the Court may order that he pay to the appellant any costs of the appeal proving useless or unnecessary.

(3) Within twenty-one (21) days after service upon him of the notice of objection, the appellant shall set down the objection for hearing and, on the day on which he sets it down, he shall give notice of the setting down to the opposite party.

(4) If the appellant fails to set down the objection for hearing as required by the last preceding subrule, his appeal shall be deemed to be abandoned as on the twenty-second day after service of the notice of objection, and the respondent may thereupon tax his costs of the appeal and they shall be paid by the appellant.

(5) The appellant may set down the objection for hearing at his discretion before a Justice or a Full Court, and, in the latter case he may also file in the Principal Registry a notice that he intends at or after the hearing of the objection to apply for leave to appeal.

(6) A copy of a notice filed under the last preceding subrule shall be served on the respondent with the notice of setting down.

(7) An objection to the competency of an appeal shall be set down for hearing at the sittings of the Court appointed to be held at the Principal Registry next after the given setting down.

(8) Upon the hearing of the objection, the burden of establishing the competency of the appeal is upon the appellant.

(9) Any party may file affidavits to be read on the hearing of the objection.

(10) When an objection to the competency of an appeal is disallowed, the Court may by order fix the time and place for hearing the appeal.

(11) Unless an order is made under the last preceding subrule, the appellant upon disallowance of the objection shall proceed in accordance with the provisions of rule 14 et seq. and the date on which the objection to competency is disallowed shall be substituted for the date on which the copy notice of appeal was lodged in the Office of the Registrar of the Supreme Court of Nauru.

9 Cross-appeal

(1) A respondent who desires to appeal from a part of the judgment from which the appellant has appealed, or to seek a variation of a part of the judgment, need not institute a substantive appeal, but he shall, within thirty (30) days after the service upon him of the notice of appeal, or within such further or other time as the Court or a Justice, pursuant to Order 60 rule 6 of these rules, may fix, file in the Principal Registry a notice of cross-appeal and serve a copy of the notice upon the appellant and any other person affected by the relief which he seeks.

(2) The notice of cross-appeal shall state from what part of the judgment the respondent cross-appeals and shall state briefly, but specifically, the grounds of the cross-appeal and:

(a) the relief which he seeks in lieu of the order cross-appealed from; or

(b) the variation of that order which he seeks.

(3) It is not necessary to give notice of cross-appeal if a respondent proposes to contend that some matter of fact or law has been erroneously decided against him but does not seek a discharge or variation of a part of the judgment, decree, order or sentence actually pronounced or made.

10 Application for leave to appeal

(1) Subject to the provisions of this rule an application for leave to appeal may be made either ex parte or upon notice.

Ex parte application

(2) If leave to appeal is sought ex parte, then subject to Order 60 rule 6 the application shall be made not later than the first motion day at the sittings of the Court at the Principal Registry occurring after two months from the date when the judgment was pronounced from which it is sought to appeal.

Application on notice

(3) The application shall be made upon notice:

(a) if the Court or a Justice so directs; or

(b) if a party interested to maintain the judgment from which it is sought to appeal gives notice in writing to the applicant that he desires to be heard in opposition to, or upon a question arising out of, the application for leave to appeal; or

(c) if the application is by a prisoner or accused person or by the Director of Public Prosecutions of the Republic of Nauru for leave to appeal from a judgment, order or sentence pronounced or made by the Supreme Court of Nauru in the exercise of its jurisdiction by way of criminal appeal.

(4) (a) Notice of an application for leave to appeal may be for any day fixed for the hearing of motions at the sittings of the Court at the Principal Registry but the Court or a Justice may expedite the hearing of the application or fix any other time or place.

(b) Notice of an application for leave to appeal shall be filed in the Principal Registry and a copy shall be served within twenty-one (21) days of the date of filing upon every party to the proceedings appealed from affected by the relief sought in the proposed appeal or interested in maintaining so much of the judgment as it is sought to appeal from. In the case of an application pursuant to subrule (3) (c), the notice shall be served upon the prisoner or accused person or the Director of Public Prosecutions of the Republic of Nauru as the case may be.

(c) Subject to Order 60, rules 4 and 6, notice of an application for leave to appeal shall be filed within thirty (30) days after the date when the judgment was pronounced from which it is sought to appeal or, if the application is made pursuant to the direction of the Court under subrule (3) (a) or pursuant to notice given by a party under subrule (3) (b), within thirty (30) days after the date when the direction or the notice was given.

Affidavit in support of application

(5) An application for leave to appeal whether made ex parte or by notice of motion shall be made by or be supported by an affidavit stating the nature of the case, the questions involved and the reasons why the leave should be given.

Application by written case or by counsel

(6) An applicant for leave to appeal may present his case and his argument to the Court in writing pursuant to rule 12 if he so desires, and, if he does not do so, his application shall be made to the Court by counsel.

11 Title of proceedings

(1) The documents in an application for leave to appeal, or for an extension of time under rules 5 and 6 of this Order for filing or serving a notice of appeal, shall be entitled “In the High Court of Australia”, “Principal Registry”, and in the matter of the proceedings, which shall be described as pending in the Supreme Court of Nauru.

(2) A notice of appeal and all subsequent proceedings in an appeal shall be entitled “In the High Court of Australia”, “Principal Registry”, “On appeal from the Supreme Court of Nauru” and shall also be entitled as between the party appellant and the party respondent.

12 Use of written case on application for leave to appeal

(1) Within fourteen (14) days of the date of service of the notice of application for leave to appeal an applicant who desires to present his case and argument in writing shall give notice in writing to the other parties that he proposes to prepare and file a written case.

(2) Each party shall thereupon, unless the Court or a Justice otherwise directs, prepare a written case consisting of paragraphs consecutively numbered and stating as concisely as possible the circumstances out of which the appeal arises, the contentions to be urged by him and the reasons relied upon.

(3) So far as practicable, in a written case references to the portions of the transcript relied upon shall be given by page and line and extracts shall not be set out.

(4) Not later than twenty-eight (28) days after the receipt of the notice, each party shall lodge in the Principal Registry four (4) copies of his case for the use of the Justices upon the hearing of the appeal or application for leave to appeal and file in the Principal Registry one (1) copy of his case.

(5) The written case for the applicant for leave to appeal shall be in a cover coloured blue and for the respondent in a cover coloured red.

(6) When a party has lodged his case, he shall on the day of lodging it give written notice to the other party that he has done so.

(7) When all parties have lodged their cases, they shall exchange copies with one another.

(8) Each party is entitled to three (3) copies of the other’s case.

(9) Where the parties present their cases in writing, there shall be no appearance by or on behalf of any party unless the Court or a Justice otherwise directs.

13 Exhibits

(1) When, in the Supreme Court of Nauru, a judgment is given from which an appeal may be brought to the High Court, the officer of that Court who has the custody of exhibits put in evidence or documents marked for identification shall, subject to the directions of that Court:

(a) retain them for thirty (30) days from the giving of the judgment; and

(b) if, before the expiration of that thirty (30) days, application for leave or special leave to appeal to the High Court from the judgment is made, retain them until thirty (30) days from the date when the leave is given, has elapsed.

(2) Upon an appeal to the High Court being instituted, a list of the exhibits put in evidence and of documents marked for identification shall be made out and certified by the officer of the Court who has custody of those exhibits, or by some other proper officer of that Court, and the list and the exhibits and documents shall be transmitted to the Principal Registry.

(3) If for any reason an exhibit cannot be so delivered or transmitted, the officer shall, in his certificate, state the circumstances and give such information as he can to enable the Principal Registrar to cause the exhibit or document to be available to the High Court.

14 Transmission of documents to Principal Registry

Within twenty-one (21) days of the date of the lodgment of the copy of the notice of appeal in the Office of the Registrar of the Supreme Court of Nauru the Registrar of the Supreme Court of Nauru shall transmit to the Principal Registry:

(a) a certified copy of the reasons for the judgment appealed from;

(b) a certified list of and certified copies of:

(i) the pleadings; and

(ii) the other documents which were before the Court; and

(c) a copy of the transcript of the oral evidence given before the Court or a copy of the notes of evidence taken by or for the Judge;

in addition to the documents to which rule 13 of this Order applies.

15 Preparation of index

(1) When the documents mentioned in the preceding rule have been received in the Principal Registry the Principal Registrar shall notify the appellant.

(2) The appellant shall within fourteen (14) days of being so notified lodge in the Principal Registry a draft index of the contents which shall constitute the appeal book before the High Court and the Principal Registrar shall appoint a time, date and place for settling the index.

(3) The Registrar may vary the index as he thinks proper and if any party is dissatisfied with the index as settled the Principal Registrar may if he thinks it necessary obtain the direction of the Chief Justice or if the Chief Justice is unavailable of the senior Justice who is available.

(4) Seven (7) days’ notice of the time appointed for the settlement of the index, together with a copy of the draft index, shall be given to the respondent or to his solicitor.

(5) Within seven (7) days after the index has been settled the appellant shall file in the Principal Registry a clean copy of the index as settled.

16 Preparation of appeal book

The appeal book for use upon the hearing of an appeal shall, unless the Court or a Justice otherwise orders, be prepared in accordance with the provisions of Order 70 rule 23 so far as they are applicable.

17 Filing and serving appeal books

(1) Within twenty-eight (28) days of filing the settled index the appellant shall file in the Principal Registry one copy of the appeal book and shall lodge four (4) copies for the use of the Justices upon the hearing of the appeal.

(2) The appellant shall serve upon each of the respondents separately represented three (3) copies of the appeal book.

18 Setting down appeal

(1) At the time of filing the appeal book the appeal shall be set down, unless it is otherwise ordered by the Court or a Justice, for hearing at the first sittings of the Court appointed to be held at the Principal Registry.

(2) An appeal shall be set down at least twenty-one (21) days before the day appointed for the commencement of the sittings.

(3) On the day on which an appeal is set down for hearing, notice of the setting down shall be served upon or be forwarded by prepaid post by the appellant to the respondent.

(4) If an application in writing signed by all the parties or their solicitors is filed in the Principal Registry, the Principal Registrar may, subject to any general or special direction given by the Chief Justice, cause the appeal to be set down for hearing at some other Registry specified in the application and thereupon the appeal shall be set down for hearing and heard there unless the Court or a Justice otherwise orders.

(5) The Court or a Justice may direct that an appeal shall be heard at a Registry other than that for which the appeal has been set down.

19 Use of written case on appeal

(1) Not less than twenty-one (21) days before the commencement of the sittings at which the appeal is set down for hearing a party to an appeal may give notice in writing to the other parties that he proposes to prepare and file a written case and thereupon rules 12 (2) to 12 (9) inclusive of this Order shall apply mutatis mutandis.

(2) If a party receiving notice under this rule desires to object to the use of written cases, he may do so within seven (7) days, by filing in the Principal Registry a notice to that effect and serving a copy of the notice upon the other parties to the appeal.

(3) Upon the filing of a notice under the last preceding subrule the Principal Registrar shall forthwith obtain the direction of the Chief Justice or if the Chief Justice is unavailable of the senior Justice who is available, and communicate it to the parties. The Justice may after hearing the party giving the notice direct that party to prepare and file a written case within such time as the Justice may fix.

(4) A party upon whom a written case is served may within fourteen (14) days file and serve a reply to any of the submissions made in the written case.

(5) Where the parties present their cases in writing, there shall be no appearance of any of the parties before the Court unless the Court or a Justice otherwise directs.

20 Dismissal for want of prosecution

Upon the non-compliance with any time fixed for the doing of an act required to be done by an appellant under this Order the Court may order that his appeal shall stand dismissed for want of prosecution, and may make such order as to the costs of the appeal in that event as appears just.

21 Adding parties

The Court or a Justice may order that any person be added as a party to an appeal or that the proceedings be amended, and may impose such conditions as appear just and give all consequential directions.

Order 71 Costs

Do not delete : Division placeholder

1 Costs to be in the discretion of the Court

(1) Subject to the provisions of any law of the Commonwealth and to these rules, the costs of and incidental to all proceedings in the Court and in Chambers, including the administration of estates and trusts, are in the discretion of the Court or a Justice.

(2) This rule does not deprive an executor, administrator, trustee or mortgagee who has not unreasonably commenced or carried on or resisted any proceedings of a 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.

2 Costs of issues

(1) A judgment or order giving a party costs, except so far as those costs have been occasioned or incurred by, or relate to, some particular issue or part of the proceeding, shall be read and construed as excluding only the amount by which the costs have been increased by that issue or that proceeding.

(2) If the whole costs of the proceeding are not intended to be given to a party, the Court or Justice may, by the judgment or order, direct taxation of the whole costs and payment of such proportion of those costs as the Court or Justice determines.

3 Costs of cause removed from inferior court

If a cause or part of a cause is removed from a court having jurisdiction in the cause into the High Court, the costs in the court below shall be costs in the cause.

4 Personal liability of solicitor to pay costs

Where a trial or hearing cannot conveniently proceed by reason of the solicitor for a party having:

(a) neglected to attend personally or by some proper person on his behalf; or

(b) omitted to deliver a document necessary for the use of the Court or Justice and which, according to the practice of the Court or these rules, ought to have been delivered;

the solicitor shall personally pay to all or any of the parties such costs as the Court or Justice thinks fit to award.

5 Security for costs

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

6 Security for costs by plaintiff temporarily within Commonwealth

(1) A plaintiff ordinarily resident outside the Commonwealth may be ordered to give security for costs notwithstanding that he may be temporarily resident within the Commonwealth.

(2) A defendant setting up a counter-claim not arising out of the plaintiff’s claim may be ordered to give security for costs in a case in which a plaintiff making the like claim might be so ordered.

7 Action founded on judgment or bill of exchange

When, in an action brought by a person resident outside the Commonwealth, the plaintiff’s claim is founded on a judgment or order, or on a bill of exchange or other negotiable instrument, security for costs shall not ordinarily be required, but the Court or a Justice may in any such case order security to be given if it appears to the Court or Justice that such an order should be made.

8 Bond as security for costs

Where a bond is to be given as security for costs, it shall, unless the Court or a Justice otherwise directs, be given to an officer of the Court.

9 Fractional or gross sum for costs

(1) When the Court or a Justice awards costs to a party, the Court or Justice may, by the order:

(a) direct taxation of the costs of the party;

(b) direct payment of a proportion of the taxed costs, payment of the taxed costs less a specified sum to be deducted from them or payment of a sum in gross in lieu of taxed costs; and

(2) The Court or Justice may direct payment of a sum in gross in lieu of taxed costs notwithstanding that that sum is greater or smaller than the amount of taxed costs.

10 Solicitor to repay costs due to his delay or misconduct

The Court or a Justice may, after reference to and report by the taxing officer, order a solicitor to repay to his client costs ordered to be paid by the client to another party where those costs have been incurred by that party in consequence of the delay or misconduct of the solicitor.

11 Costs of solicitor-guardians

(1) Where the Court or a Justice appoints a solicitor or public trustee to be guardian ad litem of an infant or person of unsound mind in a proceeding, the Court or Justice may direct that the costs to be incurred in the performance of the duties of that office shall be borne and paid:

(a) by the parties, or one or more of the parties, to the proceeding in which the appointment is made; or

(b) out of any fund in Court in which the infant or person of unsound mind may be interested;

and may give such directions for the repayment or allowance of the costs as the justice and circumstances of the case require.

(2) When a solicitor acts as guardian of a person of unsound mind without an order of the Court or a Justice appointing him as guardian, the costs incurred in the performance of the duties of that office are in the discretion of the Court or Justice.

12 Set-off for damages or costs

(1) A set-off for damages or costs between parties may be allowed by the Court or a Justice and, as to costs, by the taxing officer, notwithstanding the solicitor’s lien for costs in the particular proceedings in which the set-off is sought.

(2) A set-off for damages or costs between parties may be allowed by the Court or a Justice in cases where the set-off arises as the result of different proceedings either notwithstanding or subject to the liens of the respective solicitors of the parties for their costs.

13 Costs out of estate

The costs occasioned by an unsuccessful claim or unsuccessful resistance to a claim to any property shall not be paid out of an estate or fund unless the Court or a Justice so directs.

14 Costs as regards particular shares

The costs of inquiries to ascertain the person entitled to a legacy, money or share, or otherwise incurred in relation to the inquiries, shall be paid out of the legacy, money or share, unless the Court or a Justice otherwise directs.

15 Distribution not to be delayed by difficulties as to some shares

(1) Where 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.

(2) Such order may be made for ascertaining and payment of the costs incurred down to and including the payment as the Court or Justice thinks reasonable.

16 Costs in actions ordered to be paid out of estate

In a proceeding in which it is ordered that any costs shall be paid out of an estate or fund, the Justice making the order may direct out of what portion or portions of the estate or fund the costs shall be paid, and the costs shall be paid accordingly.

17 Costs as between solicitor and client

(1) The Court or a Justice may, where costs are ordered to be paid to a party out of an estate or fund, direct that the costs shall be allowed and taxed as between solicitor and client.

(2) In the absence of a direction under the last preceding subrule, costs ordered to be paid out of an estate or fund shall be taxed as between party and party.

18 Receiver’s costs

The costs of a receiver appointed by the Court or a Justice may be taxed by the taxing officer on the application of the receiver or a party.

19 Registrar to tax costs

(1) Unless the Court or a Justice in a particular case otherwise directs, bills of costs and fees which:

(a) are payable to barristers and solicitors entitled or admitted to practise in the Court in respect of business transacted by them in the Court or its offices; and

(b) have been directed by a judgment or order to be taxed;

shall be taxed, allowed and certified by a Registrar who, in these rules, is referred to as the taxing officer .

(2) The taxing officer shall appoint a time for taxation on the application of the party claiming taxation.

(3) A taxing officer may, of his own motion, refer any question arising in a taxation to a Justice for a direction.

20 Notice of taxing costs and copy bill

(1) Two days’ notice of the time appointed for the taxation of costs, together with a copy of the bill of costs and affidavit of increase, if any, shall be given by the party, or the solicitor of the party, whose costs are to be taxed to the other party or his solicitor, except in cases where that party has not entered an appearance.

(2) The taxing officer may in cases of urgency direct that one day’s notice only shall be given.

21 No affidavit of increase

An affidavit of increase shall not be prepared unless ordered by the taxing officer.

22 Review of taxation

Every taxation of costs and every decision of a taxing officer shall be subject to review by a Justice.

23 Scale of costs

Except when otherwise ordered, in all proceedings commenced or instituted after, or pending at the time when, these rules come into operation, solicitors are, subject to these rules, entitled to charge and be allowed the fees set forth in the Second Schedule in respect of the matters referred to in that Schedule, and higher fees shall not be allowed in any case except such as are by this Order otherwise provided for.

24 Taxing officers to assist each other

The taxing officers shall be respectively assistant to each other, and, in the discharge of their duties and for the proper despatch of the business of their respective offices, a taxing officer may tax, or assist in the taxation, of a bill of costs which has been referred to another taxing officer for taxation and for ascertaining what is due in respect of the costs, and in that case shall certify accordingly.

25 Costs of interlocutory proceedings

All costs to which a party is entitled under an interlocutory order made in a proceeding shall be included in the final judgment when signed or entered, unless the costs have then been paid.

26 Costs of incidental applications

(1) Unless the Court or a Justice otherwise orders, the costs of a motion or application in a cause shall be deemed to be part of the costs of the cause of the party in whose favour the motion or application is determined unless the motion or application is unopposed.

(2) When the motion or application is unopposed, the costs of both parties shall be deemed to be part of their costs of the cause, unless the Court or a Justice otherwise orders.

27 Costs of motion not disposed of

When a motion, application or other proceeding is ordered to stand over to the trial and no order is made at the trial as to the costs of the motion, application or proceeding, the costs of both parties of the motion, application or proceeding shall be deemed to be part of their costs of the cause.

28 Costs reserved

When the costs of a motion, application or other proceeding are reserved by the Court or Justice, costs of the motion, application or proceeding shall not be allowed to a party without an order of the Court or Justice.

29 Taxing officer may give notice to parties to carry in their bills

When an order directing the taxation of any costs in a proceeding has been made, the taxing officer may of his own motion give notice to a party to carry in his bills of costs for taxation, and may limit a time for that purpose.

30 Notice of adjournment of taxation

The taxation shall, if possible, be continued without interruption till completed, but, if it is adjourned for any reason, notice of the adjournment shall be sent by post to a solicitor or person not present at the time of the adjournment whose attendance the taxing officer may desire at the next appointment.

31 Bill to be filed before taxation

A bill of costs shall be filed before it is taxed.

32 Neglect etc of solicitor

A 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 73 and 104 of this Order.

33 Form of bills of costs

In a bill of costs the professional charges shall be entered in a separate column from the disbursements, and every column shall be cast before the bill is filed.

34 Where taxation as between party and party and also as between solicitor and client

Where costs are ordered to be taxed as between party and party, and also as between solicitor and client, all the costs shall be submitted for taxation in one bill with the additional costs as between solicitor and client shown in a separate column.

35 Matters to be shown

(1) Subject to the last two preceding rules, bills of costs for taxation shall be prepared so as to shew clearly:

(a) dates (specifying years, months and days);

(b) items consecutively numbered;

(d) disbursements; and

(e) professional charges.

(2) A bill of costs shall, at the end of the bill, contain a summary of the charges and disbursements showing the totals of each column of the charges and disbursements.

(3) When several items of the same date are set out consecutively, it is only necessary to show the date in the case of the first item.

36 Amendment of bill

An addition or alteration shall not be made in a bill of costs after it is filed for taxation except by permission or direction of the taxing officer.

37 Copies of bills

A copy of a bill of costs shall be made page for page, so as to correspond with the bill left for taxation.

38 Previous costs

The taxing officer, in taxing any subsequent costs in the same proceeding, shall have regard to the preceding bills so as to ascertain that none of the items charged were included in a previous bill.

39 Costs when further proceedings become unnecessary

When for any reason the further prosecution of a proceeding becomes unnecessary, except for the purpose of determining by whom the costs of the proceeding should be paid, any party may apply to the Court or a Justice to determine that question, and thereupon the Court or Justice may make such order as is just.

40 Costs of excessive claims in Admiralty actions

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

41 Tender improperly rejected in Admiralty action

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 costs incurred after the tender is made.

42 Costs in small Admiralty cases

(1) When the sum in dispute in an Admiralty action does not exceed Two hundred dollars, or the value of the res does not exceed Four hundred dollars, one half only of the ordinary costs shall be allowed.

(2) In this rule, when costs are awarded to a plaintiff, the words “sum in dispute” mean 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, they mean the sum claimed from him, in addition to the sum, if any, recovered by him.

43 Allowances for pleadings etc in discretion of taxing officer

In the case of:

(a) writs of summons requiring special endorsement;

(b) special cases;

(d) pleadings;

(e) affidavits in answer to interrogatories;

(f) affidavits of documents and other special affidavits (including affidavits requiring special or unusual care in their preparation or consideration); and

(g) admissions under Order 33, rule 3;

the taxing officer may, in lieu of the allowances for instructions and preparing or drawing, and for attendances, make such allowance for work, labour and expenses in or about the preparation of the documents as in his discretion he thinks proper.

44 Drawing pleadings

The fees allowed for drawing a pleading or other document shall include a copy made for the use of the solicitor, agent or client or for counsel to settle.

45 Instructions to sue or defend etc

In the case of instructions to sue or defend or the preparation of briefs, if the taxing officer on special grounds considers the fee provided in the scale inadequate, he may make such further allowance as he, in his discretion, considers reasonable.

46 Copies with briefs

The taxing officer shall allow only the copying of such documents, or parts of documents, accompanying briefs, as he considers necessary for the instruction of counsel or for use at the trial or hearing.

47 Swearing affidavits

In the case of affidavits, 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 in his discretion thinks fit.

48 Drawing affidavits and attending deponent

The allowances for instructions for and drawing an affidavit in answer to interrogatories, an affidavit of documents or any other special affidavit (including an affidavit requiring special or unusual care in its preparation or consideration), and for attending the deponent to be sworn, include all attendances on the deponent to settle and read over.

49 Delivery of pleading etc

Fees for the delivery of pleadings, services and notices are not to be allowed more than once when the same solicitor acts for both parties, unless he so acts for the purpose of making an affidavit of service.

50 Expenses incurred on several writs etc

When two or more writs, summonses, orders or notices in the same proceeding can be served at the same time on a party, they shall be so served, and, in that case, fees and mileage shall be allowed for the service of one only.

51 Perusals

The fees for perusals do not apply where the same solicitor acts for both parties.

52 Separate answers or proceedings by the same solicitor

(1) Where the same solicitor is employed for two or more defendants and separate pleadings are delivered or other proceedings had by or for two or more of those defendants separately, the taxing officer shall consider, in the taxation of the solicitor’s bill of costs, either between party and party or between solicitor and client, whether the separate pleadings or other proceedings were necessary or proper.

(2) If the taxing officer is of opinion that a part of the costs occasioned by the separate pleadings or other proceedings has been unnecessarily or improperly incurred, that part shall be disallowed.

53 Costs of joint trustees not joining in defence

In taxing the costs as between party and party of joint executors or trustees who defend separately, the taxing officer, unless otherwise ordered by the Court or a Justice, shall allow one set of costs only for those defendants, and those costs shall be apportioned among them as the taxing officer deems just.

54 Evidence

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.

55 Agency correspondence

(1) In the case of agency correspondence, if it is shown to the satisfaction of the taxing officer that the correspondence has been special and extensive, he may make such special allowance in respect of the correspondence as in his discretion he thinks proper.

(2) In agency matters an allowance shall be made for the necessary expense of postage, carriage and transmission of documents.

56 Drawing and settling judgments or orders

(1) The taxing officer may make such allowances in respect of the preparation of the draft judgment or order referred to in Order 44, rule 4, and for any attendance upon settling it, as he considers reasonable.

(2) The taxing officer may, in respect of the attendance of solicitors upon Registrars for the purpose of settling the terms of and passing judgments or orders in such cases as are provided for by Order 44, rule 17, make such special allowances as he considers reasonable.

57 Special allowance for attendance at Chambers in cases of difficulty etc

In the case of attendance at a Justice’s Chambers or before a Registrar, where, from the length of the attendance or from the difficulty of the case, the Justice or Registrar thinks that the fees prescribed in the Second Schedule are an insufficient remuneration for the services performed, or, where the preparation of a case has required skill and labour in respect of which no fee has been prescribed, the Justice or Registrar may allow such special fee as in his discretion he thinks fit.

58 Non-attendance or neglect of parties on proceedings in Chambers

(1) In the case of attendance at a Justice’s Chambers or before a Registrar, where, by reason of the non-attendance of a party and it not being considered expedient to proceed ex parte, or by reason of the neglect of a party in not being prepared with any proper evidence or necessary document, the attendance is adjourned without any useful progress being made, the Justice may order such an amount of costs, if any, as he thinks reasonable to be paid to the party attending by the party so absent or neglectful, or by his solicitor personally.

(2) The party so absent or neglectful shall not be allowed a fee in respect of the attendance as against another party or out of an estate or fund in which another party is interested.

59 Folios

A folio comprises seventy-two words, and a figure shall be counted as one word.

60 Fees to counsel for settling pleadings, affidavits etc and advising thereon

(1) Such costs of procuring the advice of counsel on the pleadings, evidence and proceedings as the taxing officer in his discretion thinks just and reasonable, and of procuring counsel to settle such writs, pleadings, interrogatories, special affidavits (including affidavits requiring special or unusual care in their preparation or consideration) and notices of appeal as the taxing officer in his discretion thinks proper to be settled by counsel, shall be allowed.

(2) In the case of affidavits, a separate fee shall not be allowed for each affidavit but one fee shall be allowed for all the affidavits proper to be so settled which were or ought to have been filed at the same time.

61 Solicitor counsel preparing pleading etc

When a practitioner acts in the capacities of both barrister and solicitor, or in the capacity of counsel, instructed by his partner acting as solicitor, the taxing officer shall (in cases where a fee would have been allowed to independent counsel) allow to the practitioner in respect of:

(a) the drawing or settling of any writ, pleading, interrogatories, special affidavit (including an affidavit requiring special or unusual care in its preparation or consideration) or notice of appeal; or

(b) the appearance of the practitioner as counsel at a trial or hearing;

such sum as a counsel’s fee as the taxing officer in his discretion thinks just and reasonable having regard to the fact that the practitioner is acting as both barrister and solicitor, or as counsel instructed by his partner acting as solicitor, as the case may be.

62 Counsel at Chambers

(1) Where counsel attends at Justice’s Chambers or before a Registrar, costs of the attendance shall not be allowed unless the Justice or Registrar certifies it to be a proper case for counsel to attend.

(2) The Justice or Registrar may also certify for counsel in cases where the parties, or any of them, are represented by their solicitor, and not by separate counsel, if the Justice or Registrar thinks the case was a proper one for counsel to attend.

63 Inspection of documents

(1) The costs of inspection of documents is in the discretion of the taxing officer, but an allowance shall not 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.

(2) A taxing officer may from time to time make an interim certificate or allocatur in a taxation for a portion or portions of the taxed costs directed to be taxed without waiting until a certificate for the full amount can be made.

64 Tender for respondent’s costs on service of petition etc

(1) Where a petition, notice of motion, originating summons or summons is served, and notice, accompanied by a tender of costs for perusing the petition, notice, originating summons or summons, is given to the party served that in case of his appearance upon the hearing of the petition, notice, originating summons or summons his costs will be objected to, the amount to be tendered shall be Six dollars thirty cents.

(2) The party making the payment shall be allowed it in his costs if the service was proper, but not otherwise.

(3) This rule is without prejudice to the rights of any party to costs, or to object to costs, where a tender of costs for perusing is not made, or where the Court or a Justice considers the party entitled, notwithstanding the notice or tender, to appear upon the hearing.

(4) In any other case in which a solicitor of a party served necessarily or properly peruses such a petition, notice of motion, originating summons or summons, without appearing on it, he shall be allowed a fee not exceeding Six dollars thirty cents.

65 Disallowance of costs of improper, vexatious or unnecessary matter in documents or proceedings

(1) The Court or Justice may, at a trial or hearing or upon an application in Court or at Chambers, and whether or not objection is taken:

(a) direct that any costs which have been improperly, unreasonably or negligently incurred be disallowed; or

(b) direct the taxing officer to examine the costs incurred, and to disallow such costs as he shall find to have been improperly, unreasonably or negligently incurred.

(2) A party whose costs are so disallowed shall pay to the other parties the costs incurred by those parties in relation to the proceeding in respect of which his costs have been disallowed.

(3) Where the question of costs having been improperly, unreasonably or negligently incurred has not been raised before and dealt with by the Court or Justice, it is the duty of the taxing officer to look into that question (including the evidence, although it may be entered as read in any judgment, decree or order), and thereupon the same consequences shall ensue as if he had been specially directed under paragraph (b) of subrule (1) of this rule to examine the costs incurred, and to disallow such costs as he finds to have been improperly, unreasonably or negligently incurred.

66 Set-off of costs

Where, under these rules or by the order or direction of the Court or a Justice, a party entitled to receive costs is liable to pay costs to another party, the taxing officer may tax the costs which that party is liable to pay and:

(a) adjust the costs by way of deduction or set-off;

(b) delay the allowance of the costs the party is entitled to receive until he has paid or tendered the costs he is liable to pay; or

67 Costs of prolixity in Chambers

Where a question as to any costs is dealt with by a Justice in Chambers, the associate shall make a note thereof for the information of the taxing officer.

68 Unnecessary appearance in Court or at Chambers

Where a party appears upon a proceeding in Court, at Chambers or before a Registrar, 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 appearance unless the Court, Justice or Registrar expressly directs the costs to be allowed.

69 Costs of applications to extend time

(1) Costs of an application for consent to an extension of time for taking any proceedings are in the discretion of the taxing officer.

(2) The taxing officer shall not allow the costs of more than one extension of time unless he is satisfied that the extension was necessary and could not, with due diligence, have been avoided.

(3) The costs of a summons to extend time shall not be allowed unless the party taking out the summons has previously applied to the opposite party to consent to a sufficient extension of time and the opposite party has not consented, or the taxing officer considers there was a good reason for not making the application.

70 Powers of taxing officer

The taxing officer may, for the purpose of taxation of costs:

(a) summon and examine witnesses either orally or upon affidavit;

(b) administer oaths;

(d) issue subpoenas;

(e) make separate or interim certificates or allocaturs;

(f) require a party to be represented by a separate solicitor; and

(g) do such other acts and direct or take all such other steps as are directed by these rules or by the Court or a Justice.

71 Taxing officer to assist when account comprises bill of costs

(1) Where an account consists in part of a bill of costs, the Court or Justice may direct the taxing officer to assist in settling the costs, not being the ordinary costs of passing the account of a receiver.

(2) The taxing officer, on receiving the direction, shall proceed to tax the costs, and shall have the same powers, and the same fees shall be payable in respect of the taxation, as if those costs had been referred to the taxing officer by an order.

(3) The taxing officer shall report and certify the costs to the Court or Justice by whose direction the costs were taxed.

72 Attendance of parties on taxation

The taxing officer may, on the taxation of costs to be borne by a fund or estate:

(a) arrange and direct what parties are to attend before him and what parties are to be served with appointments to tax and with copies of bills of costs; and

(b) disallow the costs of a party whose attendance the taxing officer in his discretion considers unnecessary.

73 Refusal or neglect to procure taxation

When a party entitled to costs refuses or neglects to bring in his costs for taxation or to procure them to be taxed, and thereby prejudices another party, the taxing officer may, so as to prevent another party being prejudiced by the refusal or neglect:

(a) certify the costs of the other parties and the refusal or neglect; or

(b) allow a nominal or other sum to the party refusing or neglecting for his costs.

74 Costs to be allowed on taxation

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 maintaining or defending the rights of a party, but, except as against the party who incurred them, costs shall not be allowed which appear to the taxing officer to have been incurred or increased:

(a) through over-caution, negligence or mistake;

(b) by payment of special fees to counsel or special charges or expenses to witnesses or other persons; or

75 Disbursements in solicitors’ bills

(1) Subject to the next succeeding subrule, in taxation of a solicitor’s fees, charges and disbursements, a disbursement shall not be allowed which has not been actually made before the delivery of the bill of costs.

(2) Where the bill expressly states that disbursements have not been made before delivery of the bill, and sets out the unpaid items of disbursements under a separate heading in the bill, they may be allowed by the taxing officer if they have been actually paid before the commencement of the taxation, and are paid in discharge of an antecedent liability of the solicitor, including counsel’s fees, properly incurred on behalf of the client.

(3) For the purposes of computation of one-sixth of a bill, the bill shall be deemed to include the unpaid items which are allowed as part of it.

76 Fees not here provided for

Such sum shall be allowed as the taxing officer in his discretion thinks just and reasonable, having regard to all the circumstances of the case, for work and labour properly performed and not specifically provided for by these rules, but in respect of which, in the opinion of the taxing officer, an allowance should be made.

77 Costs of amendment of plaintiff’s pleadings

Where the plaintiff is directed to pay to the defendant the costs of the cause, the costs occasioned to a defendant by an amendment of the plaintiff’s pleadings shall be deemed to be part of the defendant’s costs in the cause (except as to an amendment which appears to have been rendered necessary by the default of the defendant), but there shall be deducted from the costs any sum which has already been paid by the plaintiff in respect of the amendment.

78 Plaintiff refused costs of his amendment

Where, upon taxation, a plaintiff who has obtained a judgment with costs is not allowed the costs of an amendment of his pleadings on the ground of the amendment having been unnecessary, the defendant’s costs occasioned by the amendment shall be taxed, and the amount of those costs shall be deducted from the costs to be paid by the defendant to the plaintiff.

79 Taxation where action etc dismissed with costs

Where:

(a) a proceeding is dismissed with costs;

(b) an application is refused with costs; or

the taxing officer may tax the costs without a further order referring the costs for taxation unless the Court or a Justice, upon the application of the party alleging himself to be aggrieved, prohibits the taxation of the costs.

80 Taxation of costs where parties differ

(1) Where it is directed that costs shall be taxed in case the parties differ about them:

(a) the party claiming the costs shall bring the bill of costs into the office of the proper taxing officer and give notice of his having done so to the other party; and

(b) at any time within seven days after the notice, the other party may inspect the bill, without fee.

(2) At or before the expiration of the seven days, or such further time as the taxing officer in his discretion allows, the other party shall agree to pay the costs or shall signify his dissent from them, and he may thereupon tender a sum of money for the costs.

(3) Where the other party makes no such tender, or where the party claiming the costs refuses to accept the sum tendered, the taxing officer shall proceed to tax the costs.

(4) Where the taxed costs do not exceed the sum tendered, the costs of the taxation shall be borne by the party claiming the costs.

81 Where total of costs taxed to be stated

Where any costs are by a judgment or order directed to be taxed and to be paid out of any money or fund in Court, the taxing officer in his certificate of taxation shall state the total amount of the costs as taxed without any direction for that purpose in the judgment or order.

82 Fees of experts etc

The allowances in respect of fees to such a person as is mentioned in Order 50, rule 3, and to an accountant, merchant, engineer, actuary or other scientific or expert person to whom a question or matter is referred, or whose aid or assistance is obtained, shall be regulated by the taxing officers.

83 Taxing officer’s discretion

(1) In the case of a fee or allowance which is discretionary, it shall, unless otherwise provided, be allowed at the discretion of the taxing officer.

(2) The taxing officer, in the exercise of his discretion, shall take into consideration:

(a) the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which such a fee or allowance applies;

(b) the nature and importance of the proceeding;

(d) the interest of the parties;

(e) the fund, estate or persons to bear the costs;

(f) the general conduct and costs of the proceeding; and

(g) all other circumstances.

84 Costs of judgment

Where 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.

85 Power of taxing officer to assess costs at a gross sum

(1) If, upon a taxation, it appears that:

(a) the costs have been increased by unnecessary delay, by improper, vexatious, prolix or unnecessary proceedings, or by other misconduct or negligence; or

(b) from any other cause, the amount of the costs is excessive having regard to the nature of the business transacted or the interests involved, to the money or value of 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 amount of those costs at a gross sum.

(2) The taxing officer shall, if necessary, apportion the amount among the parties, if more than one, or may report the matter to a Justice who may make such order as he thinks fit.

86 Cases where bill reduced by one-sixth

If, on the taxation of a bill of costs payable out of a fund or estate or out of the assets of a company in liquidation, the amount of the professional charges and disbursements contained in the bill is reduced by a sixth part, costs shall not be allowed to the solicitor leaving the bill for taxation for drawing and copying it, or for attending the taxation.

87 Objections to taxation review

(1) Where a party is dissatisfied with the allowance or disallowance by the taxing officer, in a bill of costs taxed by him, of the whole or a part of any items, he may, at any time before a certificate or allocatur is signed, or at such other time as may, in any case, be fixed by the taxing officer:

(a) deliver to the other party interested in the allowance or disallowance, and carry in before the taxing officer, an objection in writing to the allowance or disallowance, specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and

(b) thereupon apply to the taxing officer to review the taxation in respect of those items or parts.

(2) Pending the consideration and determination of the objection, the taxing officer may, if he thinks fit, issue a certificate of taxation or allocatur for or on account of the remainder, or of a part, of the bill of costs.

(3) Any further certificate or allocatur which may be necessary shall be issued by the taxing officer after his decision upon the objections.

88 Review of taxation by taxing officer

(1) Upon an application under the last preceding rule to review the taxation, the taxing officer shall reconsider and review his taxation in relation to the objections, and he may, if he thinks fit, receive further evidence in respect of the objections.

(2) If so required by a party, the taxing officer shall state in his certificate of taxation or allocatur, or by reference to the objection, the ground and reasons of his decision on the objection, and any special facts or circumstances relating to his decision.

(3) The taxing officer may tax the costs of the objections and add them to, or deduct them from, any sum payable by or to a party to the taxation.

(4) Except as provided by this rule, the taxing officer shall not, after a certificate or allocatur is signed, review his taxation or amend his certificate, except to correct a clerical or manifest error before payment or process issued for recovery of the costs.

89 Review of taxing officer’s certificate by Justice

(1) If a party is dissatisfied with the certificate or allocatur of the taxing officer as to any item or part of an item objected to under rule 87 of this Order, he may, within fourteen days from the date of the certificate or allocatur, or such other time as the Court or a Justice, or the taxing officer at the time he signs his certificate or allocatur, allows, apply to a Justice in Chambers for an order to review the taxation as to that item or part of an item.

(2) The Justice may thereupon make such order as the Justice thinks just.

(3) The certificate or allocatur of the taxing officer is final and conclusive as to all matters which have not been objected to in accordance with these rules.

90 Evidence on review

An application under the last preceding rule to a Justice to review the taxation shall be heard and determined by the Justice upon the evidence which has been brought in before the taxing officer, and further evidence shall not be received upon the hearing of the application unless the Justice otherwise directs.

91 Fees to counsel

Such fees may be allowed to counsel as in the circumstances of the case the taxing officer thinks reasonable.

92 Retaining fee

A retaining fee to counsel shall not be allowed on taxation as between party and party.

93 Employed counsel

A counsel’s fee shall not in any case be allowed to a practitioner who is a paid clerk of, or is in receipt of a salary from, a practitioner or firm of practitioners, or the Commonwealth or a State.

94 Fees to barristers and solicitors

When a practitioner acts in the capacities of both barrister and solicitor, or appears as counsel instructed by his partner acting as solicitor, neither he nor his partner may make a charge for “instructions for brief” or for “drawing” or “engrossing brief”, but, in lieu of those charges, the practitioner or partner, as the case may be, is entitled to such fees as are allowed by the taxing officer for “preparing for trial” and for “preparing brief notes for use on trial”.

95 Fees for conferences

Fees for conferences shall not be allowed in a proceeding in addition to the solicitor’s and counsel’s fees for drawing and settling, or perusing, any pleadings, affidavits, deeds, or other proceedings or abstracts of title, or for advising thereon, unless it appears to the taxing officer for some special reason that a conference was necessary or proper.

96 Two counsel

The taxing officer may, in his discretion, in any case allow the costs of briefing two or more counsel.

97 Where none of several counsel is Queen’s Counsel

Where the costs of briefing two or more counsel may properly be allowed, the allowance may be made although none of the counsel is one of Her Majesty’s Counsel.

98 Consultations

Where the costs of employing two or more counsel may properly be allowed, the taxing officer may, in his discretion, allow the costs of consultations between them.

99 Refresher fees

Where a trial or hearing (whether in open Court or not and whether witnesses are examined or cross-examined or not) extends beyond the day on which it is begun, the taxing officer may allow such refresher fees, as in his discretion he thinks reasonable, in respect of every five hours or part of five hours (including any midday adjournment) which is:

(a) on a day subsequent to the day on which the trial or hearing began; and

(b) subsequent to the expiration of the first five hours (including any midday adjournment) over which the trial or hearing has extended without being concluded.

100 Premature delivery of briefs

Where a proceeding is not brought on for trial or hearing, the costs of and consequent on the preparation and delivery of briefs shall not be allowed if the taxing officer is of opinion that the costs were prematurely incurred.

101 Defendant’s costs where hearing comes on but proceeding cannot be heard

Where:

(a) a proceeding which stands for trial or hearing is called on to be tried or heard but the proceeding cannot be decided by reason of a want of parties or other defect in the proceedings occasioned by the error or default of or on the part of the plaintiff;

(b) the proceeding is therefore struck out of the list or adjourned; and

the defendant shall, unless the Court or a Justice otherwise orders, be allowed the taxed costs occasioned by the first setting down, or adjournment, although he does not obtain the costs of the proceeding.

103 Vouchers for counsel’s fees

A fee to counsel (other than to a practitioner acting as both solicitor and counsel) shall not be allowed on taxation unless unconditional payment is vouched by the signature of counsel or otherwise proved to the satisfaction of the taxing officer.

104 Delay before taxing officer

Where, in proceedings before the taxing officer, a party is guilty of neglect or delay, or puts another party to any unnecessary or improper expense, the taxing officer may exercise the powers vested in him by rule 73 of this Order.

105 Power of taxing officer to limit or extend time

(1) The taxing officer may limit or extend the time for a proceeding before him.

(2) Where, by these rules or any other rule of Court, or by an order of the Court or a Justice, a time is appointed for a proceeding before or by a taxing officer, the officer may, unless the Court or Justice otherwise directs, from time to time extend the time appointed upon such terms as the justice of the case requires, notwithstanding that the application for the extension is not made until after the expiration of the time appointed.

106 Endorsement on bill of costs

Every bill of costs filed for taxation shall be endorsed with the name and address of:

(a) the solicitor by whom it is filed;

(b) in agency matters, the principal solicitor; and

107 Taxing fees payable

The fee payable for taxing a bill of costs is payable on completion of taxation whether or not a certificate of taxation is issued.

Order 72 General rules

Do not delete : Division placeholder

1 In cases not provided for, Justice may give directions

(1) When a party desires to take a step in a proceeding, and the manner or form of procedure is not prescribed by the rules or practice of the Court, the party may apply to a Justice for directions.

(2) A step taken in accordance with the directions given by the Justice shall be deemed to be regular and sufficient.

(3) A direction given pursuant to this rule is subject to review at any time by the Court or a Justice, and such further or other directions may be given as the Court or Justice thinks necessary or proper in the interests of justice.

2 Solicitor to act for party

Whenever by these rules an act is required to be done by, 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, to or with reference to that solicitor, unless it is expressly provided that it shall be done by, to or with reference to the party in question.

3 Testing of writs and commissions

(1) A writ or commission issued from the Court, and a document issued under the seal of the Court, shall, unless by any law or by these rules it is otherwise provided, bear date on the day on which it is issued.

(2) A writ or commission shall be tested in the same manner as a writ of summons in an action.

4 Publication of written reasons for judgments

When a judgment is pronounced in a proceeding, either by a Full Court or a single Justice, and the opinion of a Justice is reduced to writing, it is sufficient to state orally the opinion of the Justice without stating the reasons for the opinion, but his written opinion shall be then published by delivering it to the Registrar or associate in open Court.

5 Documents, how signed

Unless otherwise provided, a document required to be delivered, filed or served on behalf of a party may be signed by the party, his counsel or his solicitor.

6 Money paid into Court, how to be held

Moneys paid into Court are subject to the order of the Court or a Justice and shall be dealt with pursuant to that order or these rules and not otherwise, and, in the meantime, shall not be considered as held for, on account of, or for the use or benefit of any person.

7 Moneys in Court

(1) Subject to the provisions of Order 23, moneys or funds in Court shall be governed by the succeeding subrules of this rule.

(2) An order which directs funds to be paid into Court shall direct the credit to which the funds are to be placed.

(3) An order which directs funds in Court to be paid, sold, transferred, delivered or carried over to a credit other than that to which they are standing, or to be otherwise dealt with, shall state the particulars of the payment or other operation to be carried out.

(4) Funds paid into Court under an order shall be paid into the Bank to the credit of an account entitled “High Court of Australia Suitors’ Fund.”

(5) Funds so paid into the Bank shall not be withdrawn or paid from the Bank otherwise than under the authority or order of the Court or a Justice, but the Bank may make a payment under an order signed by the Principal Registrar or a District Registrar, and countersigned by the Marshal, without enquiry whether such an order has been made.

(6) The Court or a Justice may direct that any funds paid or to be paid into Court under an order shall be deposited at interest in the Bank, or invested at interest in stock or securities of the Government of the Commonwealth, in the names of the Principal Registrar, or of one of the District Registrars, and the Marshal.

(7) The Court or a Justice may also direct how, in what manner, in what amounts and to what accounts the interest shall be credited.

(8) In this rule, unless the contrary intention appears:

funds means any money, government stock, bonds or securities, or other securities, or any other investments of money including stocks and shares or any part thereof standing or to be placed to the credit of an account in the books of the Court.

the Bank means the Commonwealth Trading Bank of Australia.

10 Marking of fee

The Registrar shall, immediately upon payment of a fee upon or in respect of a document, or in respect of the filing, issuing, sealing or dealing with a document, mark upon the document the amount of the fee paid and the date of payment.

Order 73 Judiciary Act 1903 — Section 78B notice

Do not delete : Division placeholder

1 [Filing notice of constitutional matter]

(1) Where a proceeding pending in the Court involves a matter arising under the Constitution or involving its interpretation, within the meaning of section 78B of the Judiciary Act 1903, the party whose case raises the matter shall file a notice of a constitutional matter in the Registry at Canberra.

(2) Notice of a constitutional matter shall state:

(a) specifically the nature of the matter

(b) the facts showing that the matter is one to which subrule (1) applies.

(3) The notice of a constitutional matter shall be substantially in the form numbered in the First Schedule.

2 [Serving notice of constitutional matter]

The party whose case raises the constitutional matter or such other party as the Court may direct shall file notice of a constitutional matter and serve a copy thereof on every other party and on the Attorneys-General of the Commonwealth, the States, the Northern Territory, and the Australian Capital Territory.

(a) if the matter arises in any pleading — within 7 days of the delivery of the pleading; or

(b) if the matter arises in any originating process — within 7 days of the filing of the process; or

(c) otherwise if the matter arises before the date fixed for a hearing of a proceeding — not later than 14 days before that date; or

(d) otherwise if the matter arises during the hearing of any proceeding before the Court or a Justice — within such time as the Court or a Justice directs.

3 [Filing affidavit of service of notice of constitutional matter]

The party whose case raises the constitutional matter shall file an affidavit of service of the notice of a constitutional matter proving compliance with paragraph 2 (a), (b), (c) or (d) not later than 2 days before the date appointed for the hearing of a proceeding.

Item		Amount ($)
	Instructions
1.	To sue or defend, or to make or oppose an application for special leave to appeal, or to appeal, or oppose an appeal or to cross appeal, or for any other originating proceedings	163.50
2.	To make or oppose any interlocutory application	72.50
3.	For a special case, case stated or reservation of question of law for the consideration of a Full Court, or for a statement of claim or a petition	163.50
4.	For any pleading (other than a statement of claim)	127.00
5.	To amend any pleading ...............	43.80
6.	For a statement of facts or an agreed statement of facts in a matter	127.00
7.	For interrogatories, answers to interrogatories, special affidavits or an affidavit (not being a formal affidavit)	98.00
8.	For counsel to advise ................	70.00
9.	For a document not otherwise provided for ..	27.70
10.	For a brief for counsel on a hearing or application in Court or in Chambers or brief notes for solicitor Note Instructions are not to be allowed where the work intended to be included therein is charged for and allowed in detail. Instead of the above costs for instructions, such larger sum may be claimed as is reasonable in all the circumstances of the case, and is allowed on taxation at the discretion of the Taxing Officer.	90.90
	Writs
11.	Writ of Summons for the commencement of an action or other writ not specifically provided for	75.60
12.	Concurrent Writ of Summons ...........	27.10
13.	Writ of Subpoena ...................	39.50
14.	If any of the above writs exceeds 3 folios, for each extra folio Note These costs include all endorsements, and copies (for the officers sealing them) and attendances to issue or seal, but not the Court fees.	5.50
	Summonses and motions
15.	Any Chamber Summons or motion, including preparation, copies and attendance to issue, including attendance to fix return date	46.50
	- if more than 3 folios, for each extra folio ..	5.50
	Appearances and notices
16.	Preparing and entering an appearance including duplicate memorandum and Notice of Appearance for service	76.40
17.	Any necessary or proper notice or memorandum not otherwise provided for, or any demand	25.50
	- if more than 3 folios, for each extra folio .. Note This provision shall not apply to short notices or memoranda endorsed on other documents but the words or folios therein may be allowed as part of the documents so endorsed.	5.50
	Drawing
18.	Drawing any pleading or affidavit not exceeding 5 folios	72.50
	- or, per folio ......................	10.20
19.	Drawing any other document where no other provision is made - per folio ........................	10.00
	Engrossing
20.	Marking each exhibit to an affidavit .......	1.80
21.	Engrossing any document - per folio ........................	3.70
	Copies
22.	Of any document including carbon, photographic or machine made copy per page Except that where the allowance for 10 or more pages is claimed, in respect of any document, the sum allowed for such copies shall be at the discretion of the Taxing Officer.	1.80
	Perusal and examination
23.	Perusal of any document including special letter, telegram, telex or similar document	27.00
	- or, per folio ...................... Except that where an allowance for 30 or more folios is claimed, in respect of any document, the sum allowed for perusal shall be at the discretion of the Taxing Officer.	3.70
24.	Where it is not necessary to peruse a document, such as, checking a proof print of, or examining an application or appeal book per quarter hour
	- solicitor .........................	27.10
	- clerk ..........................	8.90
	Correspondence
25.	Short letter including a formal acknowledgment, making appointments, forwarding documents Without comment ..................	12.90
26.	Ordinary letter (including letters between principal and agent)	21.90
27.	Circular letter (after the first) each ........	7.30
28.	Special letter or letter containing opinion and including letters of substance between principal and agent	36.20
	or
	Such sum as the Taxing Officer thinks reasonable in the circumstances.
29.	Telegram, facsimile copy, telex or other document by similar transmitting process including attendance to dispatch (where necessary)	36.20
	or
	Such sum as the Taxing Officer thinks reasonable in the circumstances.
30.	Receiving and filing any incoming special letter, facsimile, telegram or telex Note Postage and transmission fees may be claimed as a disbursement properly incurred.	1.80
	Service
31.	Personal service of any process or proceeding where necessary	45.00
	or
	Such sum may be allowed as is reasonable having regard to time occupied, distance travelled and other relevant circumstances.
32.	When, in consequence of the distance of the party to be served, it is proper to effect service through an agent, instead of the allowance for service for:
	(a) Correspondence ................	40.10
	(b) Agent’s charges ................ and such disbursements as may reasonably be incurred.	76.50
33.	Service of any document at the office of the address for service either by delivery or by post	15.40
	Attendances
34.	An attendance which requires the attendance of a solicitor Per quarter hour ....................	43.40
35.	An attendance which is capable of being made by a clerk	27.00
	- or, per quarter hour .................	7.10
36.	Making an appointment or similar attendance by telephone	12.90
37.	An attendance on counsel: - with brief or other papers .............	27.60
	- to appoint a conference or consultation ....	12.10
38.	A conference or consultation with counsel ..	72.50
	- or, per half hour ...................	54.70
39.	On a summons or other application in Chambers	40.90
	- or, per half hour ...................	72.50
40.	In Court or in Chambers instructing counsel on any hearing or application
	- If a solicitor attends, per hour ..........	174.40
	or
	- If a clerk attends, per hour ............	72.60
41.	On an application or appearance before a Registrar or a Taxing Officer	90.90
	or
	- Per hour ........................ Note Instead of the above costs for attendances, such larger sum may be claimed as is reasonable in all the circumstances of the case, and is allowed on taxation at the discretion of the Taxing Officer.	108.90
42.	To hear judgment ...................	47.50
43.	When in the opinion of the Taxing Officer it is necessary for two solicitors, or a solicitor and a clerk to attend on a hearing, such additional allowance as the Taxing Officer thinks reasonable shall be made not exceeding per day	364.50
44.	Where the Taxing Officer is satisfied that a solicitor’s principal place of practice is in a place other than that in which the Court is sitting, and it is necessary for the solicitor to leave that place to attend in Court or in Chambers at the hearing of an appeal, application, or cause, an allowance (in addition to reasonable travelling expenses) may be made for each day that the solicitor is necessarily absent from the principal place of practice of such amount that the Taxing Officer thinks reasonable having regard to such other charges as the solicitor may be entitled to make in the matter. Not exceeding per day ...............	814.30
45.	An attendance for which no other provision is made	36.20
	Preparation of appeal and application books
46.	Preparation of appeal and application books including collating all necessary material, all necessary attendances and general oversight of their preparation in cases where the Registrar is satisfied it has been done efficiently. Per hour:
	- solicitor ........................	117.80
	- clerk ..........................	39.30
47.	Where appeal or application books are prepared in a solicitor’s office, the Taxing Officer may in his or her discretion allow such sum as the Taxing Officer thinks just and reasonable having regard to work and labour properly performed and charged for material used. In exercising his or her discretion the Taxing Officer shall have regard to commercial rates for copying and binding and is not obliged to apply the photographic or machine made copy costs otherwise allowable in this scale.
	General care and conduct
48.	The Taxing Officer may, where the case or circumstances warrant it, allow an amount to be claimed under this item, in addition to any item which appears in this scale, for general care and conduct. In exercising his or her discretion the Taxing Officer may have regard to any matters which the Taxing Officer considers relevant including: (a) the complexity of the matter and the difficulty and novelty of the questions raised or any of them; (b) the importance of the matter to the party and the amount involved; (c) the skill, labour, specialised knowledge and responsibility involved therein on the part of the solicitor; (d) the number and importance of the documents prepared or perused without regard to length; (e) the time expended by the solicitor; (f) research and consideration of questions of law and fact.
	Witnesses expenses
49.	Witnesses called because of their professional, scientific or other special skill or knowledge. Per day .........................	663.20
50.	Witnesses called, other than those covered in item 49. Per day .........................	70.00
51.	Witnesses remunerated in their occupation by wages, salary or fees, the amount lost by attendance at Court.
52.	Where the witness resides more than 50 kilometres from the Court, such sum as the Taxing Officer thinks reasonable for the actual cost of conveyance, together with a reasonable amount for sustenance or maintenance.
53.	The Taxing Officer may also allow such amount as he or she thinks reasonable and properly incurred and paid to witnesses for qualifying to give skilled evidence.
54.	Notwithstanding anything in the scale, the Taxing Officer may allow to an expert witness a special fee for attendance at Court not covered by the foregoing paragraphs of this item when the witness is acting as an expert in assisting counsel or a solicitor for a period during the trial or hearing. The scale in this item does not affect the existing practice of allowing qualifying fees to witnesses.
	Disbursements
55.	All Court fees, counsel’s fees and other fees and payments to, the extent to which they have been properly and reasonably incurred and paid, shall be allowed.
56.	The remuneration allowed to a solicitor shall be governed by the foregoing scale but in special cases the Taxing Officer may in his or her discretion allow such additional charges or disbursements as the Taxing Officer considers reasonable.

Year and number	Date of notification in Gazette	Date of commencement	Application, saving or transitional provisions
1952 No. 23	1 May 1952	1 Jan 1953
1953 No. 1	8 Jan 1953	8 Jan 1953	—
1953 No. 46	14 May 1953	14 May 1953	—
1954 No. 102	7 Oct 1954	7 Oct 1954	—
1955 No. 25	14 Apr 1955	14 Apr 1955	—
1955 No. 34	26 May 1955	26 May 1955	—
1959 No. 107	31 Dec 1959	31 Dec 1959	—
1960 No. 19	13 Apr 1960	13 Apr 1960	—
1960 No. 94	17 Nov 1960	17 Nov 1960	—
1961 No. 19	9 Feb 1961	9 Feb 1961	—
1961 No. 89	20 July 1961	20 July 1961	R. 1
1968 No. 4	18 Jan 1968	1 Feb 1968	R. 7 (2) and (3)
1970 No. 17	19 Feb 1970	1 Mar 1970	R. 1
1973 No. 94	31 May 1973	31 May 1973	—
1973 No. 205	25 Oct 1973	25 Oct 1973	R. 1
1976 No. 44	3 Feb 1976	1 Feb 1976	R. 1 (2)
1977 No. 41	28 Mar 1977	28 Mar 1977	—
1978 No. 10	24 Jan 1978	1 Feb 1978	—
1978 No. 46	29 Mar 1978	1 Apr 1978	R. 2
1980 No. 88	21 Apr 1980	21 Apr 1980 (see r. 1 and Gazette 1980, No. S82)	Rr. 2–4
1980 No. 296	14 Oct 1980	17 Oct 1980	—
1981 No. 24	27 Feb 1981	1 Mar 1981	R. 1 (2)
1982 No. 77	31 Mar 1982	31 Mar 1982	—
1982 No. 164	6 July 1982	6 July 1982	—
1982 No. 216	10 Sept 1982	4 Oct 1982	—
1982 No. 262	5 Oct 1982	5 Oct 1982	—
1983 No. 257	2 Nov 1983	2 Nov 1983	—
1983 No. 263	7 Nov 1983	8 Nov 1983	R. 1 (2)
1984 No. 406	12 Dec 1984	12 Dec 1984	—
1985 No. 387	10 Jan 1986	10 Jan 1986	—
1986 No. 22	21 Feb 1986	24 Feb 1986	R. 1 (2)
1986 No. 290	3 Oct 1986	6 Oct 1986	R. 1 (2)
1986 No. 305	23 Oct 1986	1 Nov 1986	—
1986 No. 383	22 Dec 1986	1 Jan 1987	—
1987 No. 46	30 Mar 1987	31 Mar 1987	R. 2
1987 No. 179	4 Sept 1987	7 Sept 1987	R. 1 (2)
1987 No. 302	22 Dec 1987	4 Jan 1988	R. 1 (2)
1988 No. 218	31 Aug 1988	5 Sept 1988	R. 1 (2)
1988 No. 230	22 Sept 1988	6 Feb 1989	—
1989 No. 27	2 Mar 1989	6 Mar 1989	R. 1 (2)
1989 No. 132	30 June 1989	1 July 1989	—
1990 No. 349	9 Nov 1990	12 Nov 1990	R. 1 (2)
1991 No. 318	24 Oct 1991	24 Oct 1991	—
1991 No. 473	16 Dec 1991	16 Dec 1991	—
1992 No. 40	17 Feb 1992	24 Feb 1992	R. 1.2
1992 No. 85	31 Mar 1992	1 Apr 1992	—
1993 No. 32	19 Feb 1993	22 Feb 1993	R. 1.2
1993 No. 324	6 Dec 1993	1 Feb 1994	—
1994 No. 1	17 Jan 1994	1 Feb 1994	—
1994 No. 144	23 May 1994	30 May 1994	R. 1.2
1995 No. 45	23 Mar 1995	3 Apr 1995	—
1995 No. 108	29 May 1995	29 May 1995	R. 1.2
1996 No. 260	29 Nov 1996	1 Jan 1997	—
1997 No. 11	14 Feb 1997	3 Mar 1997	R. 1.2 [see Table A]
1998 No. 61	15 Apr 1998	4 May 1998	R. 1.2 [see Table A]
1998 No. 298	30 Sept 1998	1 Oct 1998	—
1999 No. 197	13 Sept 1999	1 Oct 1999	R. 4 [see Table A]

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Order 1
r. 1..................	rs. 1998 No. 298
r. 5..................	am. 1953 No. 46; 1980 No. 88
r. 8..................	am. 1980 No. 88
Order 2
r. 8..................	rep. 1980 No. 88
Order 3
r. 4..................	am. 1953 No. 46; 1968 No. 4
Order 5
r. 3..................	rep. 1980 No. 88
r. 8..................	am. 1953 No. 46
Order 9
r. 2..................	am. 1953 No. 46
Order 10
r. 1..................	am. 1960 No. 94
r. 11.................	rs. 1953 No. 46
r. 13.................	am. 1960 No. 94
Order 11
r. 1..................	am. 1980 No. 88
r. 3..................	am. 1953 No. 46
r. 7..................	am. 1953 No. 46
r. 17.................	am. 1980 No. 88
r. 20.................	am. 1968 No. 4
Order 12
r. 5..................	am. 1953 No. 46; 1980 No. 88
r. 6..................	am. 1953 No. 46
rr. 13, 14..............	am. 1953 No. 1
Order 13
r. 10.................	am. 1980 No. 88
Order 14
r. 6..................	am. 1953 No. 46
Order 16
r. 26.................	am. 1968 No. 4
r. 56.................	am. 1953 No. 46
Order 23
r. 12.................	rep. 1953 No. 46
Order 26
r. 7..................	am. 1953 No. 46
r. 9..................	am. 1980 No. 88; 1982 No. 262
Order 27
r. 4..................	rep. 1953 No. 46
Order 28
r. 4..................	am. 1980 No. 88
r. 16.................	rs. 1953 No. 46
Order 30
r. 14.................	am. 1980 No. 88
Order 32
r. 7..................	rs. 1953 No. 46
Order 36
r. 4..................	am. 1980 No. 88
Order 39
r. 7..................	am. 1968 No. 4; 1982 No. 164
rr. 19, 20..............	rep. 1982 No. 164
Order 43
r. 12.................	rep. 1980 No. 88
Order 43A
O. 43A (rr. 1, 2)	ad. 1982 No. 77 am. 1982 No. 262
	rs. 1991 No. 473
r. 3..................	ad. 1983 No. 257
	rep. 1991 No. 473
Order 44
r. 23.................	am. 1953 No. 46
Order 45
r. 10.................	am. 1985 No. 387
Order 46
r. 4..................	am. 1953 No. 46
Order 49
r. 16.................	am. 1968 No. 4
Order 51
r. 1..................	am. 1955 No. 25
rr. 10, 11..............	am. 1953 No. 46
Order 52
r. 1..................	am. 1968 No. 4
Order 53
O. 53 (rr. 1–7)	rep. 1991 No. 473
rr. 1–7................	rep. 1991 No. 473
Order 55
r. 8..................	rs. 1970 No. 17
	am. 1985 No. 387
Order 58
r. 2..................	am. 1953 No. 46; 1970 No. 17
r. 3..................	am. 1953 No. 1; 1954 No. 102
	rep. 1980 No. 88
r. 5A.................	ad. 1973 No. 94
	rep. 1980 No. 88
r. 8..................	am. 1986 No. 383
r. 14.................	am. 1980 No. 88
Order 59
r. 4..................	am. 1988 No. 230
r. 5..................	am. 1983 No. 257
r. 6..................	am. 1980 No. 88; 1983 No. 257
r. 7..................	ad. 1983 No. 257
Order 60
r. 4..................	am. 1953 No. 46; 1954 No. 102
	rs. 1991 No. 473
Order 61
r. 4..................	am. 1970 No. 17
Order 63
r. 6..................	am. 1953 No. 1; 1985 No. 387
Order 65
O. 65 (rr. 1–20)	rep. 1991 No. 473
rr. 1–3................	rep. 1991 No. 473
r. 4..................	am. 1953 No. 46
	rep. 1991 No. 473
rr. 5–14...............	rep. 1991 No. 473
r. 15.................	am. 1953 No. 46
	rep. 1991 No. 473
rr. 16–18..............	rep. 1991 No. 473
r. 19.................	am. 1953 No. 46
	rep. 1991 No. 473
r. 20.................	rep. 1991 No. 473
Order 66
O. 66 (rr. 1–30)	rep. 1991 No. 473
r. 1..................	am. 1955 No. 25; 1959 No. 107
	rep. 1991 No. 473
rr. 2, 3................	rs. 1955 No. 25
	am. 1959 No. 107
	rep. 1991 No. 473
rr. 4–30...............	rep. 1991 No. 473
Order 66A
O. 66A (rr. 1–21)	ad. 1955 No. 25 rep. 1991 No. 473
rr. 1–21...............	ad. 1955 No. 25
	rep. 1991 No. 473
Order 66B
O. 66B (rr. 1–14)	ad. 1959 No. 107 rep. 1991 No. 473
rr. 1–14...............	ad. 1959 No. 107
	rep. 1991 No. 473
Order 67
O. 67 (rr. 1–7)	rep. 1991 No. 473
rr. 1–7................	rep. 1991 No. 473
Order 67A
O. 67A (rr. 1–6)	ad. 1961 No. 19 rep. 1991 No. 473
rr. 1–6................	ad. 1961 No. 19
	rep. 1991 No. 473
Order 68
r. 2A.................	ad. 1998 No. 298
Order 69A
O. 69A (rr. 1–11)	ad. 1986 No. 383 rep. 1993 No. 324
O. 69A (rr. 1–15)	ad. 1993 No. 324 rs. 1996 No. 260
r. 1..................	ad. 1986 No. 383
	am. 1991 No. 473
	rs. 1993 No. 324; 1996 No. 260
r. 2..................	ad. 1986 No. 383
	rs. 1993 No. 324; 1996 No. 260
r. 3..................	ad. 1986 No. 383
	rs. 1993 No. 324
	am. 1995 No. 45
	rs. 1996 No. 260
r. 4..................	ad. 1986 No. 383
	am. 1991 No. 473
	rs. 1993 No. 324; 1996 No. 260
r. 5..................	ad. 1986 No. 383
	rs. 1993 No. 324
	am. 1995 No. 45
	rs. 1996 No. 260
rr. 6, 7................	ad. 1986 No. 383
	rs. 1993 No. 324; 1996 No. 260
r. 8..................	ad. 1986 No. 383
	rs. 1993 No. 324
	am. 1995 No. 45
	rs. 1996 No. 260
r. 9..................	ad. 1986 No. 383
	rs. 1993 No. 324; 1996 No. 260
r. 10.................	ad. 1986 No. 383
	rs. 1993 No. 324
	am. 1995 No. 45
	rs. 1996 No. 260
r. 11.................	ad. 1986 No. 383
	rs. 1991 No. 318
	rs. 1993 No. 324
	am. 1994 No. 1
	rs. 1996 No. 260
rr. 12–15..............	ad. 1993 No. 324
	rs. 1996 No. 260
Order 70
O. 70 (rr. 1–8, 10, 12–24, 24A, 25–33)	rep. 1986 No. 383
O. 70 (rr. 1–16)	ad. 1986 No. 383
r. 1..................	rs. 1986 No. 383
r. 2..................	am. 1953 No. 1
	rs. 1954 No. 102; 1986 No. 383
	am. 1995 No. 45
r. 3..................	rs. 1986 No. 383
	am. 1995 No. 45
rr. 4–8................	rs. 1986 No. 383
r. 9..................	am. 1953 No. 46; 1980 Nos. 88 and 296
	rep. 1985 No. 387
	ad. 1986 No. 383
r. 10.................	am 1953 No. 46; 1968 No. 4; 1980 Nos. 88 and 296
	rs. 1985 No. 387; 1986 No. 383
r. 11.................	rep. 1953 No. 46
	ad. 1986 No. 383
r. 12.................	am. 1953 No. 46; 1983 No. 257; 1985 No. 387
	rs. 1986 No. 383
	am. 1995 No. 45
rr. 13, 14..............	rs. 1986 No. 383
r. 15.................	am. 1953 No. 46; 1980 No. 88
	rs. 1986 No. 383
r. 16.................	am. 1980 No. 88
	rs. 1986 No. 383
rr. 17–24..............	rep. 1986 No. 383
r. 24A................	ad. 1973 No. 94
	rep. 1986 No. 383
rr. 25–32..............	rep. 1986 No. 383
r. 33.................	ad. 1954 No. 102
	rep. 1986 No. 383
Order 70A
O. 70A (rr. 1–21)	ad. 1977 No. 41
rr. 1–21...............	ad. 1977 No. 41
Order 71
r. 19.................	am. 1985 No. 387
r. 42.................	am. 1968 No. 4
r. 64.................	am. 1968 No. 4
r. 102................	rep. 1968 No. 4
r. 103................	rs. 1955 No. 34
r. 107................	ad. 1992 No. 85
Order 72
r. 7..................	am. 1960 No. 19; 1984 No. 406
r. 8..................	am. 1968 No. 4; 1978 No. 10
	rep. 1992 No. 85
r. 9..................	am. 1968 No. 4
	rep. 1992 No. 85
rr. 11–14..............	rep. 1992 No. 85
Order 73
O. 73 (rr. 1–3)	ad. 1991 No. 473
rr. 1–3................	ad. 1991 No. 473
First Schedule..........	am. 1955 No. 25; 1968 No. 4; 1973 No. 205; 1986 No. 383; 1991 No. 473; 1995 No. 45
Form 1..............	1952 No. 23
	rs. 1973 No. 205
Form 2..............	1952 No. 23
	am. 1968 No. 4
Form 3..............	1952 No. 23
Form 4..............	1952 No. 23
	am. 1968 No. 4
Form 5..............	1952 No. 23
Form 6..............	1952 No. 23
	rs. 1973 No. 205
Form 7..............	1952 No. 23
	am. 1973 No. 205
Form 8..............	1952 No. 23
Form 9..............	1952 No. 23
	rs. 1973 No. 205
Forms 10–26.........	1952 No. 23
Forms 27, 28.........	1952 No. 23
	am. 1968 No. 4
Forms 29–31.........	1952 No. 23
Form 32.............	1952 No. 23
	am. 1968 No. 4
Forms 33–36.........	1952 No. 23
Form 37.............	1952 No. 23
	am. 1973 No. 205
Forms 38–45.........	1952 No. 23
Form 46.............	1952 No. 23
	am. 1973 No. 205
Forms 47–57.........	1952 No. 23
Forms 58–60.........	ad. 1955 No. 25
Forms 61, 62.........	ad. 1986 No. 383
	rs. 1995 No. 45
	rs. 1996 No. 260
Form 62A............	ad. 1996 No. 260
Form 63.............	ad. 1996 No. 260
Form 64.............	ad. 1986 No. 383
	rs. 1995 No. 45
	am. 1996 No. 260
Forms 65–68.........	ad. 1986 No. 383
Form 69.............	ad. 1991 No. 473
Form 70.............	ad. 1998 No. 298
Second Schedule.......	rs. 1955 No. 34; 1961 No. 89; 1968 No. 4; 1973 No. 205; 1976 No. 44; 1981 No. 24; 1983 No. 263; 1986 Nos. 22 and 290; 1987 Nos. 179 and 302; 1988 No. 218; 1989 No. 27; 1990 No. 349; 1992 No. 40;1993 No. 32; 1994 No. 144; 1995 No. 108; 1997 No. 11; 1998 No. 61; 1999 No. 197
Third Schedule.........	am. 1953 No. 46
	rs. 1968 No. 4
	am. 1970 No. 17
	rs. 1978 No. 10; 1982 No. 216; 1986 No. 305; 1989 No. 132
	rep. 1992 No. 85