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High Court Rules 1952

SR 1952 No. 23 Rules/Court & Tribunal Rules as amended, taking into account amendments up to SR 2001 No. 243
Registered 26 Mar 2010
Start Date 17 Sep 2001
End Date 01 Jan 2005
Date of repeal 01 Jan 2005
Repealed by High Court Rules 2004
Table of contents.
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Collapse Volume 1Volume 1
Collapse Order 1 Preliminary, interpretation and commencement of proceedingsOrder 1 Preliminary, interpretation and commencement of proceedings
Collapse I Preliminary and InterpretationI Preliminary and Interpretation
1 Name of rules [see Note 1]
2 Commencement
3 Repeal and saving
4 Pending proceedings etc
5 Interpretation
6 Reference to Acts etc
Expand II Commencement and title of proceedingsII Commencement and title of proceedings
Expand Order 2 Writs of summonsOrder 2 Writs of summons
Expand Order 3 Endorsement of claimOrder 3 Endorsement of claim
Expand Order 4 Endorsement of addressOrder 4 Endorsement of address
Expand Order 5 Issue of, and appearances to, writs of summons and originating processesOrder 5 Issue of, and appearances to, writs of summons and originating processes
Expand Order 6 Concurrent writsOrder 6 Concurrent writs
Expand Order 7 Disclosure by solicitors and plaintiffs, and change of solicitorOrder 7 Disclosure by solicitors and plaintiffs, and change of solicitor
Expand Order 8 Renewal of writsOrder 8 Renewal of writs
Expand Order 9 Service of writs of summonsOrder 9 Service of writs of summons
Expand Order 10 Service outside the CommonwealthOrder 10 Service outside the Commonwealth
Expand Order 11 AppearanceOrder 11 Appearance
Expand Order 12 Default of appearanceOrder 12 Default of appearance
Expand Order 13 Summary reliefOrder 13 Summary relief
Expand Order 14 Summary judgment for specific performanceOrder 14 Summary judgment for specific performance
Expand Order 15 Application for an accountOrder 15 Application for an account
Expand Order 16 PartiesOrder 16 Parties
Expand Order 17 Third party procedureOrder 17 Third party procedure
Expand Order 18 Change of parties by death etcOrder 18 Change of parties by death etc
Expand Order 19 Joinder of causes of actionOrder 19 Joinder of causes of action
Expand Order 20 Pleading generallyOrder 20 Pleading generally
Expand Order 21 Statement of claimOrder 21 Statement of claim
Expand Order 22 Defence and counterclaimOrder 22 Defence and counterclaim
Expand Order 23 Payment into and out of court and tenderOrder 23 Payment into and out of court and tender
Expand Order 24 ReplyOrder 24 Reply
Expand Order 25 Matters arising pending the actionOrder 25 Matters arising pending the action
Expand Order 26 Demurrer and objections to pleadingsOrder 26 Demurrer and objections to pleadings
Expand Order 27 DiscontinuanceOrder 27 Discontinuance
Expand Order 28 Default in pleadingOrder 28 Default in pleading
Expand Order 29 AmendmentOrder 29 Amendment
Expand Order 30 Caveats and releases in admiralty actionsOrder 30 Caveats and releases in admiralty actions
Expand Order 31 Summons for directions and consolidationOrder 31 Summons for directions and consolidation
Expand Order 32 Discovery and inspectionOrder 32 Discovery and inspection
Expand Order 33 Admissions and notices to produceOrder 33 Admissions and notices to produce
Expand Order 34 Issues, inquiries and accountsOrder 34 Issues, inquiries and accounts
Expand Order 35 Questions of law and issues of fact without pleadingsOrder 35 Questions of law and issues of fact without pleadings
Expand Order 36 TrialOrder 36 Trial
Expand Order 37 EvidenceOrder 37 Evidence
Expand Order 38 Court expertsOrder 38 Court experts
Expand Order 39 Affidavits and depositionsOrder 39 Affidavits and depositions
Expand Order 40 ExhibitsOrder 40 Exhibits
Expand Order 41 New trialsOrder 41 New trials
Expand Order 42 Motion for judgmentOrder 42 Motion for judgment
Expand Order 43 Entry of judgmentsOrder 43 Entry of judgments
Order 43A Interest on judgments
Expand Order 44 Drawing up judgments and ordersOrder 44 Drawing up judgments and orders
Expand Volume 2Volume 2

High Court Rules 1952

Statutory Rules 1952 No. 23 as amended

made under the

This compilation was prepared on 17 September 2001
taking into account amendments up to SR 2001 No. 243

This document has been split into two volumes
Volume 1 contains Order 1-Order 44
Volume 2 contains Order 45-Order 73, the Schedules and the Notes
Each volume has its own table of contents

Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra


Contents

Page

Order 1              Preliminary, interpretation and commencement of proceedings

I                           Preliminary and Interpretation

                        1  Name of rules [see Note 1]                                                24

                        2  Commencement                                                               24

                        3  Repeal and saving                                                            24

                        4  Pending proceedings etc                                                   24

                        5  Interpretation                                                                    25

                        6  Reference to Acts etc                                                       29

II                          Commencement and title of proceedings

                        7  Commencement of proceedings                                         29

                        8  Title of proceedings                                                           30

Order 2              Writs of summons

                        1  Endorsement of claim                                                       31

                        2  Costs of prolix writs                                                          31

                        3  Form of writ                                                                      31

                        4  Leave to issue out of Commonwealth                                  31

                        5  Form of writ for service out of the Commonwealth                31

                        6  Admiralty action                                                               32

                        7  Dating and testing of writs                                                 32

Order 3              Endorsement of claim

                        1  Endorsement under Order 2, rule 1                                     33

                        2  Forms of endorsement                                                      33

                        3  Endorsement to show representative capacity                     33

                        4  Endorsement where the claim is liquidated                         33

                        5  Ordinary account                                                              34

                        6  Libel                                                                                34

Order 4              Endorsement of address

                        1  Where plaintiff sues by solicitor                                         35

                        2  Where plaintiff sues in person                                            35

                        3  Address for service                                                           36

                        4  Where notice is served in lieu of writ                                   36

                        5  Matters not commenced by writ                                         36

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                       37

                        2  Endorsement as to appearance on writs etc issued out of Principal Registry       37

II                          General

                        4  Preparing and printing writs                                               37

                        5  Signing etc by proper officer                                              37

                        6  Copy of writ etc to be left with proper officer                        38

                        7  Filing and marking of copy of writ etc                                  38

III                         Admiralty actions

                        8  Admiralty, arrest warrant after affidavit                                38

                        9  Special circumstances                                                      39

IV                         Time for appearance

                       10  Time for appearance to be limited by writ                            40

V                          Actions on relation

                       11  Actions by Attorney-General on relation                              40

Order 6              Concurrent writs

                        1  Concurrent writs, how issued etc                                       41

                        2  Period during which concurrent writ in force                         41

                        3  Concurrent writs for service within, and outside, the Commonwealth       41

                        4  Concurrent originating process                                           41

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

                        1  Where name of solicitor endorsed on writ                            42

                        2  Change of solicitor                                                            42

                        3  Notice of appointment of solicitor                                       43

                        4  Notice of intention to act in person                                     43

                        5  Power to act through new solicitor                                      44

                        6  Removal of solicitor from the record at the instance of another party       44

                        7  Withdrawal of solicitor who has ceased to act for a party      45

                        8  Solicitor not to act for adverse parties                                 46

Order 8              Renewal of writs

                        1  Original writ in force for 12 months                                     47

                        2  Evidence of renewal                                                          48

                        3  Lost writ                                                                          48

Order 9              Service of writs of summons

I                           Mode of service

                        1  Undertaking to accept service                                            49

                        2  When service required, how effected                                   49

                        3  Substituted service                                                           49

II                          On particular defendants

                        4  Infant                                                                               49

                        5  Persons of unsound mind                                                  50

III                         On corporations and agents

                        6  Service on corporations etc                                               50

                        7  Service on agent                                                               50

IV                         In particular actions

                        8  Service in action for recovery of land                                   51

                        9  Admiralty actions in rem                                                   51

                       10  Service of warrant of arrest                                                51

                       11  Service of writ or warrant, how effected                               51

                       12  When cargo landed                                                           52

                       13  Where no access to cargo                                                52

                       14  Proceeds in Court                                                             52

V                          Generally

                       15  Endorsement after service                                                 52

Order 10            Service outside the Commonwealth

                        1  In certain cases service of writ etc allowed outside Commonwealth        53

                        2  Agreement as to jurisdiction and mode of service                55

                        3  Application to be supported by evidence                             55

                        4  Order to fix time for appearance                                         56

                        5  Notice of writ                                                                    56

                        6  Service of notice of writ                                                     56

                        7  Service abroad by letter of request                                     56

                        8  Other originating processes                                               58

                        9  Service of Australian documents in Convention countries      58

                       10  Validity of other service                                                     59

                       11  Air mail                                                                            59

                       12  British subjects residing outside the Commonwealth            60

                       13  Actions under Civil Aviation (Carriers’ Liability) Act 1959      60

                       14  Power of Court to cause persons to be informed                  61

Order 11            Appearance

                        1  Appearance in Registry                                                     62

                        2  Where defendant does not reside etc in district                   62

                        3  Mode of entering appearance; memorandum and duplicate   62

                        4  Conditional appearance                                                     63

                        5  Motion to set aside writ                                                     63

                        6  Notice of entry to plaintiff                                                   63

                        7  Entry by defendant entitled to enter at Principal Registry      64

                        8  Defendant’s address for service                                          64

                        9  Defendant in person                                                          65

                       10  Address for service                                                           65

                       11  Memorandum irregular, address fictitious                            65

                       12  Form of memorandum of appearance                                  66

                       13  Officer to enter memorandum                                             66

                       14  Appearance at Principal Registry to be notified to District Registry         66

                       15  Defendants appearing by same solicitor                              66

                       16  Solicitor not entering appearance                                       66

                       17  Bail bond in Admiralty actions                                           66

                       18  Time for filing bond                                                            67

                       19  Commissioner in certain cases not to take bail                   67

                       20  Commission recoverable on taxation                                  67

                       21  Time for appearance                                                         67

                       22  Admiralty intervention                                                        68

                       23  Recovery of land                                                               68

                       24  Landlord appearing                                                           68

                       25  Recovery of land, person not named defendant                    68

                       26  Recovery of land, limiting defence                                      69

Order 12            Default of appearance

                        1  Default of appearance by infant or person of unsound mind; notice of application 70

                        2  Default of appearance generally                                         71

                        3  Liquidated demand endorsed                                             71

                        4  Liquidated demand; several defendants                               71

                        5  Detention of goods                                                            71

                        6  Detention of goods; several defendants                               72

                        7  Detention of goods, damages and liquidated demand; final and interlocutory judgment     72

                        8  Recovery of land                                                               73

                        9  Other claims                                                                    73

                       10  Plaintiff not proceeding — judgment for costs                      73

                       11  Setting aside judgment                                                     73

                       12  Action in District Registry; time for entering judgment          74

                       13  Default of appearance in cases not otherwise specially provided for        74

                       14  Default in Admiralty action                                                 74

                       15  Default in Admiralty action                                                 75

                       16  Default of appearance to originating summons                     75

                       17  Judgment against one not to prejudice right against other defendant       75

Order 13            Summary relief

                        1  Special endorsement                                                        76

                        2  Judgment on writ specially endorsed under O. III r. 4            77

                        3  Application by summons                                                   78

                        4  Defendant may show cause                                               78

                        5  Examination of witnesses                                                  78

                        6  Judgment for part of claim                                                 78

                        7  Where one defendant has good defence, but other not         79

                        8  Leave to defend                                                                79

                        9  Summary disposal                                                            79

                       10  Assessment of damages                                                   79

                       11  Directions as to trial                                                          79

                       12  Relief from forfeiture                                                          80

                       13  Fresh application                                                              80

Order 14            Summary judgment for specific performance

                        1  Judgment on writ for specific performance                           81

                        2  Application by summons                                                   81

                        3  Defendant may show cause                                               81

                        4  Examination of witnesses                                                  82

                        5  Leave to defend                                                                82

                        6  Directions as to trial                                                          82

                        7  Summary disposal                                                            82

Order 15            Application for an account

                        1  Order for account                                                              83

                        2  Application, how made                                                      83

                        3  Judgment without pleadings                                               83

                        4  Evidence                                                                          84

                        5  Action may be directed to proceed in usual course              84

Order 16            Parties

I                           Generally

                        1  Persons claiming jointly, severally or in the alternative may be plaintiffs  85

                        2  No other proceeding to be brought for same claim               85

                        3  Proceeding in name of wrong plaintiff                                  86

                        4  Misjoinder and non-joinder                                                 86

                        5  Consent of plaintiff or next friend                                        87

                        6  Counterclaim — misjoinder                                                87

                        7  All persons may be joined as defendants                            87

                        8  Defendant need not be interested in all the relief                  87

                        9  Joinder of persons severally, or jointly and severally liable    87

                       10  Plaintiff in doubt as to person from whom redress is to be sought           88

                       11  Trustees, executors etc may sue and be sued in respect of estate         88

                       12  Numerous persons                                                           88

                       13  Power to approve compromise                                           88

                       14  Application to add or strike out                                          89

                       15  Where defendant added                                                    89

                       16  Actions under Act and Convention                                      90

                       17  Initial letters may be used                                                 90

II                          Persons under disability

                       18  Proceedings by infants                                                      90

                       19  Persons of unsound mind                                                  90

                       20  Appearance by infant                                                        91

                       21  Guardian ad litem                                                             91

                       22  Other cases                                                                     91

                       23  Next friend or relator                                                         91

                       24  Consent of persons under disability to procedure                 91

                       25  Removal and appointment of next friend or guardian ad litem 92

III                         Proceedings by and against poor persons

                       26  Suing or defending as poor person                                     92

                       27  Disqualification                                                                 92

                       28  Case before counsel                                                         93

                       29  Affidavit in support of application                                        93

                       30  No Court fees payable                                                       93

                       31  Order to be filed                                                                93

                       32  Memorandum of filing                                                        94

                       33  Assignment of counsel or solicitor                                      94

                       34  Prohibition of fees                                                             94

                       35  Revoking order                                                                 95

                       36  Settlement etc and discharge of solicitor                            95

                       37  Alteration in means of poor person                                     95

                       38  Solicitor to sign notices etc                                               95

                       39  Failure to proceed                                                             96

                       40  Costs — poor persons                                                      96

                       41  Liability of poor person for costs                                         97

                       42  Costs where order obtained by fraud                                   97

                       43  Costs to solicitor from proceeds of action                           98

IV                         Administration and execution of trusts

                       44  Appointment of person to represent next of kin or a class     98

                       45  Residuary legatee and next of kin                                      99

                       46  Person interested in proceeds of realty                               99

                       47  Residuary devisee or next of kin                                         99

                       48  Cestuis que trust                                                            100

                       49  Waste                                                                           100

                       50  Executor, administrator or trustee                                    100

                       51  Notice of judgment to be served on certain persons and its effect           100

                       52  Order for liberty to attend not necessary, but appearance to be entered  101

                       53  Memorandum of service to be entered in the Registry         101

                       54  Form of memorandum                                                     101

                       55  Service of notice of judgment on infants etc                       101

                       56  Court may appoint or dispense with legal personal representative           101

                       57  Administration — appearance at chambers in respect of creditor’s claims           102

Order 17            Third party procedure

                        1  Third party procedure                                                      103

                        2  Form and issue of notice                                                 103

                        3  Effect of notice                                                               104

                        4  Appearance                                                                    104

                        5  Default by third party                                                       104

                        6  Where judgment by default against defendant                    105

                        7  Third party directions                                                       105

                        8  Leave to defend                                                              106

                        9  At trial                                                                           107

                       10  Costs                                                                            107

                       11  Fourth and subsequent parties                                         107

                       12  Co-defendants                                                                108

                       13  Counterclaim                                                                  109

Order 18            Change of parties by death etc

                        1  Proceeding not abated where cause of action continued     110

                        2  Order to carry on proceeding                                            110

                        3  Service of order to continue proceeding                             111

                        4  Application to discharge order by person under no disability or having a guardian 111

                        5  By person under disability having no guardian                    111

                        6  Death of sole plaintiff or defendant                                    112

                        7  Solicitor of plaintiff to give notice of abatement                   112

                        8  Abated proceeding to be struck out                                  113

Order 19            Joinder of causes of action

                        1  All causes of action may be joined                                   114

                        2  Claims of trustees in bankruptcy etc                                 114

                        3  Husband and wife                                                           114

                        4  Executor and administrator                                              114

                        5  Claims by joint plaintiffs                                                   115

                        6  Remedy for misjoinder                                                     115

                        7  Order for exclusion                                                          115

Order 20            Pleading generally

                        1  Pleadings in High Court                                                   116

                        2  Delivery of pleadings — costs of prolix pleadings               116

                        3  Set-off and counterclaim                                                  116

                        4  Pleading to state material facts and not evidence               117

                        5  Particulars to be given where necessary                           117

                        6  Further and better statement or particulars                        118

                        7  Letter for particulars                                                        118

                        8  Particulars before defence                                               118

                        9  Order for particulars when a stay                                      118

                       10  Printing etc of pleadings                                                  119

                       11  Delivery of pleadings                                                       119

                       12  Marking pleadings                                                           119

                       13  “Not guilty by statute” abolished                                       119

                       14  Specific denial                                                                119

                       15  Condition precedent                                                        120

                       16  What must be specially pleaded                                      120

                       17  Departure                                                                       120

                       18  Denial to be specific                                                        121

                       19  Joinder of issue                                                              121

                       20  Evasive denial                                                                 121

                       21  Denial of contract                                                            121

                       22  Effect of documents to be stated                                      122

                       23  Malice, knowledge, condition of mind etc                          122

                       24  Rolled-up plea                                                                122

                       25  Notice                                                                            123

                       26  Implied contract or relation                                               123

                       27  Presumptions of law                                                        123

                       28  Actions for trespass                                                        124

                       29  Striking out pleadings                                                      124

                       30  Preliminary Act                                                               124

Order 21            Statement of claim

                        1  Statement of claim                                                          126

                        2  Allegation of jurisdiction                                                   126

                        3  Claim beyond endorsement                                             126

                        4  Relief to be specifically stated                                          127

                        5  Relief founded on separate grounds                                  127

                        6  Stated or settled account                                                127

Order 22            Defence and counterclaim

                        1  Mere denial insufficient                                                    128

                        2  Defences to actions on bills etc                                       128

                        3  Defences to actions under Order 13, r. 1 (1) (a) and (b)      128

                        4  Pleading to damage                                                        128

                        5  Persons in representative capacity                                   129

                        6  Time for delivery of defence                                              129

                        7  Where leave to defend given under Order 13 or 14              129

                        8  Proper admissions not made                                           129

                        9  Allowable counterclaim                                                    130

                       10  Title on counterclaim                                                       130

                       11  Counterclaim against person not party                              130

                       12  Appearance by added parties                                           130

                       13  Reply to counterclaim                                                     131

                       14  Exclusion of counterclaim                                                131

                       15  Discontinuance                                                               131

                       16  Judgment for balance                                                      131

                       17  Plea in abatement                                                           131

                       18  Plea of possession                                                         131

Order 23            Payment into and out of court and tender

                        1  Payment into Court                                                         133

                        2  Plaintiff may take out money                                            133

                        3  Money remaining in Court                                                134

                        4  Several defendants                                                          135

                        5  Counterclaim                                                                  135

                        6  Non-disclosure of payment into Court                               135

                        7  Payment into Court under certificate                                 136

                        8  Money paid into Court under order                                    136

                        9  Notice of payment in                                                       136

                       10  Duty                                                                              136

                       11  Money recovered by or paid into account for infant or person of unsound mind     137

Order 24            Reply

                        1  Time for reply                                                                 140

                        2  Reply to counterclaim                                                     140

                        3  Subsequent pleadings — time for pleading after reply         140

                        4  New assignment                                                             140

Order 25            Matters arising pending the action

                        1  New grounds of defence arising                                        141

                        2  Further defence or reply                                                   141

                        3  Confession of defence                                                     142

Order 26            Demurrer and objections to pleadings

                        1  Demurrer                                                                        143

                        2  Demurrer to state whether the whole or part — frivolous demurrer may be set aside with costs     143

                        3  Delivery                                                                          144

                        4  Demurrer and pleading in one document                           144

                        5  Leave to plead and demur together not necessary              144

                        6  Demurrer to claim founded on document                           144

                        7  Demurrer not entered for argument to be held sufficient      145

                        8  Form of setting down for argument                                    145

                        9  When demurrer required to be heard before Full Court        145

                       10  Copy pleadings for Justices                                             146

                       11  Amendment pending demurrer                                         146

                       12  Costs                                                                            146

                       13  Effect of decision on demurrer going to whole action          147

                       14  Where demurrer allowed to part of a pleading, that part is to be deemed to be struck out 147

                       15  Demurrer overruled with leave to plead                              147

                       16  Points of law may be raised by pleadings                          147

                       17  Dismissal of action                                                         148

                       18  Striking out pleading where no reasonable cause of action disclosed      148

                       19  Declaratory judgment                                                      148

Order 27            Discontinuance

                        1  Discontinuance by a party                                               149

                        2  Withdrawal by consent                                                    149

                        3  Entering judgment on discontinuance                               149

Order 28            Default in pleading

                        1  Default of plaintiff in delivering statement of claim               150

                        2  Claim for debt or liquidated demand                                  150

                        3  Several defendants, default of one                                    151

                        4  Damages — detention of goods                                       151

                        5  Default of one or more defendants                                    151

                        6  Debt or damages and detention of goods or damages        152

                        7  Recovery of land                                                             152

                        8  Claims joined with claim for recovery of land                      152

                        9  Where a defence is delivered to part of claim only              153

                       10  Admiralty actions in rem                                                  153

                       11  Defendant in default                                                        153

                       12  One of several defendants default                                     154

                       13  Close of pleadings on default                                           154

                       14  Default of third party                                                        154

                       15  Setting aside judgment by default                                     155

                       16  Effect of judgment by default                                            155

                       17  Counterclaims                                                                155

Order 29            Amendment

                        1  Amendment of endorsement                                            156

                        2  When plaintiff may amend without leave                            156

                        3  By defendant                                                                  156

                        4  Disallowance of amendment, application for, within 14 days 156

                        5  Pleading to amendment                                                   157

                        6  Other cases                                                                   157

                        7  Failure to amend under order                                           157

                        8  How amendments made                                                  158

                        9  Date of order and date of amendment to be marked           158

                       10  Delivery of amended document                                         158

                       11  Clerical mistakes and accidental omissions                      159

                       12  General power to amend                                                  159

                       13  Costs                                                                            159

Order 30            Caveats and releases in admiralty actions

                        1  Caveat against warrant to arrest                                       160

                        2  Caveat Warrant Book                                                      160

                        3  Search for caveat before issue of arrest warrant in District Registry        160

                        4  Writ to be served on party entering caveat                         161

                        5  Security to be given within 3 days                                    161

                        6  If security not given, action may proceed as on default       161

                        7  Judgment may be enforced by attachment and warrant      161

                        8  Release                                                                         162

                        9  Caveat against release                                                    162

                       10  Payment into Court                                                         162

                       11  Release of cargo arrested for freight only                           162

                       12  In salvage actions                                                           163

                       13  On giving security                                                           163

                       14  On consent or discontinuance or dismissal of action          163

                       15  Release to be left with Marshal                                        163

                       16  Registrar may require Justice’s order                                163

                       17  Liability for delaying release                                             164

                       18  Arrest notwithstanding caveat                                          164

                       19  Caveat Payment Book                                                     164

                       20  Caveat against payment out of Court                                164

                       21  Liability for delaying payment                                           164

                       22  Address of caveator                                                        165

                       23  Withdrawal of caveats                                                     165

                       24  Caveats may be overruled                                                165

                       25  Caveat in Admiralty actions in force for 6 months               165

Order 31            Summons for directions and consolidation

                        1  Summons for directions                                                   166

                        2  Interlocutory proceedings                                                 166

                        3  No affidavit to be used without leave                                  167

                        4  Parties to apply for directions                                           167

                        5  Subsequent applications                                                 167

                        6  Costs of subsequent applications                                     167

                        7  Consolidation of proceedings                                           168

Order 32            Discovery and inspection

                        1  Discovery by interrogatories                                             169

                        2  Further interrogatories by leave                                        169

                        3  Copy to be filed                                                              169

                        4  Interrogatories to corporation or body politic                      170

                        5  Applications to set aside                                                 170

                        6  Affidavit in answer, filing                                                   170

                        7  Objections to interrogatories by answer                            170

                        8  Order to answer or answer further                                     171

                        9  Application for discovery of documents                             171

                       10  Affidavit of discovery                                                        171

                       11  Affidavit of documents                                                     171

                       12  Production of documents                                                 172

                       13  Neglect to make discovery                                               172

                       14  Inspection of documents referred to in pleadings or affidavits 172

                       15  Time for inspection when notice given under rule 14; bank and trade books         173

                       16  Order for inspection                                                         173

                       17  Verified copies                                                                174

                       18  Power to order discovery of particular document or class of documents  175

                       19  Premature discovery                                                       175

                       20  Non-compliance with order for discovery or inspection        176

                       21  Service on solicitor of order for discovery                           176

                       22  Attachment of solicitor                                                    177

                       23  Using answer to interrogatories at trial                              177

                       24  Discovery against Marshal                                               177

                       25  Order to apply to infants                                                  177

Order 33            Admissions and notices to produce

                        1  Notice of admission of facts                                             179

                        2  Notice to admit documents                                              179

                        3  Notice to admit facts                                                       180

                        4  Judgment or order upon admissions of facts                      180

                        5  Affidavit of signature to admissions                                   180

                        6  Service of notice to produce documents                            181

                        7  Costs of notice where documents unnecessary                 181

Order 34            Issues, inquiries and accounts

                        1  Issues may be prepared and settled                                 182

                        2  lnquiries and accounts, when directed                              182

                        3  Special direction as to mode of taking account                  182

                        4  Accounts to be verified by affidavit and items numbered      182

                        5  Mode of vouching accounts                                              183

                        6  Surcharge                                                                      183

                        7  lnquiry as to outstanding personal estate                          183

                        8  Accounts and inquiries to be numbered                            183

                        9  Just allowances                                                              184

                       10  Registrar to report delay                                                  184

                       11  Expediting proceedings in case of undue delay                  184

Order 35            Questions of law and issues of fact without pleadings

I                           Special case

                        1  Special case by consent                                                 185

                        2  Special case by order before trial                                     185

                        3  Special case to be prepared etc                                       186

                        4  Leave to set down where person under disability is a party 186

                        5  Form of entry for argument                                               186

                        6  Notice of entry                                                                187

                        7  Agreement as to payment of money and costs                  187

                        8  Special case heard by Full Court in first instance               187

II                          Issues of fact without pleadings

                        9  Trial of questions of fact agreed upon                                187

                       10  Order for payment of sum of money                                  188

                       11  Entry of judgment upon the finding                                    188

Order 36            Trial

I                           Place

                        1  Place of trial or hearing                                                    189

                        2  Revoking or varying directions as to trial or hearing            189

II                          Mode of trial

                        3  Mode of trial                                                                   189

                        4  Party seeking trial by jury                                                189

                        5  Court may direct trial with jury at any time                        190

                        6  Questions of fact may be tried differently, one before the other 190

                        7  Number of Justices                                                         190

III                         Notice of and entry for trial

                        8  Notice of trial by plaintiff                                                  190

                        9  Notice of trial by defendant — motion to dismiss for want of prosecution 190

                       10  Form of notice of trial                                                      191

                       11  Length of notice                                                              191

                       12  Entry of cause for trial                                                     191

                       13  Avoidance of notice of trial                                               191

                       14  Notice of trial                                                                  192

                       15  Countermanding notice                                                    192

                       16  Entry for trial by party served with notice                           192

                       17  Entry by Registrar in list                                                  192

                       18  Time for entry before commencement of sittings                192

                       19  Setting down of causes on further consideration                192

                       20  Withdrawal of trial after entering                                       193

                       21  Order of trial                                                                   194

IV                         Papers for Justice

                       22  Copies of pleadings etc to be delivered                             194

V                          Proceedings at hearing or trial

                       23  Default of appearance by defendant at trial                        194

                       24  Default of appearance by plaintiff                                      194

                       25  Default of appearance by both parties                               195

                       26  Judgment by default may be set aside on terms                195

                       27  Adjournment of trial                                                         195

                       28  Solicitor through whose default trial is delayed may be ordered to pay costs       195

                       29  Evidence in mitigation of damages in action for libel or slander 196

                       30  Disallowance of vexatious question in cross‑examination    196

                       31  Judgment to be entered at or after trial                              196

                       32  No non-suit                                                                    196

                       33  Times of commencement and termination of trial               197

                       34  Entry of findings of fact on trial                                         197

                       35  Certificate for entry of judgment                                        197

VI                         Writ of inquiry and reference as to damages

                       36  Application of Rules                                                        198

                       37  Writ of trial and inquiry abolished                                      198

                       38  Ascertainment of damages where a matter of calculation    198

                       39  Damages in respect of continuing cause of action              198

Order 37            Evidence

I                           Office copies

                        1  Obtaining office copies                                                    199

                        2  Office copies admissible in evidence                                 199

II                          Examination of witnesses upon commission etc

                        3  Court or Justice may order depositions to be taken            199

                        4  Letters of request                                                            200

                        5  Examination of witnesses abroad                                     200

                        6  Form of order for examination of witnesses abroad             200

                        7  Order for attendance of person to produce                         201

                        8  Disobedience to order for attendance                                201

                        9  Expenses of person ordered to attend                               201

                       10  Examiner to have copy of writ and pleadings                     201

                       11  Examination, how taken                                                  202

                       12  Depositions to be taken down in writing, read over to and signed by witness, or if he refuses, by the examiner                                                                     202

                       13  Refusal of witness to attend or to be sworn                       202

                       14  Objection by witness to questions                                    203

                       15  Depositions to be transmitted to Registry                          203

                       16  Special report by examiner                                              203

                       17  Depositions not to be given in evidence without consent or by leave of Justice     204

                       18  Oaths                                                                            204

                       19  Attendance of witness under subpoena for examination or to produce     204

                       20  Evidence taken after trial                                                 205

                       21  Practice as to taking evidence at any stage                      205

                       22  Special directions as to taking evidence                            205

                       23  Evidence in proceedings subsequent to trial                      205

III                         Subpoena

                       24  Form of praecipe for a subpoena                                      205

                       25  Form of writ of subpoena                                                 206

                       26  Subpoenas in District Registry                                         206

                       27  Subpoena for attendance of witness in Chambers              206

                       28  Subpoena for attendance before Registrar                         206

                       29  Number of persons in a subpoena other than a subpoena duces tecum  206

                       30  Number of persons in subpoena duces tecum                   206

                       31  Correction of errors in subpoena                                       207

                       32  Service of subpoena                                                        207

                       33  Affidavit to prove service of subpoena                                207

                       34  Within what time subpoena can be served                         207

IV                         Shorthand notes

                       35  Shorthand notes                                                             207

Order 38            Court experts

                        1  Interpretation                                                                  209

                        2  Application to appoint independent expert                         209

                        3  The report of Court expert                                                209

                        4  Cross-examination                                                          210

                        5  Nomination and instructions                                             210

                        6  Experiments                                                                   210

                        7  Further report                                                                 211

                        8  Remuneration                                                                 211

                        9  Several issues                                                                211

                       10  Costs of proceedings                                                      211

Order 39            Affidavits and depositions

                        1  Evidence on motions etc                                                 213

                        2  Title of affidavits                                                              213

                        3  Contents of affidavit                                                         213

                        4  Exhibits                                                                         214

                        5  Certificate on exhibit                                                       214

                        6  Use of figures                                                                 214

                        7  Before whom affidavits may be sworn                                214

                        8  Affidavits etc how to be sworn and taken abroad                215

                        9  Form of affidavits                                                             215

                       10  Description and abode of deponent to be stated                 216

                       11  Affidavits made by two or more deponents                         216

                       12  Filing before using                                                           216

                       13  Affidavits to be filed in proper Registry                               216

                       14  Scandalous matter                                                          217

                       15  Alterations in affidavits                                                     217

                       16  Affidavits by illiterate or blind persons                               217

                       17  Affirmations                                                                    218

                       18  Use of defective affidavit                                                   218

                       21  Special times for filing affidavits                                        218

                       22  Affidavits in support of ex parte applications                      218

                       23  Copies of affidavits to be served                                        218

                       24  Alterations in accounts to be initialled                               219

Order 40            Exhibits

                        1  List of exhibits                                                                220

                        2  Office copy of list of exhibits                                            220

Order 41            New trials

                        1  New trial of cause heard without a jury                              221

                        2  New trial of cause tried with a jury                                    221

                        3  Service of notice of motion                                               221

                        4  Application of rules relating to appeals                              222

                        5  Hearing of application                                                      222

                        6  Evidence of Judge’s direction                                           222

Order 42            Motion for judgment

                        1  Judgment on motion for judgment                                     223

                        2  Setting down motion for judgment where issues have been directed to be tried    223

                        3  Where some only of issues directed have been tried, any party may apply to set down action on motion for judgment                                                      223

                        4  Motion to be set down within one year                              224

                        5  Where judgment given etc on motion for judgment             224

Order 43            Entry of judgments

                        1  Mode of entry                                                                 225

                        2  Recital regarding service                                                  225

                        3  Date of judgment pronounced in Court                              225

                        4  Date of entry of other judgments                                       225

                        5  Time to be stated for doing any act ordered to be done       226

                        6  Judgment on production of affidavit or document                226

                        7  Judgment on production of order or certificate                    226

                        8  Judgment on Registrar’s certificate                                   226

                        9  Judgment by consent when party appears by a solicitor     227

                       10  Consent of party in person                                               227

                       11  Entry of satisfaction                                                        227

Order 43A         Interest on judgments

Order 44            Drawing up judgments and orders

                        1  By whom judgments and orders to be drawn up                 229

                        2  Documents to be filed before judgment or order signed       229

                        3  Documents to be left with Registrar on bespeaking judgment or order     229

                        4  Registrar may require party to submit draft                        229

                        5  Time for bespeaking judgment or order                              230

                        6  Where judgment or order not bespoken                             230

                        7  Appointment for settling judgment or order                        230

                        8  Notice of appointment to be served on opposite party         230

                        9  Service of notice of appointment                                       230

                       10  Proof of service                                                               231

                       11  Appointment for passing judgment or order                        231

                       12  Default in attending appointment with documents               231

                       13  Adjournment of appointments                                           232

                       14  Settling and passing judgment or order without appointment 232

                       15  Party to engross judgment or order                                   232

                       16  Judgments and orders to be filed; duplicates                     232

                       17  Certificates for special allowance                                      233

                       18  When orders need not be drawn up                                  233

                       19  Date of order                                                                  234

                       20  Authentication                                                                234

                       21  Entry of judgments and orders etc                                    234

                       22  Application to add to or vary                                             235

                       23  Consent orders                                                               235

 

 

 

 


Order 1              Preliminary, interpretation and commencement of proceedings

I       Preliminary and Interpretation

1              Name of rules [see Note 1]

                These rules are the High Court Rules 1952.

2              Commencement

                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;

                (c)    an Act of the Parliament of a State; and

               (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;

                (c)    a Justice sitting in a place otherwise than as a Court or as a member of a Court; and

               (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

  

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

  

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

  

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;

                (c)    the name and nature of the property to be arrested;

               (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

                (c)    in an action of bottomry, waive the production of the bond.

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;

                (c)    where the place of service is in Papua, New Guinea or Norfolk Island — twenty-eight days; and

               (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

  

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

  

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;

                (c)    cannot be found;

               (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

                (c)    leave at that Registry a certificate signed by the applicant or his solicitor that the order has been duly served.

         (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

                (c)    leave at that Registry a certificate signed by him that the order has been duly served;

                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

  

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

  

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;

                (c)    relief is sought against a person domiciled or ordinarily resident within a State or Territory;

               (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;

                (c)    mortgagor means a party for the time being entitled to or interested in property subject to 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

                (c)    the grounds upon which the application is made.

         (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;

                (c)    a copy of the document and the translation for every person to be served; and

               (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

  

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

                (c)    to the service of the writ or other process or of a notice of the writ or other process;

                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

                (c)    to discharge the order authorizing that service.

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.

         (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.

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;

                (c)    signed by him or his solicitor; and

               (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

  

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

                (c)    a certificate of non-appearance;

                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

                (c)    make such order as he thinks just.

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

  

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;

                (c)    order the action to be set down for trial forthwith; and

               (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

  

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

  

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

                (c)    on such terms as appear to the Court or a Justice to be just;

                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

                (c)    that he has reasonable grounds for suing, defending or becoming a party.

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;

                (c)    issue a summons; or

               (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;

                (c)    a summons is not issued; or

               (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

  

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

                (c)    dismiss the application.

         (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

                (c)    be rescinded.

         (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

  

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:

                (c)    the change or transmission of interest or liability; or

               (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

                (c)    is under a disability, other than coverture, but has a guardian ad litem in the proceeding;

                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

  

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

  

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;

                (c)    the place of the collision;

               (d)    the direction and force of the wind;

                (e)    the state of the weather;

                (f)    the state and force of the tide;

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

                (h)    the lights (if any) carried by her;

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

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

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

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

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

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

  

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

  

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.

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