Western Australia Supreme Court Act 1935 Rules of the Supreme Court 1971 Western Australia Rules of the Supreme Court 1971 CONTENTS Order 1 - Application, elimination of delay and forms 1. Short title 2 2. Commencement and saving 2 3. Certain proceedings excluded 2 3A. Inherent powers not affected 3 4. Definitions 3 4A. Elimination of delays 6 4B. System of case flow management 7 4C. Parties to notify settlement 7 5. Construction of references to Orders, Rules etc. 7 6. Forms 8 Order 2 - Effect of non-compliance 1. Non-compliance with Rules 9 2. Application to set aside for irregularity 9 Order 3 - Time 1. "Month" means calendar month 11 2. Reckoning periods of time 11 3. Period between 24 December and 15 January excluded from time for filing etc. of pleading 11 4. Time expires on day on which Central Office closed 12 5. Extension etc. of time 12 6. Extension where security ordered 12 7. Notice of intention to proceed after year's delay 12 Order 4 - Mode of commencing proceedings: applications in pending proceedings 1. Commencement of civil proceedings 14 2. Applications in pending proceedings 14 3. Right to sue in person 14 Order 5 - Writs of summons 1. Form of writ 15 2. Writs for service out of the State 15 3. Place of trial to be shown 15 4. Place of issue 15 5. Preparation of writ 15 6. Sealing of writ 15 7. Copy to be left with officer 15 8. Copy to be filed 16 9. Writs for service out of the State 16 10. All writs to be tested 16 11. Time for appearance to be stated in writ 16 Order 6 - Indorsement of claim: other indorsements 1. Indorsement of claim 18 2. Actions for libel 18 3. Indorsement of statement of claim 18 4. Notice as to stay of proceedings 18 5. Representative character 19 6. Indorsement of claim for account 19 7. Writ etc. to state contact details 19 Order 7 - Duration and renewal of writ: concurrent writs 1. Duration and renewal of writ 20 2. Evidence of extension of validity of writ 20 3. Concurrent writs 21 4. Unserved writs may be struck out 21 Order 8 - Disclosure by solicitors: change of solicitors 1. Solicitor to declare whether writ issued by his authority 23 2. Change of solicitor 23 3. Notice of change of agent 24 4. Notice of appointment of solicitor 24 5. Notice of intention to act in person 24 5A. Notices to state party's contact details 24 6. Removal of solicitor from the record 25 7. Withdrawal of a solicitor who has ceased to act for a party 25 8. Effect of order 26 9. Service details of party whose solicitor is removed 26 11. Solicitor not to act for adverse parties 27 12. Practitioner or clerk not to be security 27 Order 9 - Service of originating process: general provisions 1. General provisions 28 2. Service of writ on agent of oversea principal 28 3. Service of writ in pursuance of contract 29 4. Service of writ in certain actions for possession of land 30 5. Service of originating summons, petition and notice of motion 30 Order 10 - Service out of the jurisdiction 1A. Application 31 1. When service out of jurisdiction is permissible 31 2. Service out of the jurisdiction in certain actions in contract 33 3. Notice of writ 33 4. Application for leave 34 5. Time for appearance 34 6. Service of notice 34 7. Service of originating summons and other documents 34 8. Saving of existing practice 35 9. Service abroad through foreign governments, judicial authorities, and consuls 35 10. Service abroad: general and saving provisions 37 11. Undertaking to pay expenses of service 38 Order 11 - Service of foreign process 1A. Application 39 1. Definitions 39 2. Service of foreign legal process 39 3. Service under Convention 40 4. Service to be through sheriff 41 5. Consequential orders 41 Order 11A - Service of foreign judicial process originating in a country that is a party to the Hague Convention 1. Definitions 42 2. Application 43 3. Request for service and accompanying documents 43 4. Service 44 5. Affidavit of service 45 6. Certificate of service 46 7. Application of Rules generally 46 Order 11B - Service of judicial process in a country that is a party to the Hague Convention 1. Definitions 47 2. Application 47 3. Records 48 4. Documents required to be filed 48 5. Procedure on filing application requesting service etc. 51 6. Procedure on receipt of certificate in respect of service 51 7. Payment of costs 52 8. Evidence of service 53 9. Application of Rules generally 53 Order 11C - Judgments in default of appearance where originating process is transmitted for service under the Hague Convention 1. Definitions 54 2. Application 54 3. Power to enter judgment in default of appearance where a certificate of service has been filed 55 4. Filing of certificate of service deemed to be compliance with certain other Rules 55 5. Power to enter judgment in default of appearance where a certificate of service has not been filed 56 6. Interlocutory orders 56 7. Setting aside a judgment in default of appearance 56 8. Application of Rules generally 57 Order 12 - Appearance 1. Who may enter appearance 58 2. How to enter an appearance 58 3. Procedure on receipt of requisite documents 58 4. Appearance to be served on plaintiff 59 5. Late appearance 59 6. Conditional appearance 59 7. Setting aside service before appearance 60 8. Person not named may defend for land 60 9. Person appearing to be named as defendant 60 10. Limited defence and notice thereof 60 Order 13 - Default of appearance to writ 1. Affidavit of service 62 2. Claim for liquidated demand 62 3. Where liquidated demand judgment against several defendants 63 4. Claim in detinue 63 5. Claim for possession of land 63 6. Mixed claims 64 7. Claims for damages 64 8. Other cases 65 9. Reference to Court in case of doubt 65 10. Setting aside judgment 66 Order 14 - Summary judgment 1. Plaintiff's application for summary judgment 67 2. Application to be by summons 67 3. Judgment may be given for plaintiff 68 4. Leave to defend 68 6. Summary judgment on counterclaim 69 7. Directions 69 8. Costs 70 9. Right to proceed with residue of action or counterclaim 70 10. Judgment for delivery of specific chattel 71 11. Relief from forfeiture 71 12. Setting aside judgment 71 Order 16 - Summary judgment on application of defendant 1. Defendant may apply for summary judgment 72 2. Plaintiff may show cause 72 3. Directions 73 4. Judgment may be set aside or varied 73 Order 17 - Interpleader 1. Relief by way of interpleader 74 2. Mode of application 74 3. Time for application by defendant 75 4. Stay of proceedings 75 5. Order on summons 75 6. Summary determination 75 7. Where question of law only 75 8. Claimant failing to appear etc. 76 9. Power to order sale of goods 76 10. Discovery etc. and trial 76 11. One order where several causes pending 76 15. Other powers of the Court 76 Order 18 - Causes of action, counterclaims and parties 1. Joinder of causes of action 77 2. Counterclaim against plaintiff 77 3. Counterclaim against additional parties 78 4. Joinder of parties 79 5. Court may order separate trials etc. 80 6. Misjoinder and nonjoinder of parties 80 7. Change of parties by reason of death etc. 81 8. Provisions consequential on making of order under Rule 6 or 7 82 9. Failure to proceed after death of party 84 10. Actions for possession of land 84 11. Relator actions 85 12. Representative proceedings 85 13. Representation of interested persons who cannot be ascertained etc. 86 14. Representation of beneficiaries by trustees etc. 88 15. Representation of deceased person interested in proceedings 88 16. Declaratory judgment 89 17. Conduct of proceedings 89 Order 19 - Third party and similar proceedings 1. Third party notice 90 2. Application for leave to issue third party notice 91 3. Issue and service of, and entry of appearance to, third party notice 91 4. Third party directions 92 5. Default of third party etc. 93 6. Setting aside third party proceedings 94 7. Judgment between defendant and third party 94 8. Claims and issues between a defendant and some other party 94 9. Claims by third and subsequent parties 95 10. Offer of contribution 96 11. Counterclaim by defendant 96 12. Costs 96 Order 20 - Pleadings 1. Service of Statement of Claim 97 2. Statement of Claim 97 3. Pleadings etc. to be filed before service 97 4. Service of defence 98 5. Service of reply and defence to counterclaim 98 6. Pleadings subsequent to reply 99 7. Pleadings: formal requirements 99 8. Facts, not evidence, to be pleaded 100 9. Matters which must be specifically pleaded 100 10. Matter may be pleaded whenever arising 102 11. Departure 102 12. Points of law may be pleaded 102 13. Particulars of pleading 102 13A. Particulars in defamation actions 104 14. Admissions and denials 104 15. Denial by joinder of issue 105 16. Defence of tender 106 17. Defence of set-off 106 18. Counterclaim and defence to counterclaim 106 19. Striking out pleadings and indorsements 106 20. Close of pleadings 108 21. Trial without pleadings 108 22. Preparation of issues 109 23. Preliminary Act - collision between vessels 109 24. Failure to lodge Preliminary Act 111 Order 21 - Amendment 1. Amendment of writ without leave 112 2. Amendment of appearance 112 3. Amendment of pleadings without leave 112 4. Application for disallowance of amendment made without leave 113 5. Amendment of writ or pleading with leave 114 6. Amendment of other originating process 115 7. Amendment of other documents 115 8. Failure to amend after order 115 9. Mode of amendment 116 10. Amendment of judgments and orders 117 Order 22 - Default of pleadings 1. Default in service of statement of claim 118 2. Default of defence: claim for liquidated demand 118 3. Claim for unliquidated damages 118 4. Claim in detinue 119 5. Claim for possession of land 119 6. Mixed claims 120 7. Other claims 120 8. Default of defence to counterclaim 121 9. Reference to Court 121 10. Setting aside judgment 121 Order 23 - Discontinuance 1. Withdrawal of appearance 122 2. Plaintiff may discontinue: defence may be withdrawn 122 3. Costs 123 4. Subsequent action stayed pending payment 123 5. Withdrawal of summons 123 Order 24 - Payment into court - offers to consent to judgment 9. In certain cases no payment out without order 124 11. Amounts under $7 500 may be paid without administration 124 12. Regulations 125 Order 24A - Offer of compromise 1. Mode of making offer 126 2. Application 126 3. Time for making or accepting offer 126 4. Time for payment 128 5. Withdrawal of acceptance 128 6. Offer without prejudice 128 7. Disclosure of offer to Court 129 8. Failure to comply with accepted offer 129 9. Multiple defendants 130 10. Costs 130 Order 25 - Security for costs 1. Security generally 133 2. Grounds for ordering 133 3. Court has a discretion 134 4. Definition 134 5. Manner of giving security 134 6. Action may be stayed 134 7. Payment out 135 8. Saving 135 Order 26 - Discovery and inspection 1A. Definitions 136 1. Discovery without order 136 2. Continuing obligation to give discovery 137 3. Determination of issue before discovery 138 4. Form of list and affidavit - by whom made 138 5. Defendant entitled to copy of co-defendant's list 139 6. Order for discovery of particular documents 139 7. Orders as to discovery 140 8. Inspection of documents in list 141 8A. Procedure on discovery 142 9. Order for inspection of documents 143 10. Order for production to the Court 144 11. Production only if necessary 144 11A. Costs of preparation of document to facilitate inspection 144 12. Claim of privilege 144 13. Production of business books 145 14. Where disclosure against public interest 145 15. Non-compliance with requirements for discovery etc. 145 15A. Certificate by solicitor 146 16. Revocation and variation of orders 146 Order 26A - Discovery etc. from non-parties and potential parties 1. Definitions 148 2. Public interest immunity not affected 148 3. Discovery etc. to identify a potential party 148 4. Discovery from a potential party 149 5. Discovery from a non-party 150 6. Order 26 applies to discovery ordered under this Order 151 7. Costs 151 Order 27 - Interrogatories 1. Discovery by interrogatories 152 2. Answers 152 3. Note as to party required to answer 152 4. Statement in answer 153 5. Grounds for objection 153 6. Statements etc. - by whom made 153 7. Order for answers or further answers 154 8. Non-compliance with order 154 9. Use of answers in evidence 155 10. Revocation and variation of orders 155 Order 28 - Medical examination: Inspection of physical objects 1. Medical examination of parties 156 2. Inspection of physical objects 157 Order 29 - Case flow management powers of the Court 1. Definitions 158 2. Court may review any case 158 3. Mediation conferences 161 3A. Application of Rules 4 and 4A 162 4. Compliance with standard times 162 4A. Failure to comply with standard times deemed in certain circumstances 164 5. Summons for directions 165 6. Directions hearings 165 Order 29A - Case management Part 1 - Preliminary 1. Application 167 2. Definitions 167 3. Case management directions 168 4. Enforcement orders 170 5. Inconsistencies with other Rules 171 Part 2 - Case management conferences 6. Status conference 171 7. Case evaluation conference 172 8. Listing conference 174 Part 3 - General 9. Other parties to be served within 24 hours 175 10. Who is to attend conferences 175 11. Mediation conferences 175 12. Applications at case management conferences 177 13. Judges and Masters may amend or cancel directions 177 14. Non-compliance with case management direction: duty to notify etc. 177 15. Cases that are struck out etc. 178 Part 4 - Inactive Cases List 16. Definition 178 17. Registrar may issue summons to show cause 178 18. Springing order that case be put on Inactive Cases List 179 18A. Cases inactive for 12 months deemed inactive 179 19. Parties to be notified of case being on Inactive Cases List and to advise clients 179 20. Consequences of a case being on Inactive Cases List 180 21. Cases on Inactive Cases List for 6 months to be taken to have been dismissed 180 Order 30 - Admissions 1. Admission of other party's case 181 2. Notice to admit facts 181 3. Judgment on admissions 181 4. Admission and production of documents 182 5. Notice to admit documents 182 Order 31 - Special cases and stated cases 1. Questions of law 184 2. Preliminary question of law 184 3. Preparation of case 184 4. Person under disability - leave to set down 185 5. Entry of special case for argument 185 6. Agreement as to payment of money and costs 185 7. Reference of case to Court of Appeal (Act s. 58(1)(d)) 186 8. Cases stated outside the Court 186 Order 31A - Expedited List 1. Definitions 188 2. Entry into Expedited List 188 3. Heading of documents 189 4. Timetable 189 5. Directions 190 6. Amendment to pleadings 192 7. Adjournments 192 8. Interrogatories 193 9. Plan, photograph or model 193 10. Mediation 194 11. Referees 195 12. Entry for trial 196 13. Removal from the Expedited List 196 14. Inconsistencies with other Rules 197 Order 32 - Place and mode of trial 1. Place of Trial 198 2. Application for trial by jury 198 3. Usual mode of trial 198 4. Time of trial of questions or issues 198 5. Issues may be tried differently 198 6. Trial with jury by a single Judge 199 7. Disposal of action 199 8. Trial by jury, precepts for etc. 199 Order 33 - Entry for trial 1. Time for entering action 200 2. When plaintiff in default, other party may act 200 3. Notice of entry 200 4. Form of entry for trial 201 5. Time to elapse before hearing 201 6. Entry for Perth 201 7. Entry for Circuit Court 201 8. Certificate of readiness for trial required 201 8A. Affidavit of service of notice of entry for trial 202 8B. Application for adjournment to Judge in charge of Civil List 202 9. Application to countermand entry 203 10. After entry no interlocutory applications without leave 203 11. No withdrawal from list after date fixed except by leave 204 12. Fixing dates of trial 204 13. Re-listing for further consideration 205 14. Papers for the Judge 206 Order 34 - Proceedings at trial 1. Failure of both parties to appear 207 2. Non-appearance of either party 207 3. Setting aside judgment given in absence of party 207 4. Adjournment of trial 207 5. Conduct of the trial 207 5A. Time etc. limits at trial 208 6. Evidence in mitigation of damages in libel or slander 209 7. Inspection by Judge or jury 209 8. Judgment at or after trial 209 9. Record of proceedings 210 10. Where time occupied by trial excessive 210 11. Entry of findings of fact on trial 210 12. Certificate for entry of judgment 210 13. Exhibits 211 14. Return of exhibits 211 15A. Return of document or object to the person who produces the document or object 212 16. Death of party before judgment is given 213 17. Impounded documents 213 18. Assessment of damages by a Master 213 19. Damages to time of assessment 214 20. Writ of inquiry not to be used 214 Order 35 - Assessors and Referees 1. Trial with assessors 215 2. Trial before a Referee 215 3. Evidence before Referee 215 4. Authority of Referee 215 5. No power to imprison 215 6. Referee may submit question to the Court 216 7. Notice of report 216 8. Adoption etc. of report where further consideration adjourned 216 9. Application to adopt or vary report 216 10. Costs 217 11. Application of this Order to other references 217 Order 36 - Evidence: General 1. General rule - oral examination 218 2. Evidence by affidavit 218 3. Evidence of children and other witnesses 218 4. Reception of plans etc. in evidence 219 5. Orders may be revoked 219 6. Trials of issues, references etc. 219 7. Depositions as evidence 219 8. Court documents admissible in evidence 220 9. Evidence at trial may be used in subsequent proceedings 220 10. Evidence in another cause 220 11. Production of documents 221 20. Interest for the purposes of the Act s. 32 221 Order 36A - Expert evidence 1. Definitions 222 2. Medical evidence in actions for personal injuries 222 3. Other expert evidence 224 4. Exceptions 225 5. Limitation of expert evidence 225 6. Disclosure of part of expert evidence 225 7. Derogation of privilege 225 8. Mode of application 225 9. Revocation and variation of directions 226 Order 36B - Subpoenas 1. Definitions 227 2. Issuing of subpoena 228 3. Form of subpoena 228 4. Setting aside or other relief 229 5. Service 230 6. Compliance with subpoena 230 7. Production otherwise than upon attendance 231 8. Removal, return, inspection, copying and disposal of documents and things 231 9. Inspection of, and dealing with, documents and things produced otherwise than on attendance 232 10. Disposal of documents and things produced 233 11. Costs and expenses of compliance 234 12. Failure to comply with subpoena - contempt of court 234 13. Documents and things in the custody of a court 235 Order 37 - Affidavits 1. Title of affidavits 236 2. Form of affidavit 236 3. Affidavits by 2 or more deponents 237 5. Irregularity 237 6. Contents of affidavit 238 7. Scandalous matter 238 9. Exhibits 239 13. Affidavits to be filed 239 14. Special times for filing 239 15. Alterations in accounts 239 16. This Order additional to Oaths, Affidavits and Statutory Declarations Act 2005 240 Order 38 - Evidence by deposition 1. Power to order depositions to be taken 241 4. Enforcing attendance of witness 241 5. Refusal of witness to attend or be sworn 242 6. Time and place for examination 242 7. Documents to be given to examiner 242 8. Practice on examination 243 9. Expenses of witnesses 243 10. Examination of additional witnesses 243 11. Mode of taking deposition 243 12. Objection to questions 244 13. Special report 245 14. Oaths 245 15. Perpetuating testimony 245 16. Examiner's fees 246 17. Payment of examiner's fees 246 Order 38A - Examination of witnesses outside the State 1. Definitions 248 2. Application of this Order 248 3. Applications under Act s. 110 and 111 in civil proceedings 248 4. Application under Act s. 110 and 111 in criminal proceedings 249 5. Orders under Act s. 110 and 111 249 6. Manner of examination 250 7. Examiner's remuneration 250 Order 39 - Taking of evidence for foreign and Australian courts 1. Definitions 251 2. Applications under Act s. 116 251 3. Orders under Act s. 117 251 4. Examiner's remuneration 252 4A. Examiner's power to administer oaths 252 5. Transmission of depositions 252 6. Procedure where witness claims privilege 253 Order 39A - Trans-Tasman proceedings 1. Definitions 255 2. Application 255 3. Leave to serve subpoena 255 4. Setting aside subpoena (Act s. 13) 257 5. Failure to comply with subpoena (Act s. 16) 258 6. Evidence by video link or telephone (Act s. 25) 258 7. Fax copies 260 Order 40 - Court experts 1. Definitions 261 2. Appointment of expert 261 3. Report of Court expert 261 4. Cross-examination 262 5. Remuneration 262 6. Further expert witnesses 262 Order 41 - Motion for judgment 1. Judgment to be on motion 264 2. Judgment after issues tried 264 3. Where some issues only determined 264 4. Motion to be set down within one year 265 5. Court may draw inferences and determine questions 265 Order 42 - Entry of judgment 1. Mode and form of entry 266 2. Date from which judgment or order takes effect 266 3. Orders to perform any act 266 4. Judgment on production of affidavit or document 266 5. Judgment on production of order or certificate 267 6. Judgment on certificate of Master or Registrar 267 7. Judgment by consent when party appears by a solicitor 267 8. Consent of party in person 267 9. Satisfaction of judgments 267 Order 43 - Drawing up judgments and orders 1. Drawing up of judgments etc. 269 2. When order need not be drawn up 269 3. Authentication of judgments and orders 270 4. Sealed duplicate to be issued 270 5. Amendment of order 271 6. Draft and documents to be lodged 271 7. Appointment to settle draft 272 8. Attendance on settling the draft 272 9. Default of attendance 272 10. Dispensing with appointment 273 11. Registrar's powers and reference to the Court 273 12. Party to engross 274 13. Certificate for special allowance 274 14. Entry of judgments and orders 274 15. Application to vary 274 16. Consent orders 275 Order 44A - Foreign Judgments Act 1991 (Commonwealth) rules 1. Definitions 276 2. Application 276 3. Application for registration 276 4. Evidence in support of application 277 5. Security for costs 278 6. Order for registration 278 7. Register to be kept 279 8. Notice of registration 279 9. Indorsement of service 280 10. Application to set aside registration 280 11. Enforcement 280 12. Determination of certain questions 281 13. Certified copy of judgment obtained in this State 281 Order 45 - Accounts and inquiries 1. Summary order for accounts 284 2. Accounts etc. at any stage 284 3. Directions to be numbered 284 4. Directions as to mode of taking account 284 5. Account to be verified 285 6. Mode of vouching accounts 285 7. Surcharge or error 285 8. Just allowances 286 9. Expediting proceedings 286 10. Distribution of fund before all persons entitled are ascertained 286 11. Master etc. may be ordered to take accounts or make inquiries 287 12. Right to adjournment from Registrar etc. 287 Order 46 - Civil Judgments Enforcement Act 2004 rules 1. Definitions 288 2. Applications that may be dealt with by a registrar 288 3. Enforcing judgment in action between partners 289 Order 51 - Receivers 1. Application for receiver and injunction 290 3. Receiver's security 290 4. Remuneration of receiver 291 5. Accounts 291 6. Payment of balances by receiver 291 7. Default by receiver 291 8. Books to be deposited 292 9. Compensation to party restrained 292 10. Compensation by applicant to party restrained 293 11. Application of this Order 293 Order 52 - Interlocutory injunctions, interim preservation of property 1. Application for injunction 294 2. Detention, preservation or inspection of property 294 3. Power to order taking of samples etc. 295 4. Disposal of perishable property etc. 295 5. Order for early trial 296 6. Recovery of personal property subject to lien 296 7. Directions 297 8. Allowance of income or transfer of property pendente lite 297 9. Injunction to include undertaking as to compensation to party restrained 297 10. Compensation to party restrained by undertaking 298 Order 52A - Freezing orders 1. Definitions 299 2. Freezing order 299 3. Ancillary order 299 4. Respondent need not be party to proceeding 300 5. Order against judgment debtor, prospective judgment debtor or third party 300 6. Court's other jurisdiction not affected 302 7. Service outside Australia of application for order 302 8. Costs 302 Order 52B - Search orders 1. Definitions 303 2. Search order 303 3. Requirements for making of search order 303 4. Court's other jurisdiction not affected 304 5. Terms of search order 304 6. Independent solicitors 305 7. Costs 305 Order 53 - Sales of land by the Court 1. Definition 307 2. Power to order sale of land 307 3. Manner of sale 307 4. Directions 307 5. Certificate of sale 308 6. Mortgage, exchange or partition 308 7. Reference of matters to counsel 309 8. Objection to counsel's opinion 309 Order 54 - Originating and other motions 1. Application of Order 310 2. Application by motion 310 3. Notice of motion 310 4. Length of notice of motion 310 5. Form of notice of motion 310 6. Issue of notice of motion 311 7. Service of notice of motion with writ 311 8. Adjournment etc. 311 Order 55 - Committal and attachment 1. Definition 312 2. Committal for contempt of court 312 3. Contempt in the face of the Court 312 4. Other cases of contempt 313 5. Form of notice and service 313 6. Arrest 314 7. Punishment 314 8. Power to suspend execution of committal order 314 9. Discharge 315 10. Saving for other powers 315 11. Court may make peremptory order in first instance 315 12. Application of Rules to attachment 316 Order 56 - Mandamus, Certiorari, Prohibition, Quo Warranto Division 1 - General 1. Application ex parte 317 2. Application for order to show cause, procedure on 318 3. Order to show cause, terms of 319 4. Service of order to show cause or notice of motion 319 6. Applicant limited to grounds etc. in order nisi 320 7. Right to be heard in opposition 320 8. Additional affidavits, determination of issue etc. 320 9. Order absolute, costs 321 10. Issue and filing of writs 321 Division 2 - Certiorari 11. Time for application 322 12. Copy of warrant, order etc. to be produced 322 13. Order to quash in the first instance 322 14. Forms 323 Division 3 - Mandamus 15. Prosecutor to show interest 323 16. Form of writ 323 17. Time for return of writ 324 18. Service 324 19. Service on corporate body, or justices 324 20. Return and service 324 21. Pleading to return 325 22. No motion for judgment 325 23. Peremptory writ 325 24. Costs where peremptory writ awarded in first instance, or on obedience 325 25. Proceedings in nature of interpleader 326 26. Proceedings not to abate 326 27. Time 326 28. Mandamus by order 327 29. No action against party obeying writ or order 327 Division 4 - Prohibition 30. Pleadings in Prohibition 327 31. Proceedings on judgment 327 32. Writ of Procedendo 328 33. Prohibition by order 328 Division 5 - Quo warranto 34. Rules of Court applicable 328 35. Signature and service of information 328 Order 56A - Review orders under the Magistrates Court Act 2004 1. Definitions 330 2. Application for a review order, making 330 3. Application for review order, procedure on 331 4. Review order, service of 332 5. Review order, hearing of 332 6. Final order, making and service of 333 Order 57 - Habeas corpus 1. Application for writ of habeas corpus 334 2. Power of Court when ex parte application made 334 3. Copies of affidavits to be supplied 335 4. Power to order release of person restrained 335 5. Signed copy of writ to be filed 335 6. Order for issue of writ, contents of 336 7. Service of writ and notice 336 8. Return to writ of habeas corpus 337 9. Procedure on hearing 337 10. Form of writ 337 Order 58 - Proceedings by originating summons Division 1 - Introductory 1. Proceedings to be heard in chambers to be commenced by originating summons 338 Division 2 - Administration and trusts 2. Originating summons for relief without administration 338 3. Summons for administration 339 4. Service 339 5. Decision without judgment for administration 340 6. Orders which may be made on application for administration or execution of trusts 340 7. Interference with discretion of trustee etc. 341 8. Conduct of sale of trust property 341 Division 4 - Declaration on originating summons 10. Construction of written instruments 341 11. Construction or validity of statutes etc. 342 12. Discretion of Court 342 13. Application by vendor or purchaser of land 342 Division 5 - General 14. Form and issue of originating summons 343 15. Duration and renewal: Concurrent summons 343 16. Time for appearance 343 17. Entry of appearance 344 18. Where appearance not required 344 18A. Time for service where appearance is not required 345 19. Fixing time for hearing 345 20. Notice of hearing 346 21. Evidence 346 22. Proceeding where a party fails to attend 346 23. Order made ex parte may be set aside 347 24. Costs thrown away by non-attendance of party 347 25. Further attendance where summons not fully disposed of 347 26. What matters may be included in the same summons 348 27. Directions etc. 348 28. Adjournment of summons 348 29. Further provisions as to powers and procedure 349 30. Directions regarding applications under Transfer of Land Act 1893 s. 129C 349 Order 59 - Applications and proceedings in chambers 1. Business at chambers 351 2. Hearing of proceedings in open court 352 3. Form of applications in chambers 353 4. Form and issue of summons 353 5. Service of summons 354 6. Obtaining assistance of experts 354 7. Application of O. 58 R. 22 to 28 354 8. Summons operating as stay of proceedings 355 9. Parties to confer before making application 355 10. Form of order 355 Order 60 - Masters' jurisdiction 1. Masters' general jurisdiction 356 2. Master may refer proceedings to Judge or Court of Appeal 357 Order 60A - Jurisdiction of Registrars and appeals from Registrars' decisions 1. Powers of Registrars 358 2. Powers of Case Management Registrars 359 2A. Applications within Registrar's jurisdiction to be made to Registrar 359 3. Registrar may refer matters to a higher judicial officer 360 4. Appeals from Registrars 361 5. Appeal procedure 362 6. Powers of Judge or Master on appeal 362 7. This Order not to apply to Court of Appeal Registrar 363 Order 61 - Proceedings under judgments and orders Division 1 - Application of order 1. Application to proceedings under an order 364 Division 2 - Summons to proceed 2. Summons to proceed and directions 364 3. Notice of judgment to be served on certain persons 365 4. Settling deed if parties differ 366 5. When service of notice of judgment may be dispensed with 367 6. Power to bind where service dispensed with 367 7. Procedure where some parties not served 367 8. Course of proceedings in chambers 367 Division 3 - Attendances 9. Classifying interests of parties 368 10. Judge may require distinct solicitor to represent parties 368 11. Attendance of parties not directed to attend 369 12. Order stating parties directed to attend 369 Division 4 - Claims of creditors and other claimants 13. Advertisements may be directed 369 14. By whom prepared and signed 369 15. Form of advertisement 370 15A. Claims to state claimant's contact details 370 16. Failure to claim within specified time 370 17. Examination and verification of claims 371 18. Adjudication on claims 372 19. Adjournment - further evidence 373 20. Service of notice of judgment on certain claimants 373 21. Notice of claims allowed or disallowed 374 Division 5 - Interest 23. Interest on debts 374 24. Interest on legacies 375 Division 6 - Masters' and registrars' certificates 25. Master's certificate 375 26. Settling and filing of Master's certificate 376 27. Parties may take opinion of the Judge 376 28. Discharge or variation of Master's certificate 377 28A. Discharge or variation of Registrar's certificate 377 Division 7 - Further consideration 29. Summons to have matter further considered 378 Order 62 - Trustees Act 1962 rules 1. Mode of application 379 2. Title of proceedings 379 3. Payment into court under Act s. 99 379 4. Notice of payment in etc. 380 5. Applications in respect of money etc. and notice thereof 380 Order 62A - Mortgage actions 1. Application and definitions 381 2. Claim for possession: non-appearance by a defendant 382 3. Evidence in support of originating summons for possession or payment 383 4. Action by writ: judgment in default 384 5. Foreclosure in redemption action 385 Order 65 - Appeals to the General Division Division 1 - Preliminary matters 1. Definitions 386 2. Application of this Order 387 Division 2 - General matters 3. Hearings by telephone 387 4. Judge's general jurisdiction 388 5. Non-attendance by party, consequences of 389 6. Decisions made in absence of a party 389 7. Decisions made on the papers 389 Division 3 - Procedure on appeals 8. Nature of appeals 390 9. Time for appealing 390 10. Appeal, how to commence 391 11. Primary court to be notified and to supply records 392 12. Respondent's options 392 13. Interim order, applying for 393 14. Urgent appeal order, nature of 393 15. Consenting to orders 394 16. Appeal books not needed unless ordered 394 Division 4 - Concluding an appeal 17. Discontinuing an appeal 394 18. Settling an appeal 395 19. Return of exhibits 395 Order 65C - Electoral Act 1907 section 62N rules 1. Definition 398 2. Application of Order 398 3. Application for review 398 4. Title of the notice of review 398 5. Hearing 399 6. Date of hearing 399 7. Review book 400 8. Applicant limited to grounds in notice of originating motion 400 9. Right to be heard in opposition 400 10. Additional affidavits, determination of issue etc. 401 11. Order 401 12. Application of Rules of Court 401 Order 66 - Costs Division 1 - General 1. General rules as to costs 402 2. Costs where several causes of action or several defendants etc. 403 3. Costs of amendment without leave: non-admission of facts or documents 404 4. Costs out of fund or property 405 5. Liability of solicitor 405 6. Costs of solicitor guardian ad litem 406 7. Set-off 407 8. Costs of Law Officers 407 8A. Costs where practitioner acts pro bono 407 9. Restriction of discretion to order costs 407 10. Stage at which costs may be dealt with 408 11. Scale of costs 409 13. Costs where scale does not apply 410 14. Lump sum - interim award 410 17. Costs in small claims 411 18. Matters not provided for in the scale 411 19. Allowances on taxation 412 20. Basis for calculation of costs 412 21. Costs where no substantial trial 413 23. Certain fees may be increased in special circumstances 413 24. Costs of solicitor when money recovered by or on behalf of infant etc. 414 Division 2 - Taxation of costs 32. Bills of costs to be taxed 415 33. Indorsements on bill of costs 415 34. When notice of taxation need not be given 416 35. Notice of taxation 416 36. Vouchers to be lodged 416 37. Solicitor delaying taxation 416 38. Appointment to be peremptory 416 39. Taxing Officer may direct bills of costs to be brought in 417 40. Default by party in taxing costs 417 41. Where costs payable out of property notice to clients may be directed 417 42. Form of bills of costs 417 43. Taxing Officer determines questions of fact 418 44. Power of Taxing Officer 418 45. Reference to Court 419 46. Where proceedings adjourned into court 419 47. Costs of interrogatories, discovery 419 48. Costs of motion etc. following event 420 49. Where motion etc. stood over to trial and no order made as to costs 420 50. Costs reserved 420 51. Where Court may fix costs 420 52. Leave to refer to Judge where costs to be apportioned etc. 421 Division 3 - Review of taxation 53. Party dissatisfied with taxation may object 421 54. Taxing Officer may review taxation 422 55. Taxation may be reviewed by a Judge 422 56. No further evidence on review except with leave 423 Division 4 - Miscellaneous 57. Taxing Officer's certificate enforceable as a judgment 423 58. Stay on review 423 59. Power of Taxing Officer where party liable to be paid and to pay costs 424 60. Taxing Officer to assist in settling costs on taking of accounts 424 61. Interim certificate in matters of account 424 Order 67 - Central Office, officers 1. Superintendence of Central Office 426 2. Ministerial acts of Registrar 426 3. Taking of oaths and affidavits 426 4. Seals 426 5. Abuse of process: Reference by Registrar to Judge 426 6. Office copies etc. 427 7. Petition, award etc. to be filed before judgment etc. passed 427 8. Indexes 427 9. Date of filing to be marked etc. 428 10. Custody and searches of records 428 11. Inspection 428 12. Deposit of documents 429 13. Restriction on removal of documents 429 14. Deposit for officer's expenses 430 15. Admissions, awards etc. to be filed 430 16. New forms 430 17. Application of certain rules to accounts etc. taken by Registrar 430 18. Reference in judgment to Registrar 431 19. Some documents may be filed by fax 431 20. Some documents may be filed using the Court's website 432 Order 68 - Sittings, vacations and office hours 1. Civil sittings 435 2. Criminal sittings 435 3. Vacations 435 4. Days included in sitting and vacation 436 5. Offices - days on which open 436 6. Office hours 436 7. Vacation Judge 436 Order 69 - Paper, printing, notice, and copies 1. Regulations as to printing and photography 437 2. Requirements as to documents 437 3. Direction of Court as to cost of printing, shorthand, recording 439 4. Copies of documents for the other parties 440 5. Requirements as to copies 440 6. Copies of affidavits on certain ex parte applications 440 Order 70 - Disability 1. Definitions 442 2. Persons under disability suing or defending 442 3. Appointment of next friend or guardian ad litem 443 4. Probate actions, special provisions for 445 5. Where person under disability does not appear 447 6. Discharge or variation of certain orders 449 7. Removal of next friend or guardian 449 8. No implied admission from pleading 449 9. Discovery and interrogatories 449 10. Compromise of action by person under disability 450 10A. Compromise of appeal by person under disability 450 11. Compromise before action 450 12. Control of money recovered 451 13. Personal service on person under disability 452 Order 71 - Partners, business names 1. Partners may sue or be sued in the firm name 454 2. Disclosure of partners' names 454 3. Service 455 4. Notice of capacity in which person is served 455 5. Appearance of partners 455 6. No appearance except by partners 456 7. Appearance under protest of person served as a partner 456 9. Rules 1 to 7 apply also to some actions between a firm and its members etc. 457 11. Proceedings begun by originating summons 457 12. Application to person using a business name 457 13. Charge on partner's interest in partnership 457 Order 71A - Contact details of parties and others 1. Addresses of places, requirements for 459 2. Geographical addresses 459 3. Service details 460 4. Documents without contact details to be rejected 462 5. Changes of information to be notified 462 6. Fictitious details in documents, court powers as to 463 Order 72 - Service of documents 1. When personal service required 464 2. Personal service - how effected 464 3. Personal service on body corporate 464 3A. Personal service on the State 464 4. Substituted service 465 5. Ordinary service, how effected 465 5A. Ordinary service, when effected 467 6. Service of documents by the Court 468 6A. Serving documents by email 468 7. Affidavit of service 469 8. No service required in certain cases 469 Order 73 - Probate proceedings 1. Application and definitions 470 2. Issue of writ 470 3. Service out of the jurisdiction 471 4. Intervention 471 5. Citation to see proceedings 471 6. Person cited failing to appear 472 7. Entry of appearance 472 8. Citation to bring in grant 472 9. Citations 472 10. Service of citations 473 11. Affidavit of scripts 473 12. Where script in pencil 474 13. Default of appearance 474 14. Counterclaim 475 15. Party may give notice that he only requires proof in solemn form 475 16. Pleadings 476 17. Default of pleadings 476 18. Discontinuance 476 19. Compromise 477 20. Orders etc. to bring in testamentary papers 477 21. Applications to the Court 478 22. Administration pending litigation 478 Order 75 - Inheritance (Family and Dependants Provision) Act 1972 rules 1. Definitions 480 2. Mode of application 480 3. Copy of summons to be placed on probate file 480 5. Court may make inquiries etc. 481 6. Parties may be added 482 7. Representative defendant 482 8. Probate etc. to be lodged at Registry 482 9. Appearance to originating summons for extension of time not required 482 Order 75A - Legal Profession Act 2008 rules 1. Terms used in this Order 484 2. Application to the Supreme Court (full bench) 484 3. Applicant to attend 484 4. Oath or affirmation 485 Order 76 - Public Notaries Act 1979 rules 1. Definitions 486 1A. Districts prescribed for the Act 486 2. Application for certificate of fitness 488 3. Notice of intention to apply (Act s. 9) 489 4. Application to Supreme Court (full bench) 490 5. Form of certificates 490 6. Applications to suspend or strike off Public Notaries 491 7. Fees payable on application for appointment 491 Order 80 - Escheat (Procedure) Act 1940 rules 1. Definition 492 2. Mode of application 492 3. Notice 492 4. Evidence: Judge may direct inquiry 492 5. Affidavit verifying claim to be filed 493 6. Judge may order issue to be tried 493 7. Form of Order 493 8. Costs 493 Order 80A - Royal Commission (Custody of Records) Act 1992 rules 1. Definitions 494 2. Applications to register 494 3. Form of order 495 Order 81B - Service and Execution of Process Act 1992 (Commonwealth) rules 1. Application and definitions 496 2. Enforcement of judgments under Act s. 105 496 3. Interest under Act s. 108 497 4. Appeals under the Act 497 Order 81C - Road Traffic Act 1974 rules 1. Definitions 498 2. Applications under RTA s. 76 and 78, how to be made 498 3. Registrar's functions when application is made 499 4. Applicant to serve application etc. 499 5. Hearing of application, appearance at 500 6. Hearing of application, procedure on 500 7. Result of hearing, Director General to be notified 501 Order 81D - Commercial Arbitration Act 1985 rules 1. Definitions 502 1A. Application 502 2. Title of proceedings 502 2A. Appeals under Act s. 38(2) and applications for leave to appeal 503 3. Matters for a Judge in Court 504 4. Time for applications to determine preliminary points of law 505 5. Time for other applications and for appeals 505 6. Interlocutory orders 506 7. Subpoenas 506 8. Orders for examination of witnesses 506 9. Custody of records and exhibits 506 11. Enforcement of arbitration awards 507 12. Payment into and out of court 508 13. Acceptance of money paid into court 508 14. Money remaining in court 509 15. Non-disclosure of payment into court 509 16. Taxation of costs 509 Order 81E - Cross-vesting 1. Definitions 511 2. Application of this Order 511 3. Commencement of proceedings 511 4. Special federal matters 512 6. Directions 512 7. Transfer of proceedings 513 8. Applications to be dealt with by a Judge 513 9. Transfer on Attorney General's application 514 10. Transfer to Court when no proceeding pending 514 11. Conduct of proceedings 514 Order 81F - Proceeds of Crime Act 2002 (Commonwealth) rules 1. Definitions 516 2. Applications under the Act, making of 516 3. Service on the DPP (Cwlth) in Perth 518 4. DPP to file grounds for contesting application 518 5. Summons for directions 518 6. Court may give directions at any time 519 7. Representative respondent 519 8. Evidence on applications 520 9. Court may order separate hearing 520 Order 81FA - Criminal Property Confiscation Act 2000 rules Part 1 - Preliminary 1. Definitions 521 Part 2 - Proceedings under the Confiscation Act 2000 2. Applications for confiscation declarations 522 3. Applications for other declarations or orders 523 4. Affidavit in support of an application 524 5. Objections to confiscation of property 524 6. Service on DPP 524 7. Directions 525 8. Conference not required 525 9. Representative defendant 525 Part 3 - Registration of freezing notices and interstate orders 10. Registration of freezing notices 526 11. Registration of interstate orders 526 Order 81G - Criminal and Found Property Disposal Act 2006 rules 1. Terms used in this Order 528 2. General matters 528 3. Claims, making 529 4. Defendant may file memorandum of appearance 529 5. Defendant may file affidavit in response 530 6. Applications in the course of proceedings on a claim 530 7. Hearing a claim 530 8. Costs 531 Order 81H - Surveillance Devices Act 1998 rules 1. Definition 532 2. Application for warrant 532 3. Reports to Judges 532 4. Application for order allowing publication or communication in the public interest 532 5. Identification of persons in documents 533 6. Practice Directions 533 Order 82 - Sheriff's Rules 7. Service of process by sheriff 534 9. Taxation of fees 534 11. Deposit on account of fees 535 14. Service at a distance 535 16. Default in payment of fees 535 Order 83 - Consolidation of pending causes and matters 1. Causes may be consolidated 537 2. Consolidation with action removed from another court 537 3. Directions 537 Order 84 - General Rules 1. Repealed Orders not revived 538 2. Cases not provided for 538 3. Publication of written reasons for judgment 538 4. Seal and records in Federal Jurisdiction in Bankruptcy 538 5. Summary proceedings under Public Trustee Act 1941 s. 27 539 6. Affidavit of claim to purchase money paid into court 539 7. Account by solicitor 540 8. Interest and apportionment, certification of 540 9. Proceedings under Admiralty Act 1988 (Commonwealth) 540 Order 85 - Federal Courts (State Jurisdiction) Act 1999 rules 1. Definitions 542 2. Title of proceedings 542 3. When ineffective judgment to be registered 542 4. Application for registration 543 5. Ineffective judgments may be registered 544 6. Applications for an order under Act s. 10 544 7. Applications under Act s. 11 545 8. Effect of order under Act s. 11 545 The Second Schedule Forms 6. Memorandum of appearance (O. 12 r. 2(2)) 560 22. Subpoena (O. 36B r. 3(1)) 568 83. Appeal notice (O. 65 r. 10) 609 84. Service certificate (O. 65 r. 10(7)) 610 85. Notice of respondent's intention (O. 65 r. 12) 611 86. Application in an appeal (O. 65 r. 13) 612 87. Consent notice (O. 65 r. 15 & 18) 612 88. Request for hearing (O. 65 r. 7) 613 89. Discontinuance notice (O. 65 r. 17) 613 101. Application for extraordinary licence (O. 81C r. 2(1)) 619 102. Application by holder to vary extraordinary licence (O. 81C r. 2(2)) 620 103. Application by Director General to vary extraordinary licence (O. 81C r. 2(3)) 621 104. Application for removal of disqualification (O. 81C r. 2(4)) 622 108. Criminal and Found Property Disposal Act 2006, claim under (O. 81G r. 3) 624 The Third Schedule Payment into and out of Court Notes Compilation table 628 Provisions that have not come into operation 635 Defined Terms Western Australia Supreme Court Act 1935 Rules of the Supreme Court 1971 Order 1 - Application, elimination of delay and forms [Heading inserted in Gazette 26 Mar 1993 p. 1840.] 1. Short title These Rules may be cited as the Rules of the Supreme Court 1971 1. 2. Commencement and saving (1) These Rules shall take effect on 14 February 1972. [(2) deleted] (3) 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 the Court in any particular case. [Rule 2 amended in Gazette 21 Feb 2007 p. 533; 22 Feb 2008 p. 634.] 3. Certain proceedings excluded (1) Subject to the provisions of this Order, these Rules shall have effect in relation to all proceedings in the Supreme Court. (2) These Rules shall not have effect in relation to proceedings of the kinds specified in the first column of the following Table (being proceedings in respect of which rules may be made under the enactments specified in the 2nd column of that Table) - Table |Proceedings |Enactments | |[1. deleted] | | |2. Non-contentious or |Administration | |common form probate |Act 1903, s. 144. | |business. |Supreme Court Act 1935,| | |s. 167. | | |Public Trustee | | |Act 1941, s. 65. | |[3. deleted] | | |4. Proceedings in the |Electoral Act 1907, | |Court of Disputed |s. 173. | |Returns to which The | | |Electoral Rules of 1908| | |apply. | | (3) These Rules, save as expressly provided, shall not apply to - (a) any criminal proceedings; [(b) deleted] (c) matters of practice or procedure or other matters to which rules of Court made pursuant to a power conferred by any Act of the Commonwealth, apply. (4) In the case of proceedings mentioned in paragraphs (2) and (3), nothing in those paragraphs shall be taken as affecting any provision of any rules (whether made under the Act or any other Act) by virtue of which the Rules of the Supreme Court or any provisions thereof are applied in relation to any of those proceedings. [Rule 3 amended in Gazette 10 Sep 1973 p. 3428; 28 Jun 1994 p. 3049; 8 May 2000 p. 2161; 29 Dec 2000 p. 7918; 27 Jul 2001 p. 3895; 21 Feb 2007 p. 533.] 3A. Inherent powers not affected The inherent power of the Court to control the conduct of a proceeding is not affected by these Rules. [Rule 3A inserted in Gazette 28 Oct 1996 p. 5673.] 4. Definitions (1) In these Rules, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, namely - Accountant means the chief finance officer, designated under the Financial Management Act 2006 section 57, of the department of the Public Service principally assisting in the administration of the Act; Australian diplomatic or consular agent includes a person appointed to hold or act in any of the following offices (being an office of the Commonwealth) in a country or place outside Australia - (a) ambassador; (b) high commissioner; (c) minister; (d) head of mission; (e) commissioner; (f) chargé d'affaires; (g) counsellor, secretary or attaché at an embassy, high commissioner's office, legation or other post; (h) consul-general; (i) consul; (j) vice-consul; (k) trade commissioner; and (l) consular agent; Case Management Registrar means a Registrar appointed as such by the Chief Justice; Cause Book means the book kept in the Central Office in which the number of and other details relating to a cause or matter are recorded; Central Office means the central office of the Supreme Court at Perth; Consular agent means a consul-general, consul, vice-consul, pro- consul or consular agent, or acting consul-general, acting consul, acting vice-consul, acting pro-consul, or acting consular agent; Costs includes fees to counsel, charges, disbursements, expenses and remuneration; Diplomatic agent means an ambassador, envoy, minister, chargé d'affaires, or secretary of an embassy or a legation; Folio means 72 words, each figure being counted as one word; geographical address of a person, has the meaning given by Order 71A rule 2; Master means a Master of the Supreme Court, and includes an Acting Master; Officer means an officer of the Supreme Court; Originating summons means every summons other than a summons in a pending cause or matter; practitioner means an Australian legal practitioner as defined in the Legal Profession Act 2008 section 3; Probate action has the meaning assigned to it by Order 73; Proper officer shall mean an officer to be ascertained as follows: (a) where any duty to be discharged under any Act or these Rules is a duty which has heretofore been discharged by any officer, such officer shall unless otherwise provided by these Rules continue to be the proper officer to discharge the same; (b) where under any Act or these Rules any new duty is to be discharged, the proper officer to discharge the same shall be the officer directed by these Rules, or if no such officer, such other officer as may from time to time be directed by the Chief Justice to discharge the same; (c) when any doubt arises as to who is the proper officer to discharge any duty the Chief Justice may direct by what officer such duty is to be discharged; Receiver includes a manager or consignee; Registrar means a person for the time being holding or acting in an office designated under the Supreme Court Act 1935, "Registrar of the Supreme Court", and a reference to the Registrar or to a Registrar may include a reference to the Principal Registrar or a deputy Registrar; 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; service details of a person, has the meaning given by Order 71A rule 3; Taxing Officer includes a Registrar, and any other officer of the Court having power to tax costs; The Act means the Supreme Court Act 1935; to file means to file in the Central Office, and file, filed and filing have corresponding meanings; Trial includes hearing; Writ means a writ of summons. (2) In these Rules, unless the context otherwise requires, the Court means the Supreme Court or any one or more Judges thereof, whether sitting in court or in chambers, or a Master: but this provision shall not be taken as affecting any provision of these Rules, and in particular Order 60, by virtue of which the authority and jurisdiction of the Masters is defined and regulated. [Rule 4 amended in Gazette 14 Dec 1979 p. 3869; 30 Nov 1984 p. 3951- 2; 28 Oct 1996 p. 5674; 19 Apr 2005 p. 1298; 21 Feb 2007 p. 533-4; 3 Jul 2009 p. 2699.] 4A. Elimination of delays The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial. [Rule 4A inserted in Gazette 26 Mar 1993 p. 1840.] 4B. System of case flow management (1) Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of - (a) promoting the just determination of litigation; (b) disposing efficiently of the business of the Court; (c) maximising the efficient use of available judicial and administrative resources; and (d) facilitating the timely disposal of business at a cost affordable by parties. (2) These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in paragraph (1). [Rule 4B inserted in Gazette 26 Mar 1993 p. 1840-1.] 4C. Parties to notify settlement When any cause or matter is disposed of in whole or in part by settlement the solicitors for the parties to the settlement shall notify the Registrar in writing forthwith. [Rule 4C inserted in Gazette 26 Mar 1993 p. 1841.] 5. Construction of references to Orders, Rules etc. (1) Unless the context otherwise requires, any reference in these Rules to a specified Order, Rule or Schedule is a reference to that Order or rule of, or that Schedule to these Rules, and any reference to a specified Rule, paragraph or subparagraph is a reference to that Rule of the Order, that paragraph of the rule or that subparagraph of the paragraph, in which the reference occurs. (2) Any reference in these Rules to anything done under a rule or these Rules includes a reference to the same thing done before the commencement of that rule under any corresponding rule of court ceasing to have effect on the commencement of that rule. (3) Except where the context otherwise requires any reference in these Rules to any Act shall be construed as a reference to that Act as amended, extended or applied by or under any other Act. 6. Forms (1) The forms in the Second Schedule shall be used where applicable with such variations as the circumstances of the particular case require, and the reference to any form in or at the end of any Rule shall be read as referring to the appropriate Form in the Second Schedule to these Rules, and as a direction to use that Form for the purpose indicated by the Rule. [(2) deleted] [Rule 6 amended in Gazette 30 Nov 1984 p. 3952; 22 Feb 2008 p. 634.] [7. Deleted in Gazette 21 Feb 2007 p. 534.] Order 2 - Effect of non-compliance 1. Non-compliance with Rules (1) Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. (2) Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit. (3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed. 2. Application to set aside for irregularity (1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. (2) An application under this Rule shall be made by summons or motion, as the case may require, and the grounds of objection must be stated in the summons or notice of motion. Order 3 - Time 1. "Month" means calendar month Without prejudice to the definition of the word "month" in section 5 of the Interpretation Act 1984, in its application to these Rules, the word month where it occurs in any judgment, order, direction or other document forming part of any proceedings in the Supreme Court, means a calendar month unless the context otherwise requires. [Rule 1 amended in Gazette 29 Apr 2005 p. 1791.] 2. Reckoning periods of time (1) Where clear days are prescribed by these Rules or fixed by any judgment, order or direction, the time shall be reckoned exclusively of the first and last day. Where any number of days not expressed to be clear days is prescribed or fixed the time shall be reckoned exclusively of the first and inclusively of the last day. (2) Where less than 7 days is prescribed by these Rules or limited by any judgment, order or direction for doing any act any day on which the Central Office is closed for business shall not be reckoned. 3. Period between 24 December and 15 January excluded from time for filing etc. of pleading In the computation of the time prescribed by these Rules or by an order or direction for filing, serving or amending any pleading or for filing and serving any notice of appeal the period or any part of the period which is between 24 December and 15 January next following shall not be reckoned unless the Court orders. [Rule 3 amended in Gazette 9 Nov 1973 p. 4164.] 4. Time expires on day on which Central Office closed Where the time prescribed by these Rules or by any judgment, order or direction for doing any act expires on a day on which the Central Office is closed, and by reason thereof such act cannot be done on that day, the time shall be extended to the day on which the Central Office shall next be open. 5. Extension etc. of time (1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules, or by any judgment, order, or direction, to do any act in any proceedings. (2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period. (3) The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose. [Rule 5 amended in Gazette 29 Apr 2005 p. 1791.] 6. Extension where security ordered Where any security is ordered to be given by a party the time prescribed by these Rules or fixed by any order for the taking of any step by another party contingent on due compliance with the order for security, shall be deemed to be extended by the period between service of the order for security, and the giving of security. 7. Notice of intention to proceed after year's delay Where a year or more has elapsed since the last proceeding in an action, the party who desires to proceed must give to every other party not less than one month's notice of his intention to proceed. A summons on which no order was made is not a proceeding for the purpose of this Rule. [8. Deleted in Gazette 20 Jun 1986 p. 2040.] Order 4 - Mode of commencing proceedings: applications in pending proceedings 1. Commencement of civil proceedings Subject to the provisions of any Act and of these Rules - (a) every action in the Court must be commenced by writ; (b) civil proceedings between parties to be heard in chambers must be commenced by originating summons; (c) all other civil proceedings must be commenced by originating motion. 2. Applications in pending proceedings Applications in pending proceedings must be made - (a) if in court, by motion; (b) if in chambers, in accordance with Order 59. [Rule 2 amended in Gazette 28 Oct 1996 p. 5674.] 3. Right to sue in person (1) Subject to paragraph (2) and to Order 70 Rule 2, any person (whether or not he sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the Supreme Court by a solicitor or in person. (2) Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor. Order 5 - Writs of summons 1. Form of writ The writ for the commencement of an action, shall, except in the cases in which any different form is provided in these Rules, be in Form No. 1 or 2, whichever is appropriate. 2. Writs for service out of the State A writ to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction shall be in Form No. 3. Such notice shall be in accordance with Form No. 4. 3. Place of trial to be shown In all cases in which it is proposed that the trial shall be elsewhere than in Perth, the writ must show the proposed place of trial. 4. Place of issue Every writ shall be issued out of the Central Office. 5. Preparation of writ Writs shall be prepared by the plaintiff or his solicitor. 6. Sealing of writ Issue of a writ takes place upon its being sealed by the proper officer. 7. Copy to be left with officer The Plaintiff or his solicitor shall, on presenting a writ for sealing, leave with the officer a copy of the writ, and all the indorsements thereon, and such copy shall be signed by or for the solicitor leaving the same, or by the plaintiff himself if he sues in person. 8. Copy to be filed The officer receiving such copy shall file it and an entry of the filing thereof shall be made in a book to be called the Cause Book, which shall be in such form and kept in such manner as the Chief Justice may from time to time direct, and the action shall be distinguished by the date of the year and a number. 9. Writs for service out of the State A writ for service out of the jurisdiction or of which notice is to be given out of the jurisdiction shall not be issued without the leave of the Court, unless the writ is to be served under the Service and Execution of Process Act 1992 of the Commonwealth. [Rule 9 amended in Gazette 1 Mar 1994 p. 784.] 10. All writs to be tested Every writ of summons and also (unless by an Act or by these Rules it is otherwise provided) every other writ shall bear date on the day on which it is issued and shall be tested in the name of the Chief Justice, whether he is within or outside the State, or if there is no Chief Justice, in the name of the Senior Puisne Judge. 11. Time for appearance to be stated in writ The time to be stated in a writ for the appearance of any defendant shall be not less than the time next hereinafter specified according to the place of service, that is to say - |Where the place for service is |Time | |(1) In the State of Western | | |Australia - | | | Less than 300 kilometres from |10 days. | |Perth | | | 300 kilometres but less than 600 | | |kilometres from Perth |16 days. | |....................... | | | 600 kilometres and above 600 | | |kilometres |21 days. | |...................................| | |...... | | |(2) Outside the State but within | | |the Commonwealth of Australia |30 days. | |.................... | | |(3) Outside the Commonwealth of |Such time as| |Australia |shall be | | |fixed by the| | |Court. | In the computation of the times prescribed by this Rule, the day of service shall be excluded. [Rule 11 amended in Gazette 7 Dec 1973 p. 4488; 14 Dec 1979 p. 3869.] Order 6 - Indorsement of claim: other indorsements 1. Indorsement of claim (1) Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action. (2) In case of non-compliance with paragraph (1) the defendant may apply before appearance to set aside or amend the writ or for particulars. 2. Actions for libel In actions for libel the indorsement must state sufficient particulars to enable the publications in respect of which the action is brought to be identified. 3. Indorsement of statement of claim In any action other than an action which includes - (a) a claim by the plaintiff based on an allegation of fraud; or (b) a claim by the plaintiff in respect of libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, a statement of claim may, at the option of the plaintiff, be indorsed on the writ. 4. Notice as to stay of proceedings Where the plaintiff's claim is for a debt or liquidated demand only, the writ before it is issued must be indorsed with a statement of the amount claimed in respect of the debt or demand, and for costs up to and including service, respectively, and such indorsement shall further state that upon payment thereof within the time allowed for appearance, further proceedings will be stayed. The defendant may notwithstanding such payment have the costs taxed and if more than one-sixth is disallowed, the plaintiff's solicitor shall pay the costs of taxation, unless otherwise ordered by the Taxing Officer. 5. Representative character If the plaintiff sues, or the defendant, or any of the defendants, is sued in a representative capacity, the indorsements shall show, in accordance with such of the indorsements in Form No. 5 as is applicable to the case or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued. 6. Indorsement of claim for account In all cases in which the plaintiff, in the first instance, desires to have an account taken, the writ shall be indorsed with a claim that such account be taken. 7. Writ etc. to state contact details A writ or other document commencing proceedings must, in accordance with Order 71A, state - (a) the geographical address; and (b) the service details, of each person commencing the proceedings. [Rule 7 inserted in Gazette 21 Feb 2007 p. 534.] [8-11. Deleted in Gazette 21 Feb 2007 p. 534.] Order 7 - Duration and renewal of writ: concurrent writs 1. Duration and renewal of writ (1) For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 12 months beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ. (2) Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application is made to the Court before that day or such later day (if any) as the Court may allow. (3) Before a writ, the validity of which has been extended under this Rule, is served it must be marked with an official stamp showing the period for which the validity of the writ has been so extended. (4) Where the validity of a writ is extended by order made under this Rule, the order shall operate in relation to any other writ (whether original or concurrent) issued in the same action which has not been served so as to extend the validity of that other writ until the expiration of the period specified in the order. 2. Evidence of extension of validity of writ The production of a writ purporting to be marked with the official stamp showing the period for which the validity of the writ has been extended shall be sufficient evidence of the validity of the writ having been so extended, and of the commencement of the action as of the date of the original writ, for all purposes. 3. Concurrent writs (1) One or more concurrent writs may, at the request of the plaintiff, be issued at the time when the original writ is issued or at any time thereafter before the original writ ceases to be valid. (2) Each concurrent writ shall bear teste of the same day as the original writ, and shall be sealed by the proper officer with a seal bearing the word "Concurrent" and the date of issue of the concurrent writ. (3) Without prejudice to the generality of paragraph (1) a writ for service within the jurisdiction may be issued as a concurrent writ with one which, or notice of which, is to be served out of the jurisdiction, and a writ which, or notice of which, is to be served out of the jurisdiction may be issued as a concurrent writ with one for service within the jurisdiction. (4) A concurrent writ is a true copy of the original writ with such differences only (if any) as are necessary having regard to the purpose for which the writ is issued. 4. Unserved writs may be struck out (1) If at any time after 6 months after a writ is issued it appears to the Court that - (a) no affidavit of service of the writ has been filed by the plaintiff; and (b) no appearance has been entered to the writ, the Court may issue a summons (to a hearing at least 7 days after it is issued) to the plaintiff to show cause why the writ should not be struck out. (2) If at the hearing the Court is not satisfied that the writ has not been served for good reason the Court may - (a) strike out the writ; or (b) make directions as to the service of or the time for serving the writ. (3) On being struck out, a writ and any writ that is concurrent with it cease to be valid. [Rule 4 inserted in Gazette 28 Oct 1996 p. 5674-5.] Order 8 - Disclosure by solicitors: change of solicitors 1. Solicitor to declare whether writ issued by his authority (1) Every solicitor whose name is indorsed on any writ of summons shall, on demand in writing made by or on behalf of any defendant who has been served therewith or has appeared thereto, declare forthwith in writing whether such writ has been issued by him or with his authority. (2) If the solicitor answers in the affirmative, then he shall also, in case the Court so orders and directs, declare in writing within a time allowed by the Court, the profession, occupation, or quality, and place of abode of the plaintiff, on pain of being guilty of a contempt of court. (3) If the solicitor declares that the writ was not issued by him or with his authority, all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereon without leave of the Court. 2. Change of solicitor (1) A party suing or defending by a solicitor may change his solicitor without an order for that purpose, upon notice of such change being filed in the Central Office, but until such notice is filed and a copy thereof served in accordance with this Rule, the former solicitor shall subject to the provisions of this Order, be considered the solicitor of the party until the final conclusion of the cause or matter including any appeal therein. (2) The party giving the notice must serve on every other party to the cause or matter (not being a party in default as to entry of appearance) and on the former solicitor a copy of the notice indorsed with a memorandum stating that the notice has been duly filed. 3. Notice of change of agent (1) Where a solicitor for whom some other solicitor is acting as agent in a cause or matter changes the solicitor so acting, notice of the change must be given, and Rule 2(1) shall apply in relation to a notice of change of agent as it applies in relation to a notice of change of solicitor. (2) The solicitor giving the notice must serve on every party to the cause or matter (not being the party for whom he is acting or a party in default as to entry of appearance) and on the solicitor formerly acting as agent a copy of the notice indorsed with a memorandum stating that the notice has been duly filed. 4. Notice of appointment of solicitor Where a party, after having sued or defended in person, appoints a solicitor to act in the cause or matter on his behalf, the change may be made without an order for that purpose, by filing in the Central Office a notice of appointment of a solicitor and Rule 2(2) shall with the necessary modifications, apply in relation to a notice of appointment of a solicitor as it applies in relation to a notice of change of solicitor. 5. Notice of intention to act in person Where a party, after having sued or defended by a solicitor, intends and is entitled to act in person, the change may be made without an order for that purpose and Rule 2 shall with the necessary modifications apply in relation to a notice of intention to act in person as it applies in relation to a notice of change of solicitor. [Rule 5 amended in Gazette 21 Feb 2007 p. 534.] 5A. Notices to state party's contact details A notice filed under rule 2, 3, 4 or 5 by or in respect of a party must, in accordance with Order 71A, state - (a) the party's geographical address; and (b) the party's service details. [Rule 5A inserted in Gazette 21 Feb 2007 p. 534.] 6. Removal of solicitor from the record (1) Where a solicitor who has acted for a party in a cause or matter has died or become bankrupt, or cannot be found or has ceased to have the right of practising in the Court, or for any other reason has ceased to practise, and the party has not given notice of change of solicitor or notice of intention to act in person, any other party to the cause or matter may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor acting for the first-mentioned party in the cause or matter, and the Court may make an order accordingly. (2) An application for an order under this Rule must be made by summons which, unless the Court otherwise directs, must be served on the party to whose solicitor the application relates, and must be supported by an affidavit stating the grounds of the application. (3) Where an order is made under this Rule the party on whose application it was made must - (a) forthwith serve on every other party to the cause or matter (not being a party in default as to entry of appearance) a copy of the order; and (b) file in the Central Office a certificate signed by him or his solicitor that the order has been duly served as aforesaid. 7. Withdrawal of a solicitor who has ceased to act for a party (1) Where a solicitor who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with the provisions of this Order, the solicitor may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the cause or matter and the Court may make an order accordingly; but unless and until the solicitor - (a) serves on every party to the cause or matter (not being a party in default as to entry of appearance) a copy of the order, and (b) files in the Central Office a certificate signed by him that the order has been duly served as aforesaid, he shall, subject to the foregoing provisions of this Order, be considered the solicitor of the party until the final conclusion of the cause or matter including any appeal therein. (2) An application for an order under this Rule must be made by summons, which unless the Court otherwise directs, must be served on the party for whom the solicitor acted, and must be supported by an affidavit stating the grounds of the application. (3) The Court may dispense with the necessity of serving a party to a cause or matter with an order of the kind mentioned in paragraph (1). [Rule 7 amended in Gazette 15 Jun 1973 p. 2247; 23 May 1975 p. 1404.] 8. Effect of order Any order made under this Order shall not affect the rights of the solicitor and the party as between themselves. 9. Service details of party whose solicitor is removed If - (a) an order is made under rule 6 in respect of the solicitor of a party; or (b) an order is made under rule 7 in respect of the solicitor of a party, and the solicitor has complied with rule 7(1), the party's service details are to be taken to be party's geographical address stated on the most recently filed document until - (c) a notice is filed under rule 4 or 5; or (d) the Court orders otherwise on an ex parte application by the party, in which case the party's service details are those stated in the notice or ordered by the Court. [Rule 9 inserted in Gazette 21 Feb 2007 p. 534-5.] [10. Deleted in Gazette 21 Feb 2007 p. 534.] 11. Solicitor not to act for adverse parties No solicitor shall act in any cause or matter for plaintiff and defendant, or for any 2 or more defendants having adverse interests in a cause or matter. 12. Practitioner or clerk not to be security No practitioner or articled or other clerk to a practitioner shall be security for any party in any court without the leave of a Judge. Order 9 - Service of originating process: general provisions 1. General provisions (1) Subject to the provisions of any Act and these Rules, a writ must be served personally on each defendant by the plaintiff or his agent. (2) Where a defendant's solicitor indorses on the writ a statement that he accepts service of the writ on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant and to have been so served on the date on which the indorsement was made. (3) Where a writ is not duly served on a defendant but he enters an unconditional appearance in the action begun by the writ, the writ shall be deemed to be duly served on him and to have been so served on the date on which he entered the appearance. (4) Where a writ is duly served on a defendant otherwise than by virtue of paragraph (2) or (3), then subject to Order 10 Rule 9(9), unless within 3 days after service the person serving it indorses on the sealed copy of the writ the following particulars, that is to say, the day of the week and date on which it was served, where it was served, the person on whom it was served, and, where he is not the defendant, the capacity in which he was served, the plaintiff in the action begun by the writ shall not be entitled to enter final or interlocutory judgment against the defendant in default of appearance or in default of defence. 2. Service of writ on agent of oversea principal (1) Where the Court is satisfied on an ex parte application that - (a) a contract has been entered into within the jurisdiction with or through an agent who is either an individual residing or carrying on business within the jurisdiction or a body corporate having a registered office or a place of business within the jurisdiction; and (b) the principal for whom the agent was acting was at the time the contract was entered into and is at the time of the application neither such an individual nor such a body corporate; and (c) at the time of the application either the agent's authority has not been determined or he is still in business relations with his principal, the Court may authorise service of a writ beginning an action relating to the contract to be effected on the agent instead of the principal. (2) An order under this Rule authorising service of a writ on a defendant's agent must limit a time within which the defendant must enter an appearance. (3) Where an order is made under this Rule authorising service of a writ on a defendant's agent, a copy of the order and of the writ must be sent by post to the defendant at his address out of the jurisdiction, if such address is known to the plaintiff. 3. Service of writ in pursuance of contract (1) Where - (a) a contract contains a term to the effect that the Supreme Court shall have jurisdiction to hear and determine any action in respect of a contract or, apart from any such term, the Supreme Court has jurisdiction to hear and determine any such action; and (b) the contract provides that, in the event of any action in respect of the contract being begun, the process by which it is begun may be served on the defendant, or on such other person on his behalf as may be specified in the contract, in such manner or at such place (whether within or out of the jurisdiction), as may be so specified, then if an action in respect of the contract is begun in the Supreme Court and the writ by which it is begun is served in accordance with the contract the writ shall, subject to paragraph (2), be deemed to have been duly served on the defendant. (2) A writ which is served out of the jurisdiction in accordance with a contract shall not be deemed to have been duly served on the defendant by virtue of paragraph (1) unless leave to serve the writ, or notice thereof, out of the jurisdiction has been granted under Order 10 Rule 1 or 2. 4. Service of writ in certain actions for possession of land In an action claiming possession of land, the Court may - (a) if satisfied on an ex parte application that no person appears to be in possession of the land and that service cannot be otherwise effected on any defendant, authorise service on that defendant to be effected by affixing a copy of the writ to the door of the dwelling house or to some conspicuous part of the land; (b) if satisfied on an ex parte application that no person appears to be in possession of the land and that service could not otherwise have been effected on any defendant, order that service already effected by affixing a copy of the writ to the door of the dwelling house or to some conspicuous part of the land shall be treated as good service on that defendant. 5. Service of originating summons, petition and notice of motion The foregoing Rules of this Order except Rule 1(4) shall apply in relation to an originating summons to which an appearance is required to be entered as they apply in relation to a writ, and Rule 1(1) and (2) shall, with any necessary modifications, apply in relation to an originating summons to which no appearance need be entered, a notice of an originating motion and a petition as they apply in relation to a writ. Order 10 - Service out of the jurisdiction 1A. Application (1) Rules 9 to 11 shall not apply to the service of process in a foreign country which is a party to the Hague Convention. (2) This Order does not apply to any service of process to which the Service and Execution of Process Act 1992 of the Commonwealth applies. [Rule 1A inserted in Gazette 7 Feb 1992 p. 676; amended in Gazette 1 Mar 1994 p. 785.] 1. When service out of jurisdiction is permissible (1) Service of a writ or notice of a writ out of the jurisdiction is permissible with the leave of the Court whenever - (a) the subject matter of the action, so far as it concerns the party to be served, is - (i) land (with or without rents or profits) or other property situate within the State, or the perpetuation of testimony relating to land within the State; or (ii) any shares or stock of a corporation or joint stock company having its principal place of business within the State; (b) any Act, deed, will, contract, obligation or liability affecting land or hereditaments situate within the State is sought to be construed, rectified, set aside or enforced in the action; (c) in the action relief is sought against a person domiciled or ordinarily resident within the jurisdiction; (d) the action is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Western Australia or if the action is for any relief or remedy which might be obtained in any such action as aforesaid; (e) the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being in either case a contract - (i) made within the jurisdiction; or (ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or (iii) which by its terms or implications is governed by the law of Western Australia; (f) the action is brought in respect of a breach committed within the jurisdiction of a contract wherever made and irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so much of the contract as ought to have been performed within the jurisdiction; (g) in the action an injunction is sought ordering the defendant to do or refrain from doing anything within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed whether damages are or are not also sought in respect thereof; (h) any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction; (i) the action is for the recovery of taxes or duty (with or without interest or fines for default in payment thereof) which have been imposed or become due on or in respect of property situate within the jurisdiction; (j) the action is by a mortgagee or mortgagor in relation to a mortgage of personal property situate within the jurisdiction and seeks relief of the nature or kind following, that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee, but does not seek (unless and except so far as permissible under subparagraph (e)) any personal judgment or order for payment of any moneys due under the mortgage; (k) the action is founded on a tort committed within the jurisdiction; (l) the action is properly brought under the Civil Aviation (Carriers' Liability) Act 1959 of the Commonwealth. (2) In paragraph (1)(j) the expression personal property situate within the jurisdiction 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 in Western Australia; the expression mortgage means a mortgage charge or lien of any description; the expression mortgagee means a party for the time being entitled to or interested in a mortgage; and the expression mortgagor means a party for the time being entitled to or interested in property subject to a mortgage. 2. Service out of the jurisdiction in certain actions in contract Where it appears to the Court that a contract contains a term to the effect that the Supreme Court shall have jurisdiction to hear and determine any action in respect of the contract, the Court may, subject to Rule 3, grant leave for service out of the jurisdiction of the writ or notice of the writ, by which an action in respect of the contract is begun. 3. Notice of writ Unless service is to be effected within the Commonwealth of Australia, leave granted under Rule 1 or 2 shall be leave for service out of the jurisdiction of notice of the writ and not the writ itself. 4. Application for leave (1) An application for the grant of leave under Rule 1 or 2 shall be supported by an affidavit stating the grounds on which the application is made and that, in the deponent's belief, the plaintiff has a good cause of action, and showing in what place or country the defendant is, or probably may be found. (2) No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order. [Rule 4 amended in Gazette 15 Jun 1973 p. 2247.] 5. Time for appearance Where service is to be effected outside the Commonwealth of Australia, the order giving leave to serve notice of a writ out of the jurisdiction shall limit a time within which the defendant to be served must enter an appearance, and the Court in fixing that time shall have regard to the place or country where or within which the notice of the writ is to be served. 6. Service of notice Where leave is given under this Order to serve notice of a writ out of the jurisdiction, the notice shall subject to any direction given by the Court as to the manner in which such notice shall be served or brought to the notice of the defendant, be served in the manner in which writs are served. 7. Service of originating summons and other documents The Court may allow service outside the jurisdiction of any originating process other than a writ, or of any summons, order, or notice in any proceedings duly instituted, whether by writ of summons or otherwise, and the provisions of Rules 3, 4, 5, and 6 of this Order shall apply, mutatis mutandis, to such service. 8. Saving of existing practice Nothing contained in this Order shall prejudice or affect any practice or power of the Court under which, when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the Court may, without purporting to exercise jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings, with a view to such person having an opportunity of claiming, opposing, or otherwise intervening. 9. Service abroad through foreign governments, judicial authorities, and consuls (1) This Rule does not apply to service in - (a) the United Kingdom; (b) any Commonwealth country mentioned in section 1(3) of the British Nationality Act 1948 of the United Kingdom; (c) any British possession. (2) Where in accordance with these Rules leave is given to serve notice of a writ on a defendant in any foreign country with which a Convention in that behalf has been or shall be made and extended to the Commonwealth of Australia or the State of Western Australia, the notice may be served - (a) through the judicial authorities of that country; or (b) through a British or Australian diplomatic or consular agent in that country (subject to any provision of the Convention as to the nationality of persons who may be so served). (3) Where notice of a writ is to be served on a defendant in a country with which a Convention has not been made, the notice may be served - (a) through the government of that country, if the government is willing to effect service; or (b) through a British or Australian diplomatic or consular agent in that country except where service through such an authority is contrary to the law of that country. (4) Where a person wishes to serve notice of a writ by a method mentioned in paragraph (2) or (3) he shall lodge in the Central Office a request for service of notice of the writ by that method, together with a copy of the notice and an additional copy thereof for each person to be served. (5) Every copy of a notice lodged under paragraph (4) shall be accompanied by a translation of the notice in the official language of the country in which service is to be effected, or if there is more than one official language of that country, in any one of those languages which is appropriate to the place in that country where service is to be effected: Provided that this paragraph does not apply where the copy of the notice is to be served in a country the official language of which is, or the official languages of which include English, or is to be served by a British or Australian diplomatic or consular agent on a British subject or an Australian citizen, unless the Convention expressly requires the copy to be accompanied by a translation. (6) Every translation required by paragraph (5) shall be certified by the person making it to be a correct translation, and the certificate shall state his full name and address and his qualifications for making the translation. (7) The document to be served shall be sealed with the seal of the Supreme Court for use out of the jurisdiction and shall be forwarded by the Principal Registrar to the Attorney General for Western Australia for transmission through the diplomatic channel to the foreign country. (8) An official certificate transmitted to the Court through the diplomatic channel by the British or Australian diplomatic or consular agent, or by the foreign government or judicial authorities establishing the fact and the date of the service of the document shall be deemed to be sufficient proof of such service, and shall be filed of record and be equivalent to an affidavit of service within the requirements of these Rules in that behalf. Any document purporting to be such a certificate shall, until the contrary is proved, be deemed to be such a certificate. (9) Where an official certificate is produced pursuant to paragraph (8) in relation to the service of a notice of a writ under this Rule, no indorsement of service under Order 9 Rule 1(4) shall be required. [Rule 9 amended in Gazette 14 Dec 1979 p. 3869.] 10. Service abroad: general and saving provisions (1) Subject to Rule 9(9) and to the following provisions of this Rule Order 9 Rule 1 and Order 72 Rule 4 shall apply in relation to the service of a writ or notice of a writ, notwithstanding that the writ or notice is to be served out of the jurisdiction. (2) Nothing in this Rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country. (3) A writ or notice of a writ which is to be served out of the jurisdiction - (a) need not be served personally on the person required to be served, if it is served on him in accordance with the law of the country in which service is effected; and (b) need not be served by the plaintiff or his agent if it is served by a method provided for by Rule 9. (4) Rule 9 shall not apply to or render invalid or insufficient any mode of service in any foreign country with which a Convention has been or shall be made which is otherwise valid or sufficient according to the procedure of the Supreme Court and which is not expressly excluded by the Convention. 11. Undertaking to pay expenses of service Every request lodged under Rule 9(4) must contain an undertaking by the person making the request to be responsible personally for all expenses incurred in respect of the service requested, and on receiving due notification of the amount of those expenses to pay that amount into the Central Office forthwith. Order 11 - Service of foreign process 1A. Application This Order shall not apply to service of foreign legal process pursuant to a request from a competent authority in a foreign country which is a party to the Hague Convention. [Rule 1A inserted in Gazette 7 Feb 1992 p. 676.] 1. Definitions In this Order - official channel includes a consular or other authority of the foreign country concerned; process includes a citation. 2. Service of foreign legal process (1) This Rule applies to the service of any process required to be served in any civil or commercial proceedings pending before a court or other tribunal of a foreign country where a letter of request from such a tribunal for service on a person in Western Australia of any such process sent with the letter is received by the Principal Registrar through an official channel. (2) In order that service may be effected under this Rule the letter of request must be accompanied by a translation thereof in English, by 2 copies of the process to be served and by 2 copies of a translation of the process in English. (3) Subject to Rule 4 and to any Act which provides for the manner in which documents may be served on bodies corporate, service of the process shall be effected by leaving a copy of it and of the translation with the person to be served. (4) The Principal Registrar shall transmit through the official channel to the tribunal making the request, a certificate establishing the fact, and the date of service, or stating the reasons for which it has not been possible to effect service, and in the certificate shall certify the amount properly payable for effecting or attempting to effect service. The certificate shall be sealed with the seal of the Supreme Court for use out of the jurisdiction. [Rule 2 amended in Gazette 14 Dec 1979 p. 3869.] 3. Service under Convention (1) This Rule applies to the service of any process required to be served in any civil or commercial proceedings pending before a court or other tribunal of a foreign country with which a Convention in that behalf has been or shall be made and extended to the Commonwealth of Australia or the State of Western Australia where a letter of request from a consular or other authority of that country requesting service on a person in Western Australia of any such process sent with the letter is received by the Principal Registrar. (2) In order that service may be effected under this Rule the letter of request must be accompanied by a copy of a translation in English of the process to be served. (3) Subject to any Act which provides for the manner in which documents may be served on bodies corporate and to any special provisions of the Convention, service of the process shall be effected by leaving the original process or a copy of it, as indicated in the letter of request, and a copy of the translation with the person to be served. (4) When service of the process has been effected or if attempts to effect service have failed, the process server shall leave with the Principal Registrar an affidavit made by the person who served or attempted to serve, the process stating when, where and how he did or attempted to do so, and a statement of the costs incurred in effecting or attempting to effect service. (5) The Principal Registrar shall transmit to the consular or other authority by whom the request for service was made a certificate certifying that the process or a copy thereof as the case may be, was served on the person, at the time and in the manner specified in the certificate, or if such be the case, that service of the process could not be effected for the reason so specified, and certifying the amount properly payable for effecting or attempting to effect, service. The certificate shall be sealed with the seal of the Supreme Court for use out of the jurisdiction. [Rule 3 amended in Gazette 14 Dec 1979 p. 3869.] 4. Service to be through sheriff Service of process under the provisions of this Order shall be effected through the sheriff by the process server whom he may from time to time appoint for that purpose, or his authorised agent. 5. Consequential orders Upon the application of the State Solicitor, with the consent of the Attorney General, the Court may make all such orders for substituted service or otherwise as are necessary to give effect to the Rules of this Order. [Rule 5 amended in Gazette 19 Apr 2005 p. 1298.] Order 11A - Service of foreign judicial process originating in a country that is a party to the Hague Convention [Heading inserted in Gazette 7 Feb 1992 p. 676.] 1. Definitions In this Order - additional authority means a person being an officer of the Court designated by the Commonwealth of Australia, to be an authority in addition to the Central Authority, for the purposes of the Hague Convention; applicant, in relation to a request for service, means the competent authority that forwards that request to a Central Authority or additional authority; Central Authority means a person or body designated by the Commonwealth of Australia from time to time to be the Central Authority for the Commonwealth for the purposes of the Hague Convention; civil proceedings means any judicial proceedings in respect of civil or commercial matters, other than criminal proceedings; competent authority, in relation to a document to be served, means an authority or judicial officer competent, under the law of the Convention country in which the document originates, to forward a request for service; Convention country means a party to the Hague Convention, other than Australia; Hague Convention means the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965; request for service, in relation to a document originating in a Convention country means a request in writing, in accordance with Form 5A or Form 5B in the Second Schedule, made by a competent authority requesting that the document be served on a person in the State. [Rule 1 inserted in Gazette 7 Feb 1992 p. 676-7.] 2. Application (1) Subject to subrule (2) and Rule 3, this Order applies to the service in the State of any document originating in a Convention country and connected with civil proceedings pending before a court or other tribunal of that Convention country where a request for service (together with accompanying documents) in accordance with Rule 3 is forwarded by a competent authority - (a) to the Central Authority, which forwards it to an additional authority in the State; or (b) to an additional authority in the State. (2) Where the request for service is forwarded to an additional authority in the State in accordance with paragraph (1)(b) and (in the opinion of the additional authority) - (a) compliance with the request for service may infringe Australia's sovereignty or security; or (b) the document to which the request for service relates is not a judicial document, the additional authority shall transmit the request for service and accompanying documents to the Central Authority. (3) Where the Central Authority returns the request for service and the accompanying documents to the additional authority, this Order shall then apply to the service in the State of the document to which the request relates. [Rule 2 inserted in Gazette 7 Feb 1992 p. 677.] 3. Request for service and accompanying documents (1) This Order shall not apply to a request for service unless it is accompanied by the following documents: (a) a copy of the request for service; (b) the document to be served; (c) a copy of the document to be served; (d) a summary (in accordance with Form 5D in the Second Schedule) of the document to be served; and (e) where - (i) a document referred to in paragraph (a), (b) or (d) is not in the English language; and (ii) the request for service does not contain a request that the service be by delivery to the person to be served, if that person accepts such service voluntarily, an English translation of the document. (2) An English translation of a document referred to in paragraph (1)(e) shall, unless the additional authority otherwise directs, bear a certificate in English by the translator stating that the translation is an accurate translation of the document. [Rule 3 inserted in Gazette 7 Feb 1992 p. 677-8.] 4. Service (1) If a request for service is received by an additional authority in the State, together with the accompanying documents referred to in Rule 3, the additional authority must request the sheriff to serve the document to be served, together with such of those documents referred to in Rule 3(1)(a), (d) and (e) as accompanied the request for service (including a warning statement, if any, attached to the summary of the document to be served), in accordance with the request. (2) Subject to subrule (3) the sheriff, in giving effect to the request of the additional authority, may cause the service requested to be effected by one of the following methods of service - (a) a method of service prescribed by the law in force in the State - (i) for the service of a document of a kind corresponding to the document to be served; or (ii) where there is no such corresponding document - for the service of originating process in proceedings in the Court; or (b) by some other method requested by the applicant in the request for service, unless that method is incompatible with the law in force in the State; or (c) where the applicant has not requested a particular method of service - by delivery of the document to be served to the person requested to be served, where that person accepts the document voluntarily. (3) Rule 4 of Order 72 shall apply to the service of documents under this Order, except that the Court may make an order for substituted service of the document on the basis of an affidavit or affidavits, lodged by the sheriff with the Court made by the person or persons who attempted to serve the document specifying - (a) details of the attempts made to serve the document; and (b) the reasons which have prevented service, without an application being made to the Court in that behalf. [Rule 4 inserted in Gazette 7 Feb 1992 p. 678.] 5. Affidavit of service Where service of the document to be served has been effected or attempts to serve it have failed, the sheriff must lodge with the additional authority an affidavit made by the person who served, or attempted to serve, the document specifying - (a) where the document has been served - (i) the time, day of the week and date on which the document was served; (ii) the place where the document was served; (iii) the method of service; (iv) the person on whom the document was served; and (v) the way in which that person was identified; and (b) where the document has not been served - (i) details of the attempts made to serve the document; and (ii) the reasons which have prevented service. [Rule 5 inserted in Gazette 7 Feb 1992 p. 679.] 6. Certificate of service When an affidavit of service has been filed in accordance with Rule 5, the additional authority must - (a) complete a certificate of service, sealed with the seal of the Court, in accordance with Form 5E in the Second Schedule on the reverse side of, or attached to, the request for service; and (b) send the certificate of service directly to the applicant. [Rule 6 inserted in Gazette 7 Feb 1992 p. 679.] 7. Application of Rules generally To the extent that these Rules (other than the Rules under this Order) are inconsistent with the Rules under this Order, the first- mentioned Rules do not apply to the service of a document to which this Order applies. [Rule 7 inserted in Gazette 7 Feb 1992 p. 679.] Order 11B - Service of judicial process in a country that is a party to the Hague Convention [Heading inserted in Gazette 7 Feb 1992 p. 679.] 1. Definitions (1) In this Order - applicant, in relation to a request for service, means the Registrar who forwards that request to a foreign Central Authority or foreign additional authority; designated authority, in relation to a Convention country, means a person or body designated by the Convention country, for the purposes of Article 6 of the Hague Convention, to be an authority competent to complete a certificate of service; foreign additional authority, in relation to a Convention country, means a person or body designated by the Convention country, for the purposes of Article 18 of the Hague Convention, to be an authority in addition to a foreign Central Authority of that Convention country; foreign Central Authority, in relation to a Convention country, means a person or body designated by the Convention country from time to time to be a Central Authority for the purposes of Article 2 of the Hague Convention. (2) In this Order, Convention country, civil proceedings and Hague Convention have the same meaning as in Order 11A. [Rule 1 inserted in Gazette 7 Feb 1992 p. 679-80.] 2. Application (1) Subject to subrule (2), this Order applies to the service in a Convention country of a judicial document connected with civil proceedings pending before the Court or before another court of the State. (2) This Order does not apply where service of a document is effected by an Australian diplomatic or consular authority on a person in a Convention country. [Rule 2 inserted in Gazette 7 Feb 1992 p. 680.] 3. Records (1) The Registrar shall keep at the Registry a Register containing - (a) a current list of all Convention countries; (b) details of any objections or declarations made by any Convention country; (c) the names and addresses of - (i) the foreign Central Authority, or Central Authorities; and (ii) any additional authorities, of each Convention country; and (d) a copy of the Hague Convention. (2) A document that purports to be an extract from the Register referred to in subrule (1) shall be evidence of the matters stated in it. [Rule 3 inserted in Gazette 7 Feb 1992 p. 680.] 4. Documents required to be filed (1) A person (in this Order called the requesting party) who requires a judicial document connected with civil proceedings in Australia to be served in a Convention country must file with the Registrar the following documents - (a) an application, in accordance with subrule (2), requesting service of the document in a specified Convention country; (b) a request for service, in accordance with subrule (3), for signature by the Registrar; (c) the document to be served; (d) a summary (in accordance with Form 5D in the Second Schedule) of the document to be served; (e) a warning statement (in accordance with Form 5F in the Second Schedule attached to, or incorporated in, the summary referred to in paragraph (d)) indicating the importance of the document to be served, its legal nature, that it may affect the rights and obligations of the person on whom it is served and the possibility of legal aid or advice being available; (f) 2 copies of the documents referred to in paragraphs (b), (c), (d) and (e); and (g) where a foreign Central Authority of the country to which the request is addressed requires the document to be served, to be written in, or translated into, an official language of that country, a translation, into an official language of that country, of the documents referred to in paragraphs (b), (c), (d) and (e). (2) The application requesting service of the document shall contain a written undertaking, signed by - (a) where there is a solicitor on the record for the requesting party - that solicitor; and (b) in any other case - the requesting party; to - (c) be personally liable for all costs that are incurred in relation to the service of the document requested to be served, by - (i) the employment of a judicial officer or other person competent, under the law of the Convention country in which the document is to be served; or (ii) the use of a particular method of service; and (d) pay the amount of those costs to the Registrar within 14 days of receiving notification of the amount of those costs from the Registrar. (3) The request for service referred to in paragraph (1)(b) must - (a) be in accordance with Form 5C in the Second Schedule; and (b) be completed (except for signature) by the requesting party; and (c) state whether the requesting party wants service to be attempted where the period for entering an appearance has expired; and (d) indicate where additional information may be obtained regarding the address of the person to be served, if the person cannot be traced from the address supplied; and (e) be addressed to - (i) a foreign Central Authority; or (ii) a foreign additional authority, of the Convention country in which the person is to be served, and may state whether the requesting party requires a certificate of service that is completed by a person or body other than a foreign Central Authority or a judicial authority of the Convention country to be countersigned by a foreign Central Authority or a judicial authority of that country. (4) A translation referred to in paragraph (1)(g) shall bear a certificate (in the same language as the language used in the translation) signed by the translator stating - (a) that the translation is an accurate translation of the document; and (b) the translator's full name and address and his or her qualifications for making the translation. [Rule 4 inserted in Gazette 7 Feb 1992 p. 680-2.] 5. Procedure on filing application requesting service etc. (1) Where the documents referred to in Rule 4 are filed with the Registrar, the Registrar shall, if he or she is satisfied that the documents comply with the requirements of this Order - (a) sign the request for service; and (b) forward - (i) the request for service, duly signed; (ii) the document to be served; (iii) the documents referred to in Rule 4(1)(d) and (e) and where appropriate the documents referred to in Rule 4(1)(g); and (iv) a copy of the documents referred to in subparagraphs (i), (ii) and (iii); to - (v) where the requesting party has asked for the request to be addressed to a foreign additional authority nominated by the requesting party - that additional authority; or (vi) in any other case - a foreign Central Authority in the Convention country in which service of the document is requested. (2) Where the Registrar is not satisfied that the filed documents comply with the requirements of this Order he or she must inform the requesting party of the respects in which the documents fail to comply with those requirements. [Rule 5 inserted in Gazette 7 Feb 1992 p. 682.] 6. Procedure on receipt of certificate in respect of service (1) When a certificate in respect of service, being a certificate in accordance with Form 5E in the Second Schedule that has been completed by a foreign Central Authority or a designated authority in the Convention country in which service was requested, is received by a Registrar, the Registrar shall - (a) file the original certificate of service in the record of the proceedings in respect of which the request was made; and (b) send a copy of the certificate to the solicitor for the requesting party, or where there is no solicitor on the record for the requesting party, to the requesting party. (2) When the Registrar receives from the Convention country in which service of the document was requested a statement of costs in respect of the service requested being costs of a kind referred to in Rule 4(2) the Registrar shall send to the solicitor or requesting party, as the case may be, who gave the undertaking referred to in Rule 4(2) a notification of the amount of those costs incurred. [Rule 6 inserted in Gazette 7 Feb 1992 p. 682-3.] 7. Payment of costs (1) The solicitor or requesting party, as the case may be, must, upon receipt of notification under Rule 6(2), pay the amount of the costs to the Registrar within 14 days of receipt of the notification. (2) If the solicitor or requesting party fails to pay the costs requested within 14 days of the receipt of the notification - (a) the requesting party may not take any further action in the proceedings until those costs are paid to the Registrar under subrule (1); and (b) the Registrar may take such steps as he or she considers appropriate to enforce the undertaking for payment of those costs. [Rule 7 inserted in Gazette 7 Feb 1992 p. 683.] 8. Evidence of service Where a Registrar receives a certificate of service in accordance with Rule 6 certifying that service of the document to be served was effected on a specified date, the certificate shall be sufficient proof that - (a) service of the document was effected, in the manner specified in the certificate, on that date; and (b) if the method of service of the document was a particular method requested by the requesting party, that method is compatible with the law in force in the Convention country in which service was effected. [Rule 8 inserted in Gazette 7 Feb 1992 p. 683.] 9. Application of Rules generally To the extent that these Rules (other than the Rules under this Order) are inconsistent with the Rules under this Order, the first- mentioned Rules do not apply to the service of a document to which, under Rule 2, this Order applies. [Rule 9 inserted in Gazette 7 Feb 1992 p. 683.] Order 11C - Judgments in default of appearance where originating process is transmitted for service under the Hague Convention [Heading inserted in Gazette 7 Feb 1992 p. 683.] 1. Definitions (1) In this Order - defendant, in relation to a request for service abroad of an originating process, means the person on whom that originating process was requested to be served; originating process means a document by which proceedings are commenced; proceedings includes a claim against a third party; service abroad of an originating process means the service under Order 11B in a Convention country, of an originating process in civil proceedings pending before the Court. (2) In this Order - (a) Convention country, civil proceedings and Hague Convention have the same meaning as in Order 11A; and (b) designated authority, foreign additional authority and foreign Central Authority have the same meaning as in Order 11B. [Rule 1 inserted in Gazette 7 Feb 1992 p. 683-4.] 2. Application This Order applies to the entry of judgments in default of appearance where an originating process has been transmitted under Rule 5(1)(b) of Order 11B to a foreign Central Authority or a foreign additional authority. [Rule 2 inserted in Gazette 7 Feb 1992 p. 684.] 3. Power to enter judgment in default of appearance where a certificate of service has been filed (1) Judgment in default of appearance may not be entered unless - (a) the originating process was served - (i) by a method of service prescribed by the internal law of the Convention country in which service was effected for the service of documents in domestic actions upon persons who are within its territory; (ii) by some other method requested in the request for service, where such a method is compatible with the law in force in the Convention country in which service was effected and under which the document was actually delivered to the defendant or his residence; or (iii) by delivery to the defendant who accepted it voluntarily; and (b) the originating process was served in sufficient time to enable the defendant to defend the proceedings. (2) In subrule (1)(b), sufficient time means 42 days or such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to defend the proceedings. [Rule 3 inserted in Gazette 7 Feb 1992 p. 684.] 4. Filing of certificate of service deemed to be compliance with certain other Rules The filing of a certificate of service under Rule 6(1)(a) of Order 11B is deemed to be sufficient compliance with any Rule requiring details of service of an originating process to be indorsed on the originating process. [Rule 4 inserted in Gazette 7 Feb 1992 p. 684; amended in Gazette 26 Aug 1994 p. 4414.] 5. Power to enter judgment in default of appearance where a certificate of service has not been filed Where, in relation to a request for service abroad of an originating process, a certificate of service has not been received by the Registrar, the Court may enter judgment in default of appearance by the defendant if the Court is satisfied that - (a) the originating process was transmitted to a foreign Central Authority or foreign additional authority under Rule 5(1)(b) of Order 11B; (b) a period that the Court considers adequate in the circumstances of the particular case (being a period of not less than 6 months) has elapsed since the date on which originating process was so transmitted; and (c) every reasonable effort has been made to obtain such a certificate from the foreign Central Authority, or foreign additional authority to which the originating process was transmitted, or other competent authority of the Convention country in which service was requested to be effected. [Rule 5 inserted in Gazette 7 Feb 1992 p. 684-5.] 6. Interlocutory orders Rule 5 does not limit the Court's powers to make interlocutory, provisional or protective orders. [Rule 6 inserted in Gazette 7 Feb 1992 p. 685.] 7. Setting aside a judgment in default of appearance (1) Where a judgment has been entered under Rule 5 against a defendant who has not appeared, the Court may, on the application of the defendant, set aside the judgment if it is satisfied that the defendant - (a) without any fault on the defendant's part, did not have knowledge of the originating process in sufficient time to defend the proceedings; and (b) has a prima facie defence to the action on the merits. (2) An application to have a judgment set aside under this Rule may be brought only within such period of time after the defendant acquires knowledge of the judgment as the Court considers reasonable in the circumstances. (3) Nothing in this Rule affects any other power of the Court to set aside or vary a judgment. [Rule 7 inserted in Gazette 7 Feb 1992 p. 685.] 8. Application of Rules generally (1) Subject to subrule (2), to the extent that these Rules (other than the Rules under this Order) are inconsistent with the Rules under this Order, the first-mentioned Rules do not apply to the entry of judgments in default of appearance to which, under Rule 2, this Order applies. (2) The power of the Court to enter judgment in default of appearance under this Order against a person who is under a disability is subject to the provisions of these Rules that restrict the Court's power to enter judgment in default of appearance against such a person. [Rule 8 inserted in Gazette 7 Feb 1992 p. 685.] Order 12 - Appearance 1. Who may enter appearance (1) Subject to paragraph (2) and to Order 70 Rule 2, a defendant to an action may (whether or not he is sued as a trustee or personal representative or in any other representative capacity) enter an appearance in the action and defend it by a practitioner or in person. (2) Except as expressly provided by any Act, a defendant to such an action which is a body corporate may not enter an appearance in the action or defend it otherwise than by a practitioner. [Rule 1 amended in Gazette 7 Oct 1977 p. 3602; 22 Feb 2008 p. 634.] 2. How to enter an appearance (1) To enter an appearance, a defendant must file 2 copies of a Form No. 6 signed by - (a) the practitioner who acts for the defendant; or (b) if the defendant is self-represented, the defendant. (2) A memorandum of appearance must, in accordance with Order 71A, state - (a) the defendant's geographical address; and (b) the defendant's service details. (3) If one practitioner acts for 2 or more defendants in one action, a memorandum of appearance may relate to more than one of those defendants. [Rule 2 inserted in Gazette 22 Feb 2008 p. 634.] 3. Procedure on receipt of requisite documents On receiving the requisite documents the proper officer must in all cases affix to the copy of the memorandum of appearance an official stamp showing the date on which he received those documents, enter the appearance in the Cause Book, and then return the copy of the memorandum to the person entering the appearance and the copy memorandum so stamped shall be a certificate that the appearance was entered on the day indicated on the official stamp. [Rule 3 amended in Gazette 15 Jun 1973 p. 2247.] 4. Appearance to be served on plaintiff On the day on which a defendant enters an appearance to a writ, the defendant must comply with Order 72 rule 5 for the purposes of serving the stamped copy memorandum returned under rule 3 on the plaintiff in accordance with that Order. [Rule 4 inserted in Gazette 22 Feb 2008 p. 635.] 5. Late appearance (1) A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the Court. (2) Except as provided by paragraph (1), nothing in these Rules or any writ or order thereunder shall be construed as preventing a defendant from entering an appearance in an action after the time limited for appearing, but if a defendant enters an appearance after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time. 6. Conditional appearance (1) A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, or the service of the originating process, or notice thereof, on the ground of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this Rule. (2) The defendant shall forthwith apply to the Court to have the question raised by his conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the Court otherwise orders, become and operate as an unconditional appearance. 7. Setting aside service before appearance A defendant to an action may at any time before entering an appearance therein, serve notice of motion to set aside the writ or service of the writ, or notice of the writ on him or discharging any order giving leave to serve the writ or notice on him out of the jurisdiction. 8. Person not named may defend for land Any person not named as a defendant in a writ for the recovery of land may, by leave of the Court, appear and defend on filing an affidavit showing that he has an interest in the land which would be prejudiced or frustrated if an order for recovery were made without his being a party. 9. Person appearing to be named as defendant Where a person not named as a defendant in a writ for the recovery of land has obtained leave of the Court to appear and defend he shall in all subsequent proceedings be named as a party defendant to the action. 10. Limited defence and notice thereof (1) Any person appearing to a writ for the recovery of land may limit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty in his memorandum of appearance or in a notice intituled in the action and signed by him or his solicitor, and such notice shall be served within 4 days after appearance, and an appearance where the defence is not so limited shall be deemed an appearance to defend for the whole. (2) The notice mentioned in paragraph (1) shall be in accordance with Form No. 7. Order 13 - Default of appearance to writ 1. Affidavit of service (1) Judgment shall not be entered against a defendant under this Order unless - (a) an affidavit is filed by or on behalf of the plaintiff proving due service of the writ or notice of the writ on the defendant and due indorsement of service in accordance with Order 9 Rule 1(4); or (b) the plaintiff produces the writ indorsed by the defendant's solicitor with a statement that he accepts service of the writ on the defendant's behalf. (2) Where, in an action begun by writ, an application is made to the Court for an order affecting a party who has failed to enter an appearance, the Court hearing the application may require to be satisfied in such manner as it thinks fit that the party is in default of appearance. 2. Claim for liquidated demand (1) Where the writ is indorsed with a claim for a liquidated demand only, then, if a defendant fails to enter an appearance to the writ, the plaintiff may, after the time limited for appearance has expired, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand, and for costs. (2) For the purpose of this Rule, a claim is not a claim other than for a liquidated demand by reason only that part of it is for interest under section 32 of the Act at a rate that is not higher than that payable on judgment debts at the date of the writ. [Rule 2 inserted in Gazette 30 Nov 1984 p. 3952.] 3. Where liquidated demand judgment against several defendants Where the writ is indorsed with a claim for a liquidated demand only, and there are several defendants of whom one or more appear to the writ and another or others of them fail to appear, the plaintiff may enter final judgment as in Rule 2 against such as have not appeared and may issue execution upon such judgment without prejudice (except where the defendants are sued in the alternative) to his right to proceed with his action against such as have appeared. 4. Claim in detinue (1) Where the writ is indorsed with a claim relating to the detention of goods only, then, if a defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, at his option enter either - (a) interlocutory judgment against that defendant for the delivery of the goods or their value to be assessed and costs; or (b) interlocutory judgment against him for the value of the goods to be assessed and costs, and proceed with the action against the other defendants, if any. (2) On an interlocutory judgment under this Rule against a defendant or all the defendants, if more than one, the value of the goods shall be assessed by a Master, unless the Court otherwise directs. [Rule 4 amended in Gazette 30 Nov 1984 p. 3951.] 5. Claim for possession of land (1) Where the writ is indorsed with a claim against a defendant for possession of land only, then if that defendant fails to enter an appearance within the time limited, the plaintiff may, on producing a certificate from his solicitor, or, if he sues in person an affidavit, stating that he is not claiming any relief in the action of the nature specified in Order 62A Rule 1, enter judgment for possession of the land against that defendant and the costs, and proceed in the action against the other defendants if any. (2) Where there is more than one defendant, judgment entered under this Rule shall not be enforced against any defendant unless and until judgment for possession of the land has been entered against all the defendants. [Rule 5 amended in Gazette 10 Jan 1975 p. 50.] 6. Mixed claims Where the writ is indorsed with 2 or more of the claims mentioned in Rules 2, 3, 4, 5, and 7, and no other claim, then if a defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter against that defendant such judgment in respect of any such claim as he would be entitled to enter under those Rules if that were the only claim made by him against the defendant, and proceed with the action against the other defendants, if any. [Rule 6 amended in Gazette 15 Jun 1973 p. 2247.] 7. Claims for damages (1) Where the writ is indorsed with a claim against a defendant for unliquidated damages only, and that defendant fails to enter an appearance within the time limited for appearing, the plaintiff shall be entitled to enter interlocutory judgment against that defendant and obtain an order for directions for the assessment of damages, and proceed with the action against the other defendants, if any. (2) The plaintiff shall at least 7 days before the day fixed for the assessment of the damages serve notice of the appointment for hearing on the party against whom the judgment has been given. (3) Notwithstanding anything in Order 72 Rule 8 a notice under this Rule must be served on the party against whom the judgment has been given, unless the writ was served on that party by substituted service, and his address is unknown to the plaintiff. 8. Other cases (1) Where the plaintiff's claim against any defendant is of a description not mentioned in Rules 2, 3, 4, 5, and 7, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, and upon filing an affidavit proving due service of the writ on that defendant, and where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, apply to the Court on motion for judgment. (1A) On an application under paragraph (1) the applicant or his solicitor must produce a certificate issued by the proper officer on the day of the hearing stating that no appearance has been entered by the defendant against whom it is sought to enter judgment. (2) Where the plaintiff's claim is aforesaid, but by reason of the defendant's satisfying the claim or complying with the demands thereof, or any other like reason it has become unnecessary for the plaintiff to proceed with the action, then if the defendant fails to enter an appearance the plaintiff may, after the time limited for appearing, enter judgment with the leave of the Court against that defendant for costs. The application for such leave shall be by summons which must unless the Court otherwise orders and notwithstanding anything in Order 72 Rule 8, be served on the defendant against whom it is sought to enter judgment. [Rule 8 amended in Gazette 15 Jun 1973 p. 2247; 24 Jun 1977 p. 1914.] 9. Reference to Court in case of doubt In any case in which the plaintiff claims to be entitled under the Rules of this Order to enter final or interlocutory judgment in default of the defendant's appearance, a Master may, if any doubt or difficulty arises, direct that the application for leave to enter judgment be brought before the Court on motion or by summons. [Rule 9 amended in Gazette 30 Nov 1984 p. 3952.] 10. Setting aside judgment The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. Order 14 - Summary judgment 1. Plaintiff's application for summary judgment (1) Where in an action to which this Order applies a statement of claim has been served on a defendant and that defendant has entered an appearance, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such claim, or has no defence to such a claim or part except as to the amount of any damages claimed, within 21 days after appearance or at any later time by leave of the Court, apply to the Court for judgment against that defendant. (2) This Order applies to every action begun by writ other than a probate or admiralty action. [Rule 1 amended in Gazette 5 Jun 1992 p. 2279; 28 Oct 1996 p. 5675.] 2. Application to be by summons (1) An application under Rule 1 shall be made by summons supported by an affidavit verifying the facts on which the claim or the part of the claim to which the application relates is based, and stating that in the deponent's belief there is no defence to that claim or part thereof, as the case may be, or no defence except as to the amount of any damages claimed. (2) Unless the Court otherwise directs, an affidavit for the purposes of this Rule may contain statements of information or belief with the sources and grounds thereof. (3) The summons and a copy of the affidavit in support and of any exhibits therein referred to shall be served on the defendant not less than 7 days before the return day of the summons. [Rule 2 amended in Gazette 3 Oct 1975 p. 3769.] 3. Judgment may be given for plaintiff (1) On the hearing of an application under Rule 1 unless the Court dismisses the application, or the defendant satisfies the Court with respect to the claim, or the part of the claim, to which the application relates that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against the defendant on that claim or part thereof as may be just, having regard to the nature of the remedy or relief claimed. (2) The Court may, by order and subject to such conditions, if any, as may be just, stay execution of any judgment given against a defendant under this Rule until after the trial of any counterclaim made or raised by the defendant in the action. 4. Leave to defend (1) A defendant may show cause against an application under Rule 1 by affidavit or otherwise to the satisfaction of the Court. (2) Rule 2(2) applies mutatis mutandis for the purposes of this Rule. (3) The Court may give a defendant against whom such an application is made leave to defend the action with respect to the claim, or the part of a claim to which the application relates, either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit. (4) On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary, or other similar officer thereof, or any person purporting to act in such capacity - (a) to produce any document; or (b) if it appears to the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath. [5. Deleted in Gazette 28 Oct 1996 p. 5675.] 6. Summary judgment on counterclaim (1) Where a defendant in an action begun by writ has served a counterclaim on the plaintiff, then subject to paragraph (3) the defendant may, on the ground that the plaintiff has no defence to a claim made in the counterclaim, or to a particular part of such claim, apply to the Court for judgment against the plaintiff on that claim or part. (2) Rules 2, 3 and 4 apply in relation to an application under this Rule as they apply in relation to an application under Rule 1, but with the following modifications, that is to say - (a) references to the plaintiff and defendant shall be construed as references to defendant and plaintiff respectively; (b) the words in Rule 3(2) "any counterclaim made or raised by the defendant in" shall be omitted; and (c) the reference in Rule 4(3) to the action shall be construed as a reference to the counterclaim to which the application under this Rule relates. (3) This Rule shall not apply to a counterclaim which includes any such claim as is referred to in Rule 1(2). 7. Directions Where the Court - (a) gives leave (whether conditional or unconditional) to defend any action or counterclaim, as the case may be, with respect to a claim or a part of a claim; or (b) gives judgment for a plaintiff or a defendant on a claim or a part of a claim, but also orders that execution of the judgment be stayed pending the trial of a counterclaim or of the action, as the case may be, the Court may give all such directions as to the further conduct of the action as might be given on a summons for directions under Order 29, and may direct that the affidavit filed by the defendant or the plaintiff, as the case may be, under this Order, shall serve in lieu of defence and may order the action to be forthwith set down for trial, and may define the issues that are to be tried. 8. Costs (1) If the plaintiff makes an application under Rule 1 and the case is not within this Order, or if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, the Court may dismiss the application with costs, and may require the costs to be paid by the plaintiff forthwith. (2) The Court shall have the same power to dismiss an application under Rule 6 as it has under paragraph (1) to dismiss an application under Rule 1, and that paragraph shall apply accordingly with the necessary modifications. [Rule 8 amended in Gazette 15 Jun 1973 p. 2248.] 9. Right to proceed with residue of action or counterclaim (1) Where on an application under Rule 1 the plaintiff obtains judgment on a claim or a part of a claim against any defendant, he may proceed with the action as respects any other claim, or as respects the remainder of the claim or against any other defendant. (2) Where on an application under Rule 6 a defendant obtains judgment on a claim or part of a claim made in a counterclaim against the plaintiff, he may proceed with the counterclaim as respects any other claim or as respects the remainder of the claim or against any other defendant to the counterclaim. 10. Judgment for delivery of specific chattel Where the claim to which an application under Rule 1 or Rule 6 relates is for the delivery up of a specific chattel, and the Court gives judgment under this Order for the applicant, the Court shall have the same power to order the party against whom judgment is given to deliver up the chattel without giving him an option to retain it on paying the assessed value thereof as if the judgment had been given after trial. 11. Relief from forfeiture A tenant shall have the same right to relief after a judgment under this Order for the recovery of land on the ground of forfeiture as if the judgment had been given after trial. 12. Setting aside judgment Any judgment given against a party who does not appear at the hearing of an application under Rule 1 or Rule 6 may be set aside or varied by the Court on such terms as it thinks just. [Order 15 deleted in Gazette 28 Oct 1996 p. 5675.] Order 16 - Summary judgment on application of defendant 1. Defendant may apply for summary judgment (1) Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order - (a) that judgment be entered for the defendant with or without costs; or (b) that the plaintiff shall proceed to trial without pleadings, or if all parties consent, may dispose of the action finally and without appeal in a summary manner. (2) An application under paragraph (1) shall be made by summons supported by affidavit verifying the facts upon which the application is based. (3) Unless the Court otherwise directs, an affidavit for the purposes of this Rule may contain statements of information or belief with the sources and grounds thereof. (4) The summons and a copy of the affidavit in support and its annexures, if any, shall be served on the plaintiff not less than 7 days before the return day of the summons. [Rule 1 amended in Gazette 14 Dec 1979 p. 3869; 5 Jun 1992 p. 2279- 80.] 2. Plaintiff may show cause (1) The plaintiff may show cause against such application by affidavit. (1a) Unless the Court otherwise directs, an affidavit for the purposes of this Rule may contain statements of information or belief with the sources and grounds thereof. Attendance for examination (2) The Court may if it thinks fit, order the plaintiff or the defendant or in the case of a corporation any officer thereof to attend and be examined and cross-examined upon oath or to produce any papers, books, or documents, or copies of, or extracts therefrom. [Rule 2 amended in Gazette 14 Dec 1979 p. 3869; 5 Jun 1992 p. 2280.] 3. Directions If the Court directs that the action shall proceed to trial, it may give all such directions as to the further conduct of the action as might be given on a summons for directions under Order 29 and may order that the action be forthwith set down for trial. [Rule 3 amended in Gazette 14 Dec 1979 p. 3869.] 4. Judgment may be set aside or varied Any judgment given against a party who does not appear at the hearing of the application under Rule 1 may be set aside or varied by the Court on such terms as it thinks just. [Rule 4 inserted in Gazette 5 Jun 1992 p. 2280.] Order 17 - Interpleader 1. Relief by way of interpleader Relief by way of interpleader may be granted by the Court - (a) where the person seeking relief (called the applicant) is under liability - (i) to yield up or give possession of any land; or (ii) to perform a contract; or (iii) for any debt or money; or (iv) to yield up goods or chattels or any document, muniment of title, or security, in respect of which he is or expects to be sued by 2 or more parties (called the claimants) making adverse claims. [(b) deleted] [Rule 1 amended in Gazette 21 Feb 2007 p. 536.] 2. Mode of application (1) An application for relief under this Order must be made by originating summons unless made in a pending action, in which case it must be made by summons in the action. (2) No appearance need be entered to an originating summons under this Rule. (3) Subject to paragraph (4) a summons under this Rule must be supported by evidence that the applicant - (a) claims no interest in the subject-matter in dispute other than for charges and costs; (b) does not collude with any of the claimants to that subject- matter; and (c) is willing to dispose of any property involved in such manner as the Court or a Judge may direct. [Rule 2 amended in Gazette 21 Feb 2007 p. 536.] 3. Time for application by defendant Where the applicant is a defendant, application for relief may be made at any time after the service of the writ. 4. Stay of proceedings If the application is made by a defendant the Court may stay all further proceedings. 5. Order on summons If the claimants appear in pursuance of the summons the Court or a Judge may order either that any claimant be made a defendant in any action already commenced in respect of the subject-matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may give directions as to which of the claimants is to be plaintiff and which defendant, and as to the method of trial and such other directions as may be necessary in the circumstances. 6. Summary determination The Court may, with the consent of both claimants or on the request of any claimant dispose of the merits of the claims and decide the same in a summary manner. [Rule 6 amended in Gazette 21 Feb 2007 p. 536.] 7. Where question of law only Where the question is one of law, and the facts are not in dispute, the Court may either decide the question without directing the trial of an issue, or order that a special case be stated for the opinion of the Court. If a special case is stated Order 31 shall, as far as applicable, apply. 8. Claimant failing to appear etc. If a claimant, having been duly served with a summons calling on him to appear and maintain or relinquish his claim does not appear in pursuance of the summons, or, having appeared, neglects or refuses to comply with any order made after his appearance, the Court may make an order declaring him and all persons claiming under him barred against the applicant and persons claiming under him. 9. Power to order sale of goods Whenever it appears desirable from the nature of the subject matter or the parties agree, the Court or a Judge may order the sale of the whole or any part thereof and direct the application of the proceeds according to the rights of the parties as determined on the interpleader proceedings. 10. Discovery etc. and trial The Rules relating to discovery, interrogatories and inspection, and the trial of actions shall apply to interpleader issues with the necessary modifications. 11. One order where several causes pending Where in any interpleader proceeding it is necessary or expedient to make one order in several causes or matters, such order may be made by the Court before whom the proceedings may be taken, and shall be entitled in such causes or matters; and any such order (subject to the right of appeal) shall be binding on the parties in all such causes or matters. [12-14. Deleted in Gazette 21 Feb 2007 p. 536.] 15. Other powers of the Court Subject to the foregoing Rules of this Order, the Court may in and for the purposes of any interpleader proceedings make such order as to costs or any other matter as it thinks just. Order 18 - Causes of action, counterclaims and parties 1. Joinder of causes of action (1) Subject to Rule 5(1), a plaintiff may in one action claim relief against the same defendant in respect of more than one cause of action - (a) if the plaintiff claims, and the defendant is alleged to be liable, in the same capacity in respect of all the causes of action; or (b) if the plaintiff claims or the defendant is alleged to be liable in the capacity of executor or administrator of an estate in respect of one or more of the causes of action and in his personal capacity but with reference to the same estate in respect of all the others; or (c) with the leave of the Court. (2) An application for leave under this Rule must be made ex parte by affidavit before the issue of the writ and the affidavit must state the grounds of the application. 2. Counterclaim against plaintiff (1) Subject to Rule 5(2), a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counterclaim in respect of that matter; and where he does so he must add the counterclaim to his defence. (2) Rule 1 shall apply in relation to a counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant. (3) A counterclaim may be proceeded with notwithstanding that judgment is given for the plaintiff in the action or that the action is stayed, discontinued or dismissed. (4) Where a defendant establishes a counterclaim against the claim of the plaintiff and there is a balance in favour of one of the parties, the Court may give judgment for the balance, so, however, that this provision shall not be taken as affecting the Court's discretion with respect to costs. 3. Counterclaim against additional parties (1) Where a defendant to an action who makes a counterclaim against the plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the plaintiff in respect of the subject-matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject-matter of the action then, subject to Rule 5(2), he may join that other person as a party against whom the counterclaim is made. (2) Where a defendant joins a person as a party against whom he makes a counterclaim, he must add that person's name to the title of the action and serve on him a copy of the counterclaim; and a person on whom a copy of a counterclaim is served under this paragraph shall, if he is not already a party to the action, become a party to it as from the time of service with the same rights in respect of his defence to the counterclaim and otherwise as if he had been duly sued in the ordinary way by the party making the counterclaim. (3) A defendant who is required by paragraph (2) to serve a copy of the counterclaim made by him on any person who before service is already a party to the action must do so within the period within which by virtue of Order 20 Rule 4, he must serve on the plaintiff the defence to which the counterclaim is added. (4) Where by virtue of paragraph (2) a copy of a counterclaim is required to be served on a person who is not already a party to the action, the following provisions of these Rules, namely, Order 9 except Rule 1(4), Order 10 except Rule 3, Order 12 and Order 13 shall, subject to the last foregoing paragraph, apply in relation to the counterclaim and the proceedings arising from it as if - (a) the counterclaim were a writ and the proceedings arising from it an action; and (b) the party making the counterclaim were a plaintiff and the party against who it is made a defendant in that action. (5) A copy of a counterclaim required to be served on a person who is not already a party to the action must be indorsed with a notice, in Form No. 10, addressed to that person. [Rule 3 amended in Gazette 22 Feb 2008 p. 635.] 4. Joinder of parties (1) Subject to Rule 5(1), 2 or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where - (a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and (b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions. (2) Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any Act and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this paragraph, be made a defendant. This paragraph shall not apply to a probate action. (3) Where relief is claimed in an action against a defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant to the action; but where persons are jointly, but not severally, liable under a contract and relief is claimed against some but not all of those persons in an action in respect of that contract, the Court may, on the application of any defendant to the action, by order stay proceedings in the action until the other persons so liable are added as defendants. 5. Court may order separate trials etc. (1) If claims in respect of 2 or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if 2 or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient. (2) If it appears on the application of any party against whom a counterclaim is made that the subject-matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient. 6. Misjoinder and nonjoinder of parties (1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. (2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application - (a) order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party; (b) order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party, but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised. (3) An application by any person for an order under paragraph (2) adding him as a defendant must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter. 7. Change of parties by reason of death etc. (1) Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy. (2) Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first-mentioned party. An application for an order under this paragraph may be made ex parte. (3) An order may be made under this Rule for a person to be made a party to a cause or matter notwithstanding that he is already a party to it on the other side of the record, or on the same side but in a different capacity; but - (a) if he is already a party on the other side, the order shall be treated as containing a direction that he shall cease to be a party on that other side; and (b) if he is already a party on the same side but in another capacity, the order may contain a direction that he shall cease to be a party in that other capacity. (4) The person on whose application an order is made under this Rule must procure the order to be noted in the Cause Book and after the order has been so noted that person must, unless the Court otherwise directs, serve the order on every other person who is a party to the cause or matter or who becomes or ceases to be a party by virtue of the order and serve with the order on any person who becomes a defendant a copy of the writ or originating summons by which the cause or matter was begun. (5) Any application to the Court by a person served with an order made ex parte under this Rule for the discharge or variation of the order must be made within 14 days after the service of the order on that person. 8. Provisions consequential on making of order under Rule 6 or 7 (1) Where an order is made under Rule 6, the writ by which the action in question was begun must be amended accordingly and must be indorsed with - (a) a reference to the order in pursuance of which the amendment is made; and (b) the date on which the amendment is made, and the amendment must be made within such period as may be specified in the order or, if no period is so specified, within 14 days after the making of the order. (2) Where by an order under Rule 6 a person is to be made a defendant, the rules as to service of a writ of summons shall apply accordingly to service of the amended writ on him, but before serving the writ on him the person on whose application the order was made must procure the order to be noted in the Cause Book. (3) Where by an order under Rule 6 or 7 a person is to be made a defendant, the rules as to entry of appearance shall apply accordingly to entry of appearance by him, subject, in the case of a person to be made a defendant by an order under Rule 7, to the modification that the time limited for appearing shall begin with the date on which the order is served on him under Rule 7(4) or, if the order is not required to be served on him, with the date on which the order is noted in the Cause Book. (4) Where by an order under Rule 6 or 7 a person is to be added as a party or is to be made a party in substitution for some other party, that person shall not become a party until - (a) where the order is made under Rule 6, the writ has been amended in relation to him under this Rule and (if he is a defendant) has been served on him; or (b) where the order is made under Rule 7, the order has been served on him under Rule 7(4) or, if the order is not required to be served on him, the order has been noted in the Cause Book, and where by virtue of the foregoing provision a person becomes a party in substitution for some other party, all things done in the course of the proceedings before the making of the order shall have effect in relation to the new party as they had in relation to the old, except that entry of appearance by the old party shall not dispense with entry of appearance by the new party. 9. Failure to proceed after death of party (1) If after the death of a plaintiff or defendant in any action the cause of action survives, but no order under Rule 7 is made substituting as plaintiff any person in whom the cause of action vests or, as the case may be, the personal representatives of the deceased defendant, the defendant or, as the case may be, those representatives may apply to the Court for an order that unless the action is proceeded with within such time as may be specified in the order the action shall be struck out as against the plaintiff or defendant, as the case may be, who has died; but where it is the plaintiff who has died, the Court shall not make an order under this Rule unless satisfied that due notice of the application has been given to the personal representatives (if any) of the deceased plaintiff and to any other interested persons who, in the opinion of the Court, should be notified. (2) Where in any action a counterclaim is made by a defendant, this Rule shall apply in relation to the counterclaim as if the counterclaim were a separate action and as if the defendant making the counterclaim were the plaintiff and the person against whom it is made a defendant. 10. Actions for possession of land (1) Without prejudice to Rule 6, the Court may at any stage of the proceedings in an action for possession of land order any person not a party to the action who is in possession of the land (whether in actual possession or by a tenant) to be added as a defendant. (2) An application by any person for an order under this Rule may be made ex parte, supported by an affidavit showing that he is in possession of the land in question and if by a tenant, naming him. (3) A person added as a defendant by an order under this Rule must serve a copy of the order on the plaintiff and must enter an appearance in the action within such period, if any, as may be specified in the order or, if no period is so specified, within 7 days after the making of the order, and the rules as to entry of appearance shall apply accordingly to entry of appearance by him. 11. Relator actions (1) Before the name of any person is used in any action as a relator, that person must give to his solicitor a written authorisation so to use his name and the authorisation must be filed. (2) In all relator actions the plaintiff shall file with the writ or other originating process, the consent of the Attorney General to the action being brought. 12. Representative proceedings (1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in Rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. (2) At any stage of proceedings under this Rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued, to represent all, or all except one or more, of those persons in the proceedings; and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order under Rule 6 adding that person as a defendant. (3) A judgment or order given in proceedings under this Rule shall be binding on all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court. (4) An application for the grant of leave under paragraph (3) must be made by summons which must be served personally on the person against whom it is sought to enforce the judgment or order. (5) Notwithstanding that a judgment or order to which any such application relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability. (6) The Court hearing an application for the grant of leave under paragraph (3) may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in an action may be tried and determined. 13. Representation of interested persons who cannot be ascertained etc. (1) In any proceedings concerning - (a) the administration of the estate of a deceased person; or (b) property subject to a trust; or (c) the construction of a written instrument, including a statute or a regulation, rule or by-law made under a statute, the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in paragraph (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings. (2) The conditions for the exercise of the power conferred by paragraph (1) are as follows - (a) that the person, the class or some member of the class, cannot be ascertained or cannot readily be ascertained; (b) that the person, class or some member of the class, though ascertained, cannot be found; (c) that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purpose of saving expense. (3) Where in any proceedings to which paragraph (1) applies, the Court exercises the power conferred by that paragraph, a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall be binding on the person or class represented by the person or persons so appointed. (4) Where, in any such proceedings, a compromise is proposed and 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) but - (a) there is some other person in the same interest before the Court who assents to the compromise or on whose behalf the Court sanctions the compromise; or (b) the absent persons are represented by a person appointed under paragraph (1) who so assents, the Court, 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, and they shall be bound accordingly except where the order has been obtained by fraud or non-disclosure of material facts. 14. Representation of beneficiaries by trustees etc. (1) Any proceedings, including proceedings to enforce a security by foreclosure or otherwise, may be brought by or against trustees, executors or administrators in their capacity as such without joining any of the persons having a beneficial interest in the trust or estate, as the case may be; and any judgment or order given or made in those proceedings shall be binding on those persons unless the Court in the same or other proceedings otherwise orders on the ground that the trustees, executors or administrators, as the case may be, could not or did not in fact represent the interests of those persons in the first-mentioned proceedings. (2) Paragraph (1) is without prejudice to the power of the Court to order any person having such an interest as aforesaid to be made a party to the proceedings or to make an order under Rule 13. 15. Representation of deceased person interested in proceedings (1) Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings. (2) Before making an order under this Rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit. 16. Declaratory judgment No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed. 17. Conduct of proceedings The Court may give the conduct of any action, inquiry or other proceeding to such person as it thinks fit. Order 19 - Third party and similar proceedings 1. Third party notice (1) Where in any action a defendant who has entered an appearance claims against any person not already a party to the action (in this Order called the third party) - (a) that he is entitled to contribution or indemnity; or (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 any question or issue relating to or connected with the original subject-matter of the action 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 also as between either or both of them and the third party, then, subject to paragraph (2), the defendant may issue a notice in Form No. 11 or 12, whichever is appropriate (in this Order referred to as a third party notice), containing a statement of the nature of the claim made against him and, as the case may be, either of the nature and grounds of the claim made by him or of the question or issue required to be determined. (2) A defendant to an action may not issue a third party notice without the leave of the Court unless he issues the notice before serving his defence on the plaintiff. (3) Where a third party notice is served on the person against whom it is issued, he shall as from the time of service be a party to the action with the same rights in respect of his defence against any claim made against him in the notice and otherwise as if he had been duly sued in the ordinary way by the defendant by whom the notice is issued. 2. Application for leave to issue third party notice (1) An application for leave to issue a third party notice may be made ex parte but the court may direct a summons for leave to be issued. (2) An application for leave to issue a third party notice must be supported by an affidavit stating - (a) the nature of the claim made by the plaintiff in the action; (b) the stage which proceedings in the action have reached; (c) the nature of the claim made by the applicant or particulars of the question or issue required to be determined, as the case may be, and the facts on which the proposed third party notice is based; and (d) the name and address of the person against whom the third party notice is to be issued. 3. Issue and service of, and entry of appearance to, third party notice (1) The order granting leave to issue a third party notice may contain directions as to the period within which the notice is to be issued. (2) There must be served with every third party notice a copy of the writ by which the action was begun and of the pleadings (if any) served in the action. (3) Subject to the foregoing provisions of this Rule, the following provisions of these Rules, namely, Order 5 Rules 7, 8 and 11, Order 9 except Rule 1(4), Order 10 except Rule 3 and Order 12, shall apply in relation to a third party notice and to the proceedings begun thereby as if - (a) the third party notice were a writ and the proceedings begun thereby an action; and (b) the defendant issuing the third party notice were a plaintiff and the person against whom it is issued a defendant in that action. [Rule 3 amended in Gazette 7 Oct 1977 p. 3602.] 4. Third party directions (1) If the third party enters an appearance, the defendant who issued the third party notice must, within 10 days of the appearance of the third party, by summons to be served on all the other parties to the action, apply to the Court for directions. (2) If a summons is not served on the third party under paragraph (1), the third party may, not earlier than 7 days after entering an appearance, by summons to be served on all the other parties to the action, apply to the Court for directions or for an order to set aside the third party notice. (3) On an application for directions under this Rule the Court may - (a) if the liability of the third party to the defendant who issued the third party notice is established on the hearing, order such judgment as the nature of the case may require to be entered against the third party in favour of the defendant; or (b) order any claim, question or issue stated in the third party notice to be tried in such manner as the Court may direct; or (c) dismiss the application and terminate the proceedings on the third party notice, and may do so either before or after any judgment in the action has been signed by the plaintiff against the defendant. (4) On an application for directions under this Rule the Court may give the third party leave to defend the action, either alone or jointly with any defendant, upon such terms as may be just, or to appear at the trial and to take such part therein as may be just, and generally may make such orders and give such directions as appear to the Court proper for having the rights and liabilities of the parties most conveniently determined and enforced and as to the extent to which the third party is to be bound by any judgment or decision in the action. (5) The Court may at any time vary or rescind any order made or direction given under this Rule. [Rule 4 amended in Gazette 26 Aug 1994 p. 4410.] 5. Default of third party etc. (1) If a third party does not enter an appearance or, having been ordered to serve a defence, fails to do so - (a) he shall be deemed to admit any claim stated in the third party notice and shall be bound by any judgment (including judgment by consent) or decision in the action in so far as it is relevant to any claim, question or issue stated in that notice; and (b) the defendant by whom the third party notice was issued may, if judgment in default is given against him in the action, at any time after satisfaction of that judgment and, with the leave of the Court before satisfaction thereof, enter judgment against the third party in respect of any contribution or indemnity claimed in the notice, and, with the leave of the Court, in respect of any other relief or remedy claimed therein. (2) If a third party or the defendant by whom a third party notice was issued makes default in serving any pleading which he is ordered to serve, the Court may, on the application by summons of that defendant or the third party, as the case may be, order such judgment to be entered for the applicant as he is entitled to on the pleadings or may make such other order as may appear to the Court necessary to do justice between the parties. (3) The Court may at any time set aside or vary a judgment entered under paragraph (1)(b) or paragraph (2) on such terms (if any) as it thinks just. 6. Setting aside third party proceedings Proceedings on a third party notice may, at any stage of the proceedings, be set aside by the Court. 7. Judgment between defendant and third party (1) Where in any action a defendant has served a third party notice, the Court may at or after the trial of the action or, if the action is decided otherwise than by trial, on an application by summons or motion, order such judgment as the nature of the case may require to be entered for the defendant against the third party or for the third party against the defendant. (2) Where in an action judgment is given against a defendant and judgment is given for the defendant against a third party, execution shall not issue against the third party except as to costs, without the leave of the Court until the judgment against the defendant has been satisfied at least to the extent of the third party liability which he claims to enforce under the judgment. 8. Claims and issues between a defendant and some other party (1) Where in any action a defendant who has entered an appearance - (a) claims against a person who is already a party to the action any contribution or indemnity; or (b) claims against such a person 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) requires that any question or issue relating to or connected with the original subject-matter of the action should be determined not only as between the plaintiff and himself but also as between either or both of them and some other person who is already a party to the action, then, subject to paragraph (2), the defendant may, without leave, issue and serve on that person a notice containing a statement of the nature and grounds of his claim or, as the case may be, of the question or issue required to be determined. (2) Where a defendant makes such a claim as is mentioned in paragraph (1) and that claim could be made by him by counterclaim in the action, paragraph (1) shall not apply in relation to the claim. (3) No appearance to such a notice shall be necessary if the person on whom it is served has entered an appearance in the action or is a plaintiff therein, and the same procedure shall be adopted for the determination between the defendant by whom, and the person on whom, such a notice is served of the claim, question or issue stated in the notice as would be appropriate under this Order if the person served with the notice were a third party and (where he has entered an appearance in the action or is a plaintiff) had entered an appearance to the notice. (4) Rule 4(2) shall have effect in relation to proceedings on a notice issued under this Rule as if for the words "7 days after entering an appearance" there were substituted the words "14 days after service of the notice on him". 9. Claims by third and subsequent parties (1) Where a defendant has served a third party notice and the third party makes such a claim or requirement as is mentioned in Rule 1 or Rule 8, this Order shall, with the modification mentioned in paragraph (2) and any other necessary modifications, apply as if the third party were a defendant; and similarly where any further person to whom by virtue of this Rule this Order applies as if he were a third party makes such a claim or requirement. (2) The modification referred to in paragraph (1) is that paragraph (3) shall have effect in relation to the issue of a notice under Rule 1 by a third party in substitution for Rule 1(2). (3) A third party may not issue a notice under Rule 1 without the leave of the Court unless he issues the notice before the expiration of 14 days after the time limited for appearing to the notice issued against him. 10. Offer of contribution If, before the trial of an action, a party to the action who, either as a third party or as one of 2 or more tortfeasors liable in respect of the same damage, stands to be held liable in the action to another party to contribute towards any debt or damages which may be recovered against that other party in the action, makes (without prejudice to his defence) a written offer to that other party to contribute to a specified extent to the debt or damages, then, notwithstanding that he reserves the right to bring the offer to the attention of the Judge at the trial, the offer shall not be brought to the attention of the Judge until after all questions of liability and amount of debt or damages have been decided. 11. Counterclaim by defendant Where in any action a counterclaim is made by a defendant, the foregoing provisions of this Order shall apply in relation to the counterclaim as if the subject-matter of the counterclaim were the original subject-matter of the action, and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant. 12. Costs The Court may decide all 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 may require. Order 20 - Pleadings 1. Service of Statement of Claim Unless the Court gives leave to the contrary or a Statement of Claim is indorsed on the writ, the plaintiff must serve a statement of claim on the defendant or, if there are 2 or more defendants, on each defendant, and must do so either when the writ or notice of the writ, is served on that defendant or at any time after service of the writ or notice but before the expiration of 14 days after that defendant enters an appearance. 2. Statement of Claim (1) A Statement of Claim must state specifically the relief or remedy which the plaintiff claims, but costs need not be specifically claimed. (2) A Statement of Claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned. (3) Subject to paragraph (2) a plaintiff may in his Statement of Claim alter, modify or extend any claim made by him in the indorsement of the writ without amending the indorsement. (4) Except when indorsed on the writ every Statement of Claim must bear on its face a statement of the date on which the writ in the action was issued. 3. Pleadings etc. to be filed before service (1) Subject to paragraph (2) the original of every Statement of Claim, defence, set off, or counterclaim, and of every reply or subsequent pleading, and of any further particulars of any pleading, a copy of which is required by these Rules to be served on one party by another, must be filed before the copy is served, and the copy must be served within 24 hours after filing the original. (2) This Rule does not apply where the Statement of Claim is indorsed on the writ. 4. Service of defence (1) Subject to paragraph (2), a defendant who enters an appearance in, and intends to defend, an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for appearing or after the Statement of Claim is served on him, whichever is the later. (2) If a summons under Order 14 Rule 1 is served on a defendant before he serves his defence, paragraph (1) shall not have effect in relation to him unless by the order made on the summons he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within 14 days after the making of the order or within such other period as may be specified therein. 5. Service of reply and defence to counterclaim (1) A plaintiff on whom a defendant serves a defence must serve a reply on that defendant if it is needed for compliance with Rule 9, and if no reply is served, Rule 15(1) will apply. (2) A plaintiff on whom the defendant serves a counterclaim must, if he intends to defend it, serve on that defendant a defence to counterclaim. (3) Where a plaintiff serves both a reply and a defence to counterclaim on any defendant, he must include them in the same document. (4) A reply to any defence must be served by the plaintiff before the expiration of 14 days after the service on him of that defence, and a defence to counterclaim must be served by the plaintiff before the expiration of 14 days after the service on him of the counterclaim to which it relates. 6. Pleadings subsequent to reply No pleading subsequent to a reply or a defence to counterclaim shall be served except with the leave of the Court. 7. Pleadings: formal requirements (1) Every pleading in an action must bear on its face - (a) the year in which the writ in the action was issued and the number of the action; (b) the title of the action; (c) the description of the pleading; and (d) the date on which it was filed. (2) Every pleading must, if necessary, be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph. (3) Dates, sums and other numbers must be expressed in a pleading in figures and not in words. (4) Every pleading of a party must be indorsed - (a) where the party sues or defends in person, with his name and address for service; (b) in any other case, with the name or firm and address for service of the solicitor by whom it was filed and also (if the solicitor is the agent of another) the name or firm and business address of his principal. (5) Every pleading of a party must be signed by counsel, if settled by him, and, if not, by the party's solicitor or by the party, if he sues or defends in person. (5A) It shall be a sufficient compliance with paragraph (5) if the pleading is signed by a solicitor who - (a) is employed by the party's solicitor; (b) has settled the pleading; (c) is authorised to sign the pleading on his principal's behalf; and (d) adds his own signature after the name of his firm. (6) The date of service of a pleading must be stated on every copy which is served. [Rule 7 amended in Gazette 15 Jun 1973 p. 2248.] 8. Facts, not evidence, to be pleaded (1) Subject to the provisions of this Rule, and Rules 11, 12 and 13 every pleading must 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 those facts are to be proved, and the statement must be as brief as the nature of the case admits. (2) Without prejudice to paragraph (1), the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material. (3) A party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleading. (4) A statement that a thing has been done or that an event has occurred, being a thing or event the doing or occurrence of which, as the case may be, constitutes a condition precedent necessary for the case of a party is to be implied in his pleading. 9. Matters which must be specifically pleaded (1) A party must in any pleading subsequent to a Statement of Claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality - (a) which he alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading. (2) Without prejudice to paragraph (1), a defendant to an action for possession of land must plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient. (3) A claim for exemplary damages or a claim for aggravated damages must be specifically pleaded together with the facts on which the party pleading relies. (4) Where the plaintiff intends to claim interest, he must claim it specifically; and the Statement of Claim must - (a) identify that part of the claim or the components of the damages to which the claim for interest relates; (b) where the claim for interest is founded on a contract, contain a statement in summary form of the material facts relied on; (c) where the claim for interest is pursuant to a statute - (i) identify the statutory provision; (ii) specify the rate claimed; and (iii) state the date or dates from which interest is claimed. [Rule 9 amended in Gazette 3 Oct 1975 p. 3769; 31 Mar 1983 p. 1090.] 10. Matter may be pleaded whenever arising Subject to Rules 8(1) and 11, a party may in any pleading plead any matter which has arisen at any time, whether before or since the issue of the writ. 11. Departure (1) A party shall not in any pleading make any allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his. (2) Paragraph (1) shall not be taken as prejudicing the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative. 12. Points of law may be pleaded A party may by his pleading raise any point of law. 13. Particulars of pleading (1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words - (a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and (b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies. (2) Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed 3 folios, they must be set out in a separate document referred to in the pleading and the pleading must state whether the document has already been served and, if so, when, or is to be served with the pleading. (3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just. (4) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party - (a) where he alleges knowledge, particulars of the facts on which he relies; and (b) where he alleges notice, particulars of the notice. (5) An order under this Rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason. (6) An order under this Rule shall not be made unless a written request for the particulars required by the applicant has been filed and served within 30 days of the service of the pleadings or such other time as the Court may allow. (7) The party at whose instance particulars have been served under an order of the Court shall, unless the order otherwise provides, have the same length of time for pleading after the service of the particulars that he had at the return of the summons. Save as in this Rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time. [Rule 13 amended in Gazette 26 Aug 1994 p. 4410.] 13A. Particulars in defamation actions (1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of that sense. (2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and 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 must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true. (3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice; but where the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred. (4) This Rule applies in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made were the defendant. [Rule 13A inserted in Gazette 23 Sep 1983 p. 3797.] 14. Admissions and denials (1) Subject to paragraph (4), any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under Rule 15 operates as a denial of it. (2) A traverse may be made either by a denial or by a statement of non-admission. (3) Subject to paragraph (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement of non- admission of them, is not a sufficient traverse of them. (4) Any allegation that a party has suffered damage and any allegation as to the amount of damages is deemed to be traversed unless specifically admitted. 15. Denial by joinder of issue (1) If there is no reply to a defence, there is an implied joinder of issue on that defence. (2) Subject to paragraph (3) - (a) there is at the close of pleadings an implied joinder of issue on the pleading last served; and (b) a party may in his pleading expressly join issue on the next preceding pleading. (3) There can be no joinder of issue, implied or express, on a statement of claim or counterclaim. (4) A joinder of issue operates as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation. 16. Defence of tender Where in any action a defence of tender before action is pleaded, the defendant must pay into court in accordance with Order 24 the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until payment into court has been made. 17. Defence of set-off Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set-off against the plaintiff's claim, whether or not it is also added as a counterclaim. 18. Counterclaim and defence to counterclaim Without prejudice to the general application of this Order to a counterclaim and a defence to counterclaim, or to any provision thereof which applies to either of those pleadings specifically - (a) Rule 2(1) shall apply to a counterclaim as if the counterclaim were a statement of claim and the defendant making it a plaintiff; (b) Rules 9(2), 16, and 17 shall, with the necessary modifications apply to a defence to counterclaim as they apply to a defence. 19. Striking out pleadings and indorsements (1) The Court may at any stage of the proceedings, subject to paragraph (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that - (a) it discloses no reasonable cause of action or defence, as the case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under paragraph (1)(a). (3) Subject to paragraph (4) an application for an order under paragraph (1) must - (a) be made within 21 days of the service of any pleading, or amended pleading, or writ to which the application refers; (b) where the application is to strike out certain pleadings, specify - (i) the subparagraph of paragraph (1) under which the application is made; and (ii) those parts of the pleadings which the applicant seeks to have struck out; and (c) where the application is to strike out the entire pleading, clearly indicate that intention in the application. [(4) deleted] (5) Unless special circumstances are shown, an application to amend pleadings consequent upon an order striking the pleadings out, in whole or in part, shall be accompanied by a minute of the proposed amendment. [Rule 19 amended in Gazette 26 Aug 1994 p. 4410-11; 24 Jan 1995 p. 270; 9 Aug 1996 p. 3949.] 20. Close of pleadings (1) Subject to paragraph (2) the pleadings in an action are deemed to be closed - (a) at the expiration of 14 days after service of the reply or, if there is no reply but only a defence to counterclaim, after service of the defence to counterclaim; or (b) if neither a reply nor a defence to counterclaim is served, at the expiration of 14 days after service of the defence. (2) Where the time for the service of a reply or defence to counterclaim or both is extended either by order of the Court or by written consent of the parties, or by the operation of Rule 13(7), the pleadings are deemed to be closed at the expiration of 14 days after such extended time has expired. 21. Trial without pleadings (1) Where in an action to which this Rule applies any defendant has entered an appearance in the action, the plaintiff or that defendant may apply to the Court by summons for an order that the action shall be tried without pleadings or further pleadings, as the case may be. (2) If, on the hearing of an application under this Rule, the Court is satisfied that the issues in dispute between the parties can be defined without pleadings or further pleadings, or that for any other reason the action can properly be tried without pleadings or further pleadings, as the case may be, the Court shall order the action to be so tried, and may direct the parties to prepare a statement of the issues in dispute or, if the parties are unable to agree to such a statement, may settle the statement itself. (3) Where the Court makes an order under paragraph (2), it shall, and where it dismisses an application for such an order, it may, give such directions as to the further conduct of the action as may be appropriate, and Order 29 Rules 2 to 5 shall, with the omission of so much of Rule 5 as requires parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications, apply as if the application under this Rule were a summons for directions. (4) This Rule applies to every action begun by writ other than one which includes - (a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or (b) a claim by the plaintiff based on an allegation of fraud. 22. Preparation of issues Where in any cause or matter it appears to the Court that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and such issues shall, if the parties differ, be settled by the Court. 23. Preliminary Act - collision between vessels (1) In an action for damage by collision between vessels, unless the Court otherwise orders, the plaintiff or his solicitor must, within 7 days after the commencement of the action, and the defendant or his solicitor must, within 7 days after appearance and before any pleading is delivered, respectively file in the Central Office a document to be called a Preliminary Act. (2) Every Preliminary Act shall be sealed up and, unless the Court otherwise orders, shall not be opened until the pleadings are closed and a consent signed by the respective parties or their solicitors that the Preliminary Acts shall be opened is filed in the Central Office. (3) The Preliminary Act shall contain a statement of the following particulars - (i) the names of the vessels which came into collision, the names of their masters, and their ports of registry; (ii) the date and time of the collision; (iii) the place of the collision; (iv) the direction and force of the wind; (v) the state of the weather; (vi) the state, direction and force of the tidal or other current; (vii) the course and speed of the vessel when the other was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier; (viii) the lights (if any) carried by the vessel; (ix)(a) the distance and bearing of the other vessel if and when her echo was first observed by radar; (b) the distance, bearing and approximate heading of the other vessel when first seen; (x) what light or combination of lights (if any) of the other vessel was first seen; (xi) what other lights or combination of lights (if any) of the other vessel were subsequently seen before the collision, and when; (xii) what alterations (if any) were made to the course and speed of the vessel after the earlier of the 2 times referred to in article (vii) up to the time of the collision, and when, and what measures (if any), other than alterations of course or speed, were taken to avoid the collision, and when; (xiii) the parts of each vessel which first came into contact and the approximate angle between the 2 vessels at the moment of contact; (xiv) what sound signals (if any) were given, and when; (xv) what sound signals (if any) were heard from the other vessel, and when. (4) Where the Court orders the Preliminary Acts to be opened, the Court may further order the action to be tried without pleadings but, where the Court orders the action to be so tried, any party who intends to rely on the defence of compulsory pilotage must give notice of his intention to do so to the other parties within 7 days after the opening of the Preliminary Acts. (5) Rule 1 shall not apply to an action in which Preliminary Acts are required but, unless the Court orders the action to be tried without pleadings, the plaintiff must serve a statement of claim on each defendant within 14 days after the latest date on which the Preliminary Act of any party to the action is filed. 24. Failure to lodge Preliminary Act (1) Where in an action to which Rule 23 applies, the plaintiff fails to lodge a Preliminary Act within the time prescribed for that purpose by that Rule or by any order of the Court, any defendant who has lodged such an Act may apply to the Court by summons for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it thinks just. (2) Where in such an action, being an action in personam, a defendant fails to lodge a Preliminary Act within the period prescribed for that purpose by Rule 23 or by any order of the Court, Order 22 Rules 2 and 3 shall apply as if the defendant's failure to lodge the Preliminary Act within that period were a failure by him to serve a defence on the plaintiff within the period fixed by or under these Rules for service thereof, and the plaintiff may enter judgment against the defendant in accordance with the said Rule 2 or the said Rule 3, as the circumstances of the case require. Order 21 - Amendment 1. Amendment of writ without leave (1) Subject to paragraph (3), the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed. (2) A writ amended under this Rule after service must, unless the Court otherwise directs on application, made ex parte, be served as amended on each defendant to the action. (3) This Rule shall not apply in relation to an amendment which consists of - (a) the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued; or (b) the addition or substitution of a new cause of action; (c) without prejudice to Rule 3(1) an amendment of the statement of claim, if any, indorsed on the writ. 2. Amendment of appearance A defendant may not amend his memorandum of appearance without the leave of the Court. 3. Amendment of pleadings without leave (1) A party may, without the leave of the Court, amend any pleading of his once at any time before the pleadings are deemed to be closed and, where he does so, he must serve the amended pleading on the opposite party. (2) Where an amended statement of claim is served on a defendant - (a) the defendant, if he has already served a defence on the plaintiff, may amend his defence; and (b) the period for service of his defence or amended defence, as the case may be, shall be either the period fixed by or under these Rules for service of his defence or a period of 14 days after the amended statement of claim is served on him, whichever expires later. (3) Where an amended defence is served on the plaintiff by a defendant - (a) the plaintiff, if he has already served a reply on that defendant, may amend his reply; and (b) the period for service of his reply or amended reply, as the case may be, shall be 14 days after the amended defence is served on him. (4) In paragraphs (2) and (3) references to a defence and a reply include references to a counterclaim and a defence to counterclaim respectively. (5) Where an amended counterclaim is served by a defendant on a party (other than the plaintiff) against whom the counterclaim is made, paragraph (2) shall apply as if the counterclaim were a statement of claim and as if the party by whom the counterclaim is made were the plaintiff and the party against whom it is made a defendant. (6) Where a party has pleaded to a pleading which is subsequently amended and served on him under paragraph (1), then, if that party does not amend his pleading under the foregoing provisions of this Rule, he shall be taken to rely on it in answer to the amended pleading, and Order 20 Rule 15(2) shall have effect in such a case as if the amended pleading had been served at the time when that pleading, before its amendment under paragraph (1), was served. 4. Application for disallowance of amendment made without leave (1) Within 14 days after the service on a party of a pleading amended under Rule 3(1), that party may apply to the Court to disallow the amendment. (2) Where the Court hearing an application under this Rule is satisfied that if an application for leave to make the amendment in question had been made under Rule 5 at the date when the amendment was made under Rule 3(1) leave to make the amendment or part of the amendment would have been refused, it shall order the amendment or that part to be struck out. (3) Any order made on an application under this Rule may be made on such terms as to costs or otherwise as the Court thinks just. 5. Amendment of writ or pleading with leave (1) Subject to - (a) Order 18 Rules 6, 7 and 8; (b) Order 20 Rule 19(2) to (5); and (c) the following provisions of this Rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct. (2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so. (3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued. (4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued. (5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment. [Rule 5 amended in Gazette 24 Jan 1995 p. 270.] 6. Amendment of other originating process Rule 5 shall have effect in relation to an originating summons, and an originating motion as it has effect in relation to a writ. 7. Amendment of other documents (1) For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. (2) This Rule shall not have effect in relation to a judgment or order. 8. Failure to amend after order Where the Court makes an order under this Order giving any party leave to amend a writ, pleading or other document, then, if that party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the order or, if no period is so specified, of a period of 14 days after the order was made, the order shall cease to have effect, without prejudice, however, to the power of the Court to extend the period. 9. Mode of amendment (1) Where the amendments authorised under any Rule of this Order to be made in a writ, pleading or other document are so numerous or of such nature or length that to make written alterations of the document so as to give effect to them would make it difficult or inconvenient to read, a fresh document, amended as so authorised and showing its original contents with the amendments written in red, or in such other manner as will distinguish the alterations from the original document or from any previous amendment, must be prepared, and in the case of a writ or originating summons re-issued. (2) Except as provided in paragraph (1), and subject to any direction given under Rules 5 or 7, the amendments so authorised shall be effected by writing the necessary alterations on the writ, pleading or other document in red or in such other manner as will distinguish the alterations from the original document or from any previous amendment, and in the case of a writ or originating summons, causing it to be re-sealed and filing a copy thereof. (3) A writ, pleading or other document which has been amended under this Order must be indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the Judge or Master by whom the order (if any) authorising the amendment was made, and the date thereof, or if no such order was made, the number of the Rule of this Order in pursuance of which the amendment was made. (4) When any pleading has been amended such amended document must be filed and served on the opposite party not later than the day next following the day on which the pleading is amended, unless the opposite party has no address for service in which case, notwithstanding Order 72 Rule 8, the amended document must be served as soon as practicable after the amendment is made. [Rule 9 amended in Gazette 24 Jan 1995 p. 272.] 10. Amendment of judgments and orders Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal. Order 22 - Default of pleadings 1. Default in service of statement of claim If the plaintiff, being required by these Rules to serve a statement of claim on a defendant fails to serve it on him within the time allowed by or under these Rules for that purpose, the defendant may after the expiration of that time, apply to the Court for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it thinks just. 2. Default of defence: claim for liquidated demand (1) Where the plaintiff's claim is against a defendant for a liquidated demand only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand, and for costs, and proceed with the action against the other defendants, if any. (2) Order 13 Rule 2(2) shall apply for the purpose of this Rule as it applies for the purpose of that Rule. [Rule 2 inserted in Gazette 30 Nov 1984 p. 3952-3; amended in Gazette 20 Jun 1986 p. 2040.] 3. Claim for unliquidated damages (1) Where the plaintiff's claim against a defendant is for unliquidated damages only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, enter interlocutory judgment against that defendant and obtain an order for directions for the assessment of damages, and proceed with the action against the other defendants, if any. (2) Order 13 Rule 7(2) and (3) shall apply for the purposes of this Rule as they apply for the purposes of that Rule. 4. Claim in detinue Where the plaintiff's claim against a defendant relates to the detention of goods only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, enter either - (a) interlocutory judgment against that defendant for the delivery of the goods or their value to be assessed and costs; or (b) interlocutory judgment for the value of the goods to be assessed and costs, and proceed with the action against the other defendants, if any. 5. Claim for possession of land (1) Where the plaintiff's claim against a defendant is for possession of land only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, on producing a certificate from his solicitor, or, if he sues in person an affidavit, stating that he is not claiming any relief in the action of the nature specified in Order 62A Rule 1 after the expiration of the period fixed by or under these Rules for service of the defence, enter judgment for possession of the land as against that defendant and for costs, and proceed with the action against the other defendants, if any. (2) Where there is more than one defendant, judgment entered under this Rule shall not be enforced against any defendant unless and until judgment for possession of the land has been entered against all the defendants. [Rule 5 amended in Gazette 10 Jan 1975 p. 50.] 6. Mixed claims Where the plaintiff makes against a defendant 2 or more of the claims mentioned in Rules 2 to 5, and no other claim, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, enter against that defendant such judgment in respect of any such claim as he would be entitled to enter under those Rules if that were the only claim made, and proceed with the action against the other defendants, if any. 7. Other claims (1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in Rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or failed to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim. (1A) On an application under paragraph (1), the applicant or his solicitor must produce a certificate issued by the proper officer on the day of the hearing stating that no defence has been filed by the defendant against whom it is sought to enter judgment. (2) Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one defendant, then, if one of the defendants makes default as mentioned in that paragraph, the plaintiff may - (a) if his claim against the defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or (b) set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial, or is set down on motion for judgment, against the other defendants. (3) An application under paragraph (1) must be by summons. [Rule 7 amended in Gazette 15 Jun 1973 p. 2248.] 8. Default of defence to counterclaim A defendant who counterclaims against a plaintiff shall be treated for the purposes of Rules 2 to 7 as if he were a plaintiff who had made against a defendant the claim made in the counterclaim and, accordingly, where the plaintiff or any other party against whom the counterclaim is made fails to serve a defence to counterclaim, those Rules shall apply as if the counterclaim were a statement of claim, the defence to counterclaim a defence and the parties making the counterclaim and against whom it is made were plaintiffs and defendants respectively and as if references to the period fixed by or under these Rules for service of the defence were references to the period so fixed for service of the defence to counterclaim. 9. Reference to Court Order 13 Rule 9 applies mutatis mutandis to a claim by the plaintiff to enter final or interlocutory judgment under the provisions of this Order. 10. Setting aside judgment The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. Order 23 - Discontinuance 1. Withdrawal of appearance A party who has entered an appearance in an action may withdraw the appearance at any time with the leave of the Court. 2. Plaintiff may discontinue: defence may be withdrawn (1) The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other step in the action, by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. (2) The costs referred to in paragraph (1) shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. (3) Save as in this Rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court, but the Court may before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. (4) The Court may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence or counterclaim, or any part thereof, without such leave. 3. Costs Any defendant may enter judgment for the costs of the action, if it is wholly discontinued against him, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued, in case such respective costs are not paid within 4 days after taxation. 4. Subsequent action stayed pending payment If any subsequent action shall be brought before payment of the costs of a discontinued action, for the same, or substantially the same, cause of action, the Court may, if it thinks fit, order a stay of such subsequent action, until such costs shall have been paid. 5. Withdrawal of summons A party who has taken out a summons in a cause or matter may not withdraw it except by leave of the Court. Order 24 - Payment into court - offers to consent to judgment [1-8. Deleted in Gazette 5 Apr 1991 p. 1398.] 9. In certain cases no payment out without order (1) Subject to paragraph (2) money paid into court under an order of the Court, or certificate of a Master or a Registrar, shall not be paid out of court except in pursuance of an order of the Court. (2) Unless the Court otherwise orders, a party who has paid money into court in pursuance of an order made under Order 14 - (a) may by notice to the other party appropriate the whole or any part of the money and any additional payment, if necessary, to any particular claim made in the statement of claim or counterclaim, as the case may be, and specified in the notice; or (b) if he makes a plea of tender, may by his pleading appropriate the whole or any part of the money as payment into court of the money alleged to have been tendered; and money appropriated in accordance with this Rule shall be deemed to be money paid into court under Rule 1 or money paid into court with a plea of tender, as the case may be, and this Order shall apply accordingly. [Rule 9 amended in Gazette 14 Dec 1979 p. 3869; 30 Nov 1984 p. 3951.] [10. Deleted in Gazette 5 Apr 1991 p. 1398.] 11. Amounts under $7 500 may be paid without administration Where the estate of a deceased person who has died intestate is entitled to a fund or to a share of a fund in court, not exceeding $7 500 and it is proved to the satisfaction of the Court - (a) that no administration to such deceased person's estate has been taken out; and (b) that his assets do not exceed the value of $7 500 including the amount of the fund or share to which the estate of such deceased person is entitled, the Court may direct that such fund or share of a fund shall be paid, transferred or delivered to the person, who being the widower, widow, de facto partner of the deceased (immediately before the death), child, parent, brother or sister of the deceased would be entitled to take out administration. [Rule 11 amended in Gazette 30 Nov 1984 p. 3953; 30 Jun 2003 p. 2631.] 12. Regulations The manner of payment into and out of court and the manner in which money in court shall be dealt with shall be subject to the regulations contained in the Third Schedule. Order 24A - Offer of compromise [Heading inserted in Gazette 5 Apr 1991 p. 1398.] 1. Mode of making offer (1) An offer of compromise is made to a party under this Order by serving a notice of the offer on the party. (2) A notice of offer shall - (a) be in writing; and (b) bear a statement to the effect that the offer is made under this Order. [Rule 1 inserted in Gazette 5 Apr 1991 p. 1398.] 2. Application In any proceedings the plaintiff or the defendant may make to the other an offer to compromise any claim in the proceedings on the terms specified in the notice of offer. [Rule 2 inserted in Gazette 5 Apr 1991 p. 1399.] 3. Time for making or accepting offer (1) An offer may be made at any time before the time prescribed by paragraph (8) in respect of the claim to which it relates. (2) A party may make more than one offer. (3) An offer may be expressed to be limited as to the time it is open to be accepted but the time expressed shall not be less than 28 days after it is made. (4) An offeree shall, within 3 days after service, serve a written acknowledgment of receipt on the offeror. (5) An offeree may accept the offer by serving notice of acceptance in writing on the offeror before - (a) the expiration of the time specified in accordance with paragraph (3) or, if no time is specified, the expiration of 28 days after the offer is made; or (b) the time prescribed by paragraph (8) in respect of the claim to which the offer relates, whichever is sooner. (6) An offer shall not be withdrawn during the time it is open to be accepted, unless the Court otherwise orders. (7) An offer is open to be accepted within the period referred to in paragraph (5) notwithstanding that during that period the party to whom the offer (the first offer) is made makes an offer (the second offer) to the party who made the first offer whether or not the second offer is made in accordance with this Order. (8) The time prescribed for the purposes of paragraphs (1) and (5) is - (a) where the trial is before a jury - after the Judge begins to sum up to the jury; or (b) in any other case - after the Judge or Master gives his decision or begins to give his reasons for decision on a judgment (except an interlocutory judgment). (9) Where an offer is accepted under this Rule, any party to the compromise may apply to the Court for such judgment or order as he may be entitled to and on the hearing of the application the Court shall give such judgment or make such order as it thinks fit. [Rule 3 inserted in Gazette 5 Apr 1991 p. 1399; amended in Gazette 28 Feb 1992 p. 995; 30 Oct 1992 p. 5310.] 4. Time for payment An offer to pay a sum of money to a plaintiff shall, unless the notice of offer otherwise provides, be taken to be an offer to pay that sum within 28 days after acceptance of the offer. [Rule 4 inserted in Gazette 5 Apr 1991 p. 1399.] 5. Withdrawal of acceptance (1) A party who accepts an offer may, by serving a notice of withdrawal on the offeror, withdraw the acceptance - (a) where the offer provides for payment of a sum of money and the sum is not paid into Court within 28 days after acceptance of the offer; or (b) where the Court gives leave so to do. (2) On withdrawal of an acceptance all steps in the proceedings taken in consequence of the acceptance shall have such effect only as the Court may direct. (3) On withdrawal of an acceptance or on the motion for leave to withdraw an acceptance, the Court may - (a) give directions under paragraph (2); (b) give directions for restoring the parties as nearly as may be to their positions at the time of the acceptance; and (c) give directions for the further conduct of the proceedings. [Rule 5 inserted in Gazette 5 Apr 1991 p. 1399.] 6. Offer without prejudice An offer made in accordance with this Order shall be taken to have been made without prejudice, unless the notice of offer otherwise provides. [Rule 6 inserted in Gazette 5 Apr 1991 p. 1399.] 7. Disclosure of offer to Court (1) No statement of the fact that an offer has been made shall be contained in any pleading or affidavit. (2) Where an offer has not been accepted, then, except as provided by Rule 10(8), no communication with respect to the offer shall be made to the Court at the trial until after all questions of liability and the relief to be granted have been determined. (3) This Rule shall not apply where a notice of offer provides that the offer is not made without prejudice. [Rule 7 inserted in Gazette 5 Apr 1991 p. 1399-400.] 8. Failure to comply with accepted offer (1) Where a party to an accepted offer fails to comply with the terms of the offer, then unless for special cause the Court otherwise orders, the other party - (a) shall be entitled to an order - (i) where the party in default is the plaintiff, that the proceedings be dismissed; and (ii) where the party in default is the defendant, that the defence be struck out, and in either case to judgment accordingly; or (b) may apply to the Court for such judgment or order as he may be entitled to and on the hearing of the application the Court shall give such judgment or make such order as it thinks fit. (2) Where a party to an accepted offer fails to comply with the terms of the offer, and a defendant in the proceeding has made a cross-claim which is not the subject of the accepted offer, the Court may make such order or give such judgment under paragraph (1) and make such order that the proceeding on the cross-claim be continued as it thinks fit. [Rule 8 inserted in Gazette 5 Apr 1991 p. 1400; amended in Gazette 28 Feb 1992 p. 995.] 9. Multiple defendants Where 2 or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a debt or damages and rights of contribution or indemnity appear to exist between the defendants, Rule 8 shall not apply to an offer unless - (a) in the case of an offer made by the plaintiff - the offer is made to all defendants, and is an offer to compromise the claim against all of them; (b) in the case of an offer made to the plaintiff - (i) the offer is to compromise the claim against all defendants; and (ii) where the offer is made by 2 or more defendants - by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the plaintiff for the whole amount of the offer. [Rule 9 inserted in Gazette 5 Apr 1991 p. 1400.] 10. Costs (1) Upon the acceptance of an offer of compromise in accordance with Rule 3(5), the plaintiff may, unless the Court otherwise orders, tax his costs in respect of the claim against the defendant up to and including the day the offer was accepted and, if the costs are not paid within 4 days after the signing of a certificate of the taxation, enter judgment against that defendant for the taxed costs. (2) If a notice of offer contains a term which purports to negative or limit the operation of paragraph (1), that term shall be of no effect for any purpose under this Order. (3) Paragraphs (4) to (6) apply to an offer which has not been accepted in the time prescribed by Rule 3(8). (4) Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, in addition to his costs incurred before that date, all such costs to be taxed on a party and party basis. (4a) Paragraph (4) as it was before 1 March 2007 does not apply to an offer made by a plaintiff before 1 March 2007 unless the plaintiff obtains judgment on the claim to which the offer relates before 1 March 2007. (5) Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim up to and including the day the offer was made, taxed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for his costs in respect of the claim thereafter, taxed on a party and party basis. (6) For the purpose of paragraph (5), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the Court otherwise orders, the plaintiff shall be entitled to his costs in respect of the claim up to 11 a.m. on the day following the day on which the offer was made, taxed on a party and party basis, and the defendant shall be entitled to his costs in respect of the claim thereafter, taxed on a party and party basis. (7) Where a plaintiff obtains judgment for the payment of a debt or damages and - (a) the amount for which judgment is given includes interest or damages in the nature of interest; or (b) by or under any Act the Court awards the plaintiff interest or damages in the nature of interest in respect of the amount, then, for the purpose of determining the consequences as to costs referred to in paragraphs (4) and (5), the Court shall disregard so much of the interest as relates to the period after the day the offer was made. (8) For the purpose of paragraph (7), the Court may be informed of the fact that the offer was made, and of the date on which it was made, but shall not be informed of its terms. (9) Paragraphs (4) and (5) shall not apply unless the Court is satisfied by the party making the offer that the party was at all material times willing and able to carry out what the party offered. [Rule 10 inserted in Gazette 5 Apr 1991 p. 1400-1; amended in Gazette 28 Feb 1992 p. 996; 21 Feb 2007 p. 536.] Order 25 - Security for costs 1. Security generally The Court may order security for costs to be given by a plaintiff, but no order shall be made merely on account of the poverty of the plaintiff or the likely inability of the plaintiff to pay any costs which may be awarded against him. 2. Grounds for ordering Without limiting the generality of the preceding Rule the Court may order security for costs to be furnished where the plaintiff - (a) is ordinarily resident out of the jurisdiction, notwithstanding that he may be temporarily within the jurisdiction; (b) is about to depart from the jurisdiction; (c) enjoys within the jurisdiction some privilege which renders him immune, wholly or partially, from the normal processes of execution; (d) is an undischarged bankrupt or a person who has suspended, or given notice of suspension of, his debts; (e) is a company in liquidation or under official management, or a company in respect of which a receiver of its property has been appointed; (f) is a relator suing for the enforcement or declaration of some public right or to have some public trust carried out or some charitable scheme settled; (g) is in default in respect of any costs ordered to be paid by him in any proceedings previously brought by him against the same defendant or another defendant for substantially the same cause of action or in relation to substantially the same subject matter; (h) is a person who has in the past vexatiously brought litigation against the same defendant or against any other defendant; (i) is suing the sheriff in respect of anything done or omitted to be done by the sheriff or his officers in the execution of any judgment of the Court. 3. Court has a discretion The granting of security shall be in the discretion of the Court, and in determining whether an order should be made the Court shall take into consideration - (a) the prima facie merits of the claim; (b) what property within the jurisdiction may be available to satisfy any order for costs against the plaintiff; (c) whether the normal processes of the Court would be available within the jurisdiction for enforcement of any order for costs made against the plaintiff. 4. Definition In this Order the term plaintiff shall include a defendant counterclaiming in respect of a claim not arising out of the claim made against him. 5. Manner of giving security In fixing security the Court shall direct the form and manner in which the security is to be given and may from time to time vary the amount and form of the security. 6. Action may be stayed Where security is ordered the action or other proceedings shall be stayed until the security is furnished, unless the Court otherwise orders. 7. Payment out Where money has been paid into court as security for costs and the action has been finally disposed of, the amount of the security shall be paid out to the party for whose security it was furnished to the extent pro tanto that costs are due from the securer to such party, and the Principal Registrar shall pay out the security accordingly unless the Court has otherwise ordered, and the balance (if any) shall be refunded to the securer without the necessity for any special order. [Rule 7 amended in Gazette 14 Dec 1979 p. 3869.] 8. Saving This Order is without prejudice to the provisions of any Act which empowers the Court to require security to be given for the costs of any proceedings. Order 26 - Discovery and inspection 1A. Definitions For the purposes of this Order - document means any record of information and includes - (a) any disc, tape, sound-track or other device in which sounds or other means of transmitting data (not being visual images); and (b) any film, negative, disc, tape or other device in which one or more visual images, are embodied so as to be capable, with or without the aid of some other device, of being reproduced therefrom; inspection, in relation to a document which is not in writing or otherwise capable of being understood by visual means alone, includes the right to require the party making discovery to supply a copy of the document in a form in which it is in writing or otherwise capable of being understood by visual means alone. [Rule 1A inserted in Gazette 5 Jun 1992 p. 2280-1.] 1. Discovery without order (1) Any party may give notice in writing to any other party in a cause or matter requiring him to give discovery of all documents which are or have been in his possession, custody or power relating to any matter in question therein. (2) Where the cause or matter has been entered for trial a notice of the kind mentioned in paragraph (1) shall not be given without the leave of the Court. (3) If the party making the requisition for discovery of documents so elects in the notice the discovery may take the form of a list of documents which must be attested by the solicitor for the party giving discovery or by some person authorised by the Court to take affidavits. (4) If the party making the requisition does not agree to accept the list in the form provided by paragraph (3) then the list must be verified by affidavit. [Rule 1 amended in Gazette 28 Oct 1996 p. 5675.] 2. Continuing obligation to give discovery (1) A party that has been requested under Rule 1 to give discovery shall, subject to any order made under Rule 7, be under a continuing obligation until the conclusion of the trial to give discovery of any document relevant to any matter in question and not already discovered by that party. (2) A party that has been ordered under Rule 7 to give discovery shall, subject to the order, be under a continuing obligation until the conclusion of the trial to give discovery of any document to which the order relates and not already discovered by that party. (3) Discovery under paragraph (1) or (2) shall be given in accordance with paragraphs (4) and (5). (4) A party shall give discovery to another party forthwith after the party becomes aware of a discoverable document unless the document came into existence after discovery was given under Rule 1 or under an order made under Rule 7 and - (a) is a communication between 2 or more of the parties or their solicitors; or (b) is privileged from production. (5) At least 21 days before the trial a party shall give discovery of any document that has not already been discovered by that party, including documents referred to in paragraph (4)(a) and (b). (6) Discovery under this Rule shall be given by filing and serving on the other parties a supplementary list in accordance with Rule 4 showing the relevant documents together with a verifying affidavit. [Rule 2 inserted in Gazette 28 Oct 1996 p. 5675-6.] [2A. Deleted in Gazette 28 Oct 1996 p. 5675.] 3. Determination of issue before discovery If the Court is satisfied that the right to discovery or inspection of documents depends on the determination of any issue or question in the cause or matter or that for any other reason it is desirable that any issue or question in dispute should be determined before deciding such right the Court may order that the issue or question be determined first and may reserve an application under this Order for further consideration. [Rule 3 amended in Gazette 28 Oct 1996 p. 5676.] 4. Form of list and affidavit - by whom made (1) The list of documents made in compliance with Rule 1 or with an order under Rule 7 must be in Form No. 17, and must enumerate the documents in a convenient order and as shortly as possible, but describing each of them or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable it to be identified, and must be filed within 10 days after the service of the requisition, or within the time directed by the order. (2) If it is claimed that any documents are privileged from production, the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege. (3) An affidavit verifying a list of documents must be in Form No. 18. (4) Any list of documents or affidavit verifying such list may be made - (a) by the party; (b) where the party is the State or an officer of the State sued or suing in his official capacity - by an officer of the State; (c) where the party is a body corporate or a body of persons empowered by law to sue or be sued whether in its own name or in the name of any officer or other person - by a member or officer of the corporation or body, and in the case of an order against any party to which paragraph (b) or (c) applies the order must specify the person who is to comply with the order on behalf of the party. [Rule 4 amended in Gazette 30 Nov 1984 p. 3953; 28 Oct 1996 p. 5676; 19 Apr 2005 p. 1298.] 5. Defendant entitled to copy of co-defendant's list (1) Any defendant who has pleaded in an action shall be entitled to have a copy of any list of documents served under Rule 1, 2 or 7 on the plaintiff by any other defendant to the action; and a plaintiff against whom a counterclaim is made in an action begun by writ shall be entitled to have a copy of any list of documents served under any of those Rules on the party making the counterclaim by any other defendant to the counterclaim. (2) On request made by a party entitled to a copy of a list of documents, the party required by paragraph (1) to supply the same must supply it free of charge. (3) In this Rule list of documents includes an affidavit verifying a list of documents. [Rule 5 amended in Gazette 28 Oct 1996 p. 5676.] 6. Order for discovery of particular documents (1) Subject to Rule 7 the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document specified or described is, or has at any time been, in his possession custody or power, and if not then in his possession custody or power when he parted with it and what has become of it. (2) An order may be made against a party under this Rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under Rule 1 or Rule 7. (3) An application under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has, or at some time had, in his possession, custody or power the document or class of document specified or described in the application and that it relates to one or more of the matters in question in the cause or matter. [Rule 6 amended in Gazette 28 Oct 1996 p. 5676.] 7. Orders as to discovery (1) An application for an order under this Rule may be made at any time by - (a) a party whose request under Rule 1 for discovery has not been satisfied; or (b) a party who has been requested under Rule 1 to give discovery, whether or not the party has complied with the request. (2) An affidavit in support of the application is not necessary. (3) On an application, or at any time of its own motion in any proceedings, the Court, having regard to Order 1 Rule 4B, may - (a) order any or all of the parties to give discovery at that stage or at some specified future stage of the action; (b) as to the documents to be discovered by any party - (i) order that discovery be given of only those specified documents or specified classes of document; (ii) order that discovery be given of only those documents that are directly relevant to any specified matter in question or to all matters in question; (iii) order that discovery be given of all documents relating to any specified matter in question or to all matters in question; (c) make orders as to which parties are to be given discovery by any specified party; (d) order that any or all of the parties not give discovery at that stage of the action, or at all; (e) order any or all parties to make, file and serve an affidavit verifying the party's list of documents discovered. (4) For the purposes of this Rule if a party is ordered to give discovery, the party shall, subject to the order, make and serve, a list of the documents that are or have been in the party's possession, custody or power. [Rule 7 inserted in Gazette 28 Oct 1996 p. 5677-8.] 8. Inspection of documents in list (1) A party who has served a list of documents on any other party in compliance with Rule 1 or with an order under Rule 7 must allow the other party to inspect the documents mentioned in the list, other than any which he objects to produce, and must when serving the list on the other party also serve on him a notice stating a time within 7 days after the service thereof at which the said documents may be inspected at the place specified in the notice. (2) Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for inspection by the party giving the notice. (3) The party on whom a notice is served under paragraph (2) must within 4 days after service of the notice serve on the party giving the notice a notice stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce, may be inspected at the place specified in the notice, and stating which, if any, of the documents he objects to produce and the grounds of his objection. (4) Subject to Rule 9, inspection under this Rule shall be made at the office of the solicitor for the party producing the documents or if the party appears in person at a place that is reasonable for the purpose or in the case of bankers' books or other books of account or books in constant use for the purpose of any trade or business, at their usual place of custody. (5) The party making the inspection shall be entitled to make copies of any documents produced for inspection under this Rule. [Rule 8 amended in Gazette 7 Dec 1973 p. 4489; 28 Oct 1996 p. 5678; 21 Feb 2007 p. 536.] 8A. Procedure on discovery (1) Documents delivered or produced under these Rules are - (a) to be - (i) in bundles, files, folders or receptacles; and either (ii) grouped according to topic, class, category, allegation in issue or otherwise; or (iii) in an order or sequence, making the documents readily accessible to and capable of convenient inspection by the party to whom they are delivered or produced; and (b) to be so identified or indexed by number, description or otherwise as to enable particular documents to be readily retrieved on later occasions. (2) The party producing the documents must provide facilities for inspection and copying of the documents and make available a person able to - (a) explain the arrangement used; and (b) assist in locating and identifying particular documents or classes of documents. (3) An existing arrangement of documents already in use by a party - (a) is not to be disturbed more than is necessary to achieve substantial compliance with paragraph (1)(a); and (b) if the party so requires, is not to be disturbed at all. [Rule 8A inserted in Gazette 26 Aug 1994 p. 4411-12.] 9. Order for inspection of documents (1) Where a party who is required by Rule 8(1) to serve the notice therein mentioned, or who is served with a notice under Rule 8(3) - (a) fails to serve the notice under Rule 8(1) or as the case may be Rule 8(3); or (b) objects to produce any document for inspection; or (c) offers inspection at a time or place which in the opinion of the Court is unreasonable for such purpose, the Court may on the application of the party entitled to inspection make an order for production of the documents in question for inspection at such time and place, and in such manner as it thinks fit. (2) Without prejudice to paragraph (1) but subject to Rule 11 the Court may on the application of any party to a cause or matter, order any other party to permit the party applying to inspect any documents in the possession, custody or power of that other party relating to any matter in question in the cause or matter. (3) An application under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that such documents are in the possession, custody or power of the other party, and relate to a matter in question in the cause or matter. 10. Order for production to the Court At any stage of the proceedings in any cause or matter the Court may subject to Rule 11 order any party to produce to the Court any document in his possession, custody or power, relating to any matter in question in the cause or matter and the Court may deal with the document when produced in such manner as it thinks fit. 11. Production only if necessary No order for production of any documents for inspection or to the Court shall be made unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. 11A. Costs of preparation of document to facilitate inspection Unless the Court otherwise orders for the purposes of inspection the reasonable costs of supplying a copy of a document in a form in which it is capable of being understood by visual means alone shall be included in the party and party costs in the proceedings. [Rule 11A inserted in Gazette 5 Jun 1992 p. 2281.] 12. Claim of privilege (1) Where - (a) on an application for production of a document for inspection or to the Court; or (b) in any list of documents supplied on discovery, a party claims privilege the party requiring production or discovery may traverse the claims to privilege by adducing evidence either that the claim to privilege is unfounded or mistaken, but in the absence of any evidence to that effect the claim to privilege shall be sustained. (2) In determining any objection on the ground of privilege to the production or discovery of any document or class of document the Court may inspect the document. 13. Production of business books Where inspection of any business books is applied for the Court may instead of ordering inspection of the original books order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations: Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made. [Rule 13 amended in Gazette 14 Dec 1979 p. 3870.] 14. Where disclosure against public interest The provisions of this Order shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that the disclosure of it would be injurious to the public interest. 15. Non-compliance with requirements for discovery etc. (1) If any party who is required by any of the Rules of this Order or by any order made thereunder, to give discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provisions of that Rule or with that order, as the case may be, then without prejudice, in the case of a failure to comply with any such provision, to Rules 7 and 9(1) the Court may make such order as it thinks just including in particular, an order that the action be dismissed or as the case may be, an order that the defence be struck out and judgment entered accordingly. (2) If any party fails to comply with an order for discovery or production of documents then, without prejudice to paragraph (1) he shall be liable to attachment. (3) Service of an order for discovery or production of documents on the solicitor for the party against whom the order has been made shall be sufficient service to found an application to enforce the order, but it shall be an answer to the application if the party shows that he had no notice or knowledge of the order. (4) A solicitor on whom an order against his client for discovery or production of documents is served under paragraph (3) who fails without reasonable excuse to give notice thereof to his client shall be liable to attachment. [Rule 15 amended in Gazette 28 Oct 1996 p. 5678; 21 Feb 2007 p. 536.] 15A. Certificate by solicitor At or immediately before the trial the solicitor having conduct of the action on behalf of a party must deliver to the Court or to a Judge at the trial or hearing a certificate signed by that solicitor and addressed to the Court stating that the duty of discovery has been fully explained to that party and, if that party is a corporation, identifying the individual, or individuals to whom it was explained. [Rule 15A inserted in Gazette 26 Aug 1994 p. 4412.] 16. Revocation and variation of orders Any order which has been made under this Order, including an order made on appeal, may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in relation to which the original order was made. Order 26A - Discovery etc. from non-parties and potential parties [Heading inserted in Gazette 28 Oct 1996 p. 5678.] 1. Definitions In this Order, unless the contrary intention appears - description, in relation to person who is or may be a potential party, includes the person's name, sex, age, occupation, place of residence, place of business and whether the person is an individual, a body corporate or an unincorporated body of persons; document has the same definition as in Order 26 Rule 1A; possession includes custody or power. [Rule 1 inserted in Gazette 28 Oct 1996 p. 5678.] 2. Public interest immunity not affected This Order does not affect any rule of law that authorises or requires the withholding of a document on the ground that its disclosure would be injurious to the public interest. [Rule 2 inserted in Gazette 28 Oct 1996 p. 5679.] 3. Discovery etc. to identify a potential party (1) This Rule applies if a person who appears to have a cause of action against a person (the potential party) wants - (a) to commence proceedings against the potential party; or (b) to take proceedings against the potential party in the course of an action to which the person is a party, but the person, after reasonable enquiries, has not been able to ascertain a description of the potential party sufficient for the purposes of doing so. (2) If there are reasonable grounds for believing that another person (the non-party) had, has, or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party, the person may apply for an order under this Rule. (3) The application shall be supported by an affidavit and a copy of both shall be served on the non-party. (4) On the application the Court may order the non-party, and if the non-party is a body corporate, a person having the management of the body to do either or both of the following: (a) to give discovery to the applicant of all documents that are or have been in the non-party's possession relating to the description of the potential party; (b) to personally attend the Court to be examined in relation to the description of the potential party. (5) If the Court orders a person to personally attend the Court, it may order the person to produce to the Court any document or object in the non-party's possession that relates to the description of the potential party. (6) The Court may direct that the examination of the person be by a Registrar. (7) A person required to personally attend the Court shall be entitled to the like conduct money and payment for expenses and loss of time as on an attendance at a trial in Court. [Rule 3 inserted in Gazette 28 Oct 1996 p. 5679-80.] 4. Discovery from a potential party (1) This Rule applies if a person who may have a cause of action against a person whose description has been ascertained (the potential party) wants - (a) to commence proceedings against the potential party; or (b) to take proceedings against the potential party in the course of an action to which the person is a party, but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings. (2) If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this Rule. (3) The application shall be supported by an affidavit and a copy of both shall be served on the potential party. (4) On the application the Court may order the potential party to give discovery of all documents that are or have been in the potential party's possession and that may assist the applicant in making the decision. [Rule 4 inserted in Gazette 28 Oct 1996 p. 5680.] 5. Discovery from a non-party (1) If there are reasonable grounds for believing that a person who is not party to an action (the non-party) had, has, or is likely to have had or to have, possession of documents that relate to any matter in question in the action, a party to the action may apply for an order under this Rule. (2) The application shall be supported by an affidavit and a copy of both shall be served on the non-party and the other parties to the action. (3) On the application the Court may order the non-party to give discovery of all documents that are or have been in the non-party's possession and that relate to any matter in question in the action. [Rule 5 inserted in Gazette 28 Oct 1996 p. 5680-1.] 6. Order 26 applies to discovery ordered under this Order (1) A court making an order for discovery under this Order may exercise any of the powers in Order 26 Rule 7(3). (2) Order 26 applies in relation to any discovery that under this Order is ordered to be given as if it had been ordered under Order 26 Rule 7. [Rule 6 inserted in Gazette 28 Oct 1996 p. 5681.] 7. Costs (1) An order made under this Order may be made on the condition that the applicant give security for the costs and expenses of the person against whom the order is made, both in respect of the application and of complying with the order and with this Order. (2) On an application under this Order the Court may make orders as to the costs and expenses - (a) of any person in respect of the application; and (b) of a person against whom an order is made in respect of complying with the order and with this Order. [Rule 7 inserted in Gazette 28 Oct 1996 p. 5681.] Order 27 - Interrogatories 1. Discovery by interrogatories (1) Subject to this Rule any party may with the leave of the Court serve notice on any other party requiring him to answer specified interrogatories relating to any matter in question between the party interrogating and the party served. (2) If the party interrogating so elects in the notice the answers may take the form of a statement signed by the person answering, but otherwise the answers to the interrogatories shall be by a statement verified by affidavit. (3) The statement referred to in paragraph (2) shall be in accordance with Rule 4 and must be attested by the solicitor for the party interrogated or by a person having authority to take affidavits for use in the Court. (4) A party or person who wilfully makes a false statement in answer to an interrogatory shall be guilty of contempt of court and shall be punishable accordingly. [Rule 1 amended in Gazette 24 Jan 1995 p. 270; 28 Oct 1996 p. 5681.] 2. Answers A party required under Rule 1 to answer interrogatories shall answer the interrogatories by filing within 14 days of the day on which the interrogatories were served the statement referred to in Rule 1(2) and the verifying affidavit, if required, and serving on the interrogating party within the same time a copy of the document, or, as the case may be of each such document filed. 3. Note as to party required to answer Interrogatories served on 2 or more parties or which are required to be answered by an agent or servant of a party shall have a note at the end thereof stating which of such interrogatories each of such persons is required to answer. 4. Statement in answer The statement in answer to interrogatories required by or under this Order must deal with each interrogatory specifically, by answering its substance without evasion, or objecting to answer on one or more of the grounds specified in Rule 5 and stating briefly the facts on which the objection is taken. 5. Grounds for objection (1) A party may object in his statement in answer to interrogatories to answer any interrogatory on one or more of the following grounds - (a) that it is scandalous or irrelevant, not bona fide for the purpose of the proceeding, unreasonable, prolix, oppressive or unnecessary; (b) that the matters inquired into are not sufficiently material at that stage; (c) privilege; (d) any other ground on which objection may be taken. (2) Where on an application under Rule 7 the Court decides that an objection by the party interrogated to answering an interrogatory is not sufficient or the party interrogated does not object to answering an interrogatory, that party shall not be entitled to object to answer that interrogatory in a statement in answer to interrogatories. [Rule 5 amended in Gazette 15 Jun 1973 p. 2248.] 6. Statements etc. - by whom made (1) A statement or an affidavit verifying a statement in answer to interrogatories may be made as follows - (a) by the party; (b) where the party is the State or an officer of the State sued or suing in his official capacity - by an officer of the State; (c) where the party is a body corporate or a body of persons empowered by law to sue or be sued whether in its own name or in the name of any officer or other person - by a member or officer of the corporation or body. (2) In the case of an order against any party to which paragraph (1)(b) or (c) applies the order shall specify the person who is to comply with the order on behalf of the party. (3) Subject to paragraph (2) a party to which paragraph (1)(b) or (c) applies shall in relation to each interrogatory choose a person to make the statement (and verifying affidavit, if required) who is qualified under the relevant subparagraph, and has knowledge of the facts. [Rule 6 amended in Gazette 19 Apr 2005 p. 1298.] 7. Order for answers or further answers If any person on whom interrogatories have been served fails, within the prescribed time or within such other time as the Court may allow, to answer the interrogatories or answers any of them insufficiently, the Court may make an order requiring him to answer or answer further as the case may be, by a statement verified by affidavit or may order him or any of the persons mentioned in Rule 6(1)(b) or (c) as the case may require to attend for oral examination. 8. Non-compliance with order (1) If any party against whom an order is made under Rule 7 fails to comply with it, the Court may make such order as it thinks just including in particular an order that the action be stayed or dismissed, or as the case may be, an order that the defence be struck out and that judgment be entered accordingly. (2) Any party who fails to comply with an order made against him under Rule 7 shall, without prejudice to paragraph (1), be liable to attachment. (3) Service of an order to answer interrogatories or to make a further answer, on the solicitor for the party against whom the order has been made shall be sufficient service to found the application to enforce the order, but it shall be an answer to the application if the party shows that he had no notice or knowledge of the order. (4) A solicitor on whom an order to answer interrogatories or make further answer is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to attachment. [Rule 8 amended in Gazette 21 Feb 2007 p. 536.] 9. Use of answers in evidence At the trial of a cause or matter or of any issue therein, a party may tender as evidence some only of the answers to interrogatories, or part only of such an answer without tendering the others or the whole of such answer: provided that the Court may look at the whole of the answers and if of opinion that any other answer or any other part of an answer is so connected with an answer or part of an answer which has been tendered, that the matter tendered ought not to be used without that other answer or part, the Court may reject the matter tendered unless the other answer or part is also tendered. 10. Revocation and variation of orders Any order which has been made under this Order including an order made on appeal, may on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in relation to which the original order was made. Order 28 - Medical examination: Inspection of physical objects 1. Medical examination of parties (1)(a) Where it becomes material in any cause or matter before the Court to consider the question of the physical or mental condition of any party, any opposing party may serve on such first- mentioned party a notice to submit himself for examination at a specified time and place by a medical practitioner provided and paid by the party requiring the examination. At any such examination a medical adviser chosen by the party to be examined shall be entitled to be present if the party so desires. (b) Where the party objects to complying with the notice, or in default of agreement as to the time and place of the examination, or if any matter shall arise in relation to such examination, either party may apply to the Court for an order as to whether or not the objecting party shall submit himself for examination, or as to when and where such examination may be made, or as to any other matters to facilitate the examination. (c) If the Court is of opinion that either party has been unreasonable in the matter it may order that party to pay the costs of the application and any other costs unnecessarily incurred in consequence. (2) A reasonable sum to cover the travelling and other expenses of the party to be examined of and incidental to the examination, including the expenses of having the medical adviser chosen by him attend the examination, shall on demand be paid to the party to be examined by the party requiring the examination. (3) If any party fails to submit himself for examination as required by this Rule, or in any way obstructs the examination, the Court may order that the proceedings be stayed, either wholly or in part, until the examination has taken place, or that any pleading be struck out. (4) The examining medical practitioner shall make a written report of his examination to the party who required the examination and that party shall serve on the party who has been examined a full and true copy of such report. (5) If default be made for one week in serving the copy mentioned in paragraph (4) or if the party examined alleges that the report is insufficient or incomplete, such party may obtain an order for service of the report or of a further and better report and the Court may direct that if the order be not complied with within a time to be therein specified the claim or defence be struck out or the proceedings be stayed. Unless otherwise directed the costs of obtaining such order shall be borne by the party in default. (6) In this Rule the expression party includes a person for whose benefit an action is brought pursuant to the Fatal Accidents Act 1959. 2. Inspection of physical objects (1) Where one party alleges that another party to any cause or matter has in his possession or control some physical object, not in the nature of a document, the inspection of which is material for the proper presentation of his case such first-mentioned party may by notice in writing require the other to permit inspection by the party requiring it with, or without, his solicitor or expert adviser. (2) The party required to permit inspection shall nominate a time and place for inspection. In default of agreement as to the time and place, or if any matter shall arise in relation to such inspection, either party may apply to the Court for an order specifying how and when and where such inspection may be made. (3) If the Court is of opinion that either party has been unreasonable in relation to the matter it may order that party to pay the costs of the application, and any other costs unnecessarily incurred in consequence. Order 29 - Case flow management powers of the Court [Heading inserted in Gazette 26 Mar 1993 p. 1841.] 1. Definitions In this Order, unless the contrary intention appears - Mediation Registrar means a Registrar appointed by the Chief Justice under rule 2(1)(r)(i); mediator means a person approved by the Chief Justice under rule 2(1)(r)(ii); standard times means the standard times prescribed under Rule 4(2). [Rule 1 inserted in Gazette 26 Mar 1993 p. 1841; amended in Gazette 20 Apr 1993 p. 2103-4; 28 Oct 1996 p. 5682; 21 Feb 2007 p. 537.] 2. Court may review any case (1) In any proceedings the Court may at any time of its own motion on notice to the parties or upon the hearing of a summons for directions or other application review the progress of the proceedings and make such orders or give such directions to lead to their efficient and timely disposal as it may consider just and expedient and, without limiting the generality of that power, may - (a) require the parties to any proceedings to attend before the Court; (b) dispense with pleadings altogether or order such pleadings as it deems appropriate; (c) direct the mode by which particular facts may be proved at trial; (d) order that evidence of any particular fact, to be specified in the order, shall be given at the trial by statement on oath of information and belief, or by production of documents or entries in books or by copies of documents or entries or otherwise as the Court may direct; (e) dispense with any interlocutory proceedings or steps; (f) require the parties or counsel to file and exchange memoranda before the hearing of any interlocutory proceeding in order to clarify the matters in issue before the hearing; (g) where appropriate deal with applications or hold conferences by way of a telephone or video conference link-up; (h) where appropriate deal with applications, and the evidence in relation to them, by way of telegram, facsimile, telex message, or courier post; (i) give directions to assist the convenience of the parties and witnesses; (j) make use of video tapes, film projection, computers and other equipment as the Court sees fit in the proceedings; (k) make arrangements for the more speedy and effective recording of evidence; (l) give directions as to the manner in which the parties shall defray the costs of giving effect to any directions under this Rule; (m) direct that a party serve on the other parties at such times as shall be directed, a signed written statement of the proposed evidence in chief of each witness to be called by that party; (n) direct that a signed written statement referred to in paragraph (m) or any part of it stand as the evidence in chief of the witness; (o) direct that a party intending to produce a plan, photograph or model at trial shall at a time to be directed, serve on the other party a notice in writing specifying the plan, photograph or model, stating where and when it may be inspected, and requiring the other party to serve upon him or her, within 7 days of service of the notice, a written notification agreeing or refusing to agree to the admission in evidence without further proof of the plan, photograph or model; (p) direct that where a party gives notification that he or she refuses to agree to the admission of a plan, photograph or model without further proof, and the plan, photograph or model is admitted into evidence at the trial as part of the case of the party serving the notice under paragraph (o), the party giving the notification shall pay any costs of proving the plan, photograph or model unless the trial judge otherwise orders; (q) on any terms suitable, direct at any time that the parties confer on a "without prejudice" basis for the purpose of resolving or narrowing the points of difference between them; (r) direct that a - (i) Registrar appointed by the Chief Justice to be the Mediation Registrar; or (ii) person approved by the Chief Justice to be a mediator, may conduct the conference; (ra) in relation to a conference conducted by a mediator, give such directions as it considers just and expedient but shall not, without consent of the parties, direct that a conference take place where a party would become liable to remunerate a mediator; (s) direct that experts, whose reports have been exchanged pursuant to Order 36A consult on a "without prejudice" basis, for the purpose of narrowing any points of difference between the experts and identifying any remaining points of difference; and (t) require that an application for an adjournment be supported by the affidavits of such persons as the Court shall direct. (2) A direction that parties attend a mediation conference does not operate as a stay of proceedings, unless otherwise ordered. (3) No order or direction shall be made under this Rule that amends, cancels, or is inconsistent with, a case management direction made under Order 29A, except under Order 29A Rule 13. [Rule 2 inserted in Gazette 26 Mar 1993 p. 1841-3; amended in Gazette 20 Apr 1993 p. 2104; 28 Oct 1996 p. 5682.] 3. Mediation conferences (1) In the absence of any other order - (a) mediation conferences will take place at the time and place as directed; (aa) each party shall, subject to any directions, take such steps as may be necessary to ensure that the mediation conference occurs as soon as possible; (b) each party shall attend the conference or if a party is not a natural person, a representative of that party familiar with the substance of the litigation and with authority to compromise it, and the solicitor or counsel, if any, representing each party; (ba) each party's costs of and incidental to a mediation conference shall be the party's costs in the cause, unless it is ordered otherwise or the parties agree; but a party may apply for those costs if they have been unnecessarily incurred due to the conduct of the other party; (bb) the fees and expenses of any mediator who is not a Mediation Registrar shall be paid by the parties in equal shares, unless it is ordered otherwise or the parties agree; (c) within 2 weeks after the conclusion of the conference, the plaintiff shall lodge with the Court a report, signed by or on behalf of each party - (i) confirming that the conference has occurred as directed; and (ii) recording the substance of any resolution or narrowing of the points of difference between the parties resulting from the conference. (2) A Mediation Registrar or a mediator - (a) shall not, unless the parties agree, report to the Court on a mediation conference; (b) whether or not the parties agree, may report to the Court on any failure by a party to cooperate in a mediation conference; but the report shall not be disclosed to the trial judge except for the purposes of determining any question as to costs. [Rule 3 inserted in Gazette 26 Mar 1993 p. 1843; amended in Gazette 20 Apr 1993 p. 2104; 28 Oct 1996 p. 5682-3.] 3A. Application of Rules 4 and 4A Rules 4 and 4A do not apply to any action, cause or matter to which Order 29A applies. [Rule 3A inserted in Gazette 28 Oct 1996 p. 5683.] 4. Compliance with standard times (1) A Registrar appointed by the Chief Justice to be the Case Management Registrar may exercise the powers conferred on him under this Rule. (2) The powers shall be exercised on the basis that cases to which this Rule applies should be conducted in accordance with the standard times prescribed in the Table to this paragraph and that extensions of standard times should only be permitted for good reason which shall not include the consent of the parties. Table Standard times |Item| |Time | |1. |In an action - from the issue | | | |of the writ to entry for trial|9 months | |2. |In proceedings commenced by | | | |originating summons to which | | | |appearance is required - from | | | |the issue of the originating | | | |summons to application for the| | | |appointment for the attendance|6 months | | |of the parties for the hearing| | | |of the summons | | (3) The Case Management Registrar has power - (a) to extend standard times of his own motion or upon the request in writing of a party; (b) to call upon the parties to explain in writing why standard times have not been followed, at such times as he may require; (c) to issue a summons to all the parties to the proceedings to explain why the entry or application for appointment has not occurred within the standard time and to direct the parties to file such affidavits in response to the summons at such times as he shall think fit; (d) on the return of the summons referred to in subparagraph (c), to - (i) make an order extending the standard time in relation to the proceedings; (ii) give such directions to lead to the efficient and timely disposal of the proceedings as he considers just and expedient; and (iii) make such orders as to the payment of costs of the parties appearing before him on an indemnity basis to be fixed as he thinks fit, payable within 14 days; (e) to exercise the powers as to self-executing orders and costs given under subparagraph (f) if a party fails to attend in obedience to a summons or affidavits are not filed by a party as directed; (f) if the standard time is extended under subparagraph (d) but the entry or application for appointment does not occur within the extended time, to issue a further summons to the parties to explain why it has not occurred and to further extend the standard time and to give such further directions and make such further orders (other than for attachment or committal) to secure the occurrence of that event, including such self- executing orders for judgment, striking out pleadings or otherwise and such costs orders as he may consider necessary and in particular to exercise the powers of the Court under Order 66 Rule 5; (g) for the purposes of this Order to exercise all the powers of the Court in relation to the admission of evidence and when there is no solicitor on the record for a party which is a body corporate, to permit a person who is not a solicitor to represent the body corporate. (4) Where the Case Management Registrar makes a request under paragraph (3)(b) the parties and their solicitors shall provide him with the information he requires within the time specified and shall serve the same upon every other party. [Rule 4 inserted in Gazette 26 Mar 1993 p. 1843-4; amended in Gazette 24 Oct 1995 p. 4917; 28 Oct 1996 p. 5683.] 4A. Failure to comply with standard times deemed in certain circumstances Where a cause, matter or issue is entered for trial and - (a) the entry for trial is countermanded; or (b) the action is struck out of the list, that cause, matter or issue is deemed to be a cause, matter or issue - (c) which has not been entered for trial; and (d) with which there has been a failure to comply with standard times which have been extended in accordance with Rule 4(3)(d). [Rule 4A inserted in Gazette 29 Jun 1993 p. 3166; amended in Gazette 26 Aug 1994 p. 4412.] 5. Summons for directions (1) A summons for directions may be taken out by any party in any cause or matter at any time before entry for trial or thereafter by leave of the Court, but if the defendant is required to appear in the proceedings it may be taken out only after he has appeared. (2) The summons shall specify the orders or directions which are sought. (3) A summons for directions shall not be taken out for directions that amend or cancel or are inconsistent with a case management direction made under Order 29A. [Rule 5 inserted in Gazette 26 Mar 1993 p. 1844-5; amended in Gazette 28 Oct 1996 p. 5683.] 6. Directions hearings (1) The parties to proceedings and their advisers shall give such information and produce such documents on any directions hearing as the Court may reasonably require, unless the information or documents are subject to privilege. (2) The Court shall adjourn any directions hearing from time to time until the conclusion of the cause or matter. (3) Where practicable a party shall apply at the hearing of the summons for any order or directions which he may desire in relation to any matter capable of being dealt with on an interlocutory application in the action and shall give the other parties 2 clear days' notice specifying those orders or directions which differ from the orders or directions sought by the summons. (4) Any application subsequent to a summons for directions and before judgment as to any matter capable of being dealt with on an interlocutory application in the action shall be made under the summons on 2 clear days' notice to any other party stating the ground of the application and specifying the orders or directions sought. [Rule 6 inserted in Gazette 26 Mar 1993 p. 1845.] Order 29A - Case management [Heading inserted in Gazette 28 Oct 1996 p. 5684.] Part 1 - Preliminary [Heading inserted in Gazette 28 Oct 1996 p. 5684.] 1. Application (1) The Order applies to cases commenced on or after 1 November 1996 other than - (a) a case that is entered in the Expedited List under Order 31A; and (b) a case that the Chief Justice directs is to be included in the Long Cause List. (2) This Order does not prevent the Court making a direction under Order 29 Rule 2 in a case to which this Order applies. (3) The fact that a direction is made by the Court under Order 29 Rule 2 in a case to which this Order applies does not prevent the application of this Order to that case. [Rule 1 inserted in Gazette 28 Oct 1996 p. 5684.] 2. Definitions In this Order, unless the contrary intention appears - case means any action, cause, or matter, that is an original proceeding between a plaintiff and a defendant; case management direction is defined in Rule 3; enforcement order is defined in Rule 4; mediator means a person approved as such by the Chief Justice, or a Mediation Registrar (as defined in Order 29). [Rule 2 inserted in Gazette 28 Oct 1996 p. 5684.] 3. Case management directions (1) A case management direction is a procedural direction for the purpose of leading to the efficient and timely disposal of the proceedings. (2) A case management direction may - (a) dispense with all or any or any further pleadings; (b) order specified pleadings to be filed; (c) dispense with any interlocutory pleadings or steps; (d) direct that a certificate of readiness is not required for the purposes of Order 33 or Order 58 Rule 19; (e) direct the parties or counsel to file and exchange memoranda before the hearing of any interlocutory application in order to clarify the matters in issue before the hearing; (f) direct that an interlocutory application be dealt with, or a conference be held, by telephone, videophone or other similar means of communication; (g) direct that an interlocutory application be dealt with, and any evidence in relation to it be provided, by fax, telegram, telex, courier post or other similar means; (h) give directions as to the use of videotapes, films, computers and other equipment in any interlocutory proceeding; (i) give directions for the speedier and more effective recording of evidence at any interlocutory proceeding; (j) direct any or all of the parties to confer on a "without prejudice" basis for the purpose of identifying, resolving and narrowing the points of difference between them; (k) direct that a conference directed under subparagraph (j) be conducted by a mediator; but shall not, without the consent of the parties, direct that a conference take place where a party would become liable to remunerate a mediator; (l) in relation to a conference directed under subparagraph (j), set the terms or conditions for the conference and deal with anything in relation to the conference; (m) direct that experts, whose reports have been exchanged under Order 36A, confer on a "without prejudice" basis for the purpose of identifying, resolving and narrowing the points of difference between them; (n) direct a party ("A") intending to produce a plan, photograph, model or other object (the object) at trial to serve on the other party ("B"), at a time specified, a written notice - (i) describing the object; (ii) stating where and when it may be inspected; and (iii) requiring B to serve A, within 7 days after the service of the notice, a written notice agreeing or refusing to agree to the admission in evidence of the object without further proof of it; (o) direct a solicitor for a party to give the party a memorandum stating - (i) the approximate costs and disbursements of the party to the date of the memorandum; (ii) the estimated future costs and disbursements of the party to but not including the trial; (iii) the estimated length of the trial and the estimated costs and disbursements of the trial; (iv) the estimated party and party costs that would be payable by the party if the party were unsuccessful at trial; (p) in exceptional circumstances direct that an application by a party under this Order operate as a stay of proceedings; (q) in exceptional circumstances or if not to do so would frustrate the appeal, direct that an appeal against a Case Management Registrar's decision under this Order operate as a stay of proceedings; (r) direct that an application for an adjournment of any proceeding be supported by affidavits of specified people; (s) give directions to assist the convenience of the parties or witnesses; (t) give directions as to the manner in which the parties shall defray the costs of giving effect to any case management direction; (u) direct that a specified case management direction be complied with by a set date. (3) A case management direction shall not order the attachment or committal of a person. (4) A case management direction is not enforceable by writ of attachment or order of committal. [Rule 3 inserted in Gazette 28 Oct 1996 p. 5685-7; amended in Gazette 16 Jul 1999 p. 3188; 22 Feb 2008 p. 635.] 4. Enforcement orders An enforcement order is - (a) an order as to the payment of costs; (b) an order as to the payment of costs of the parties on an indemnity basis, to be fixed in a manner specified in the order, and payable within 14 days after the order; (c) a self-executing order for judgment, striking out pleadings, or otherwise; (d) an order under Order 66 Rule 5. [Rule 4 inserted in Gazette 28 Oct 1996 p. 5687.] 5. Inconsistencies with other Rules If a Rule of this Order is inconsistent with these Rules, the Rule of this Order prevails. [Rule 5 inserted in Gazette 28 Oct 1996 p. 5687.] Part 2 - Case management conferences [Heading inserted in Gazette 28 Oct 1996 p. 5688.] 6. Status conference (1) A Case Management Registrar shall summons all parties to a case to attend a status conference before such a Registrar. (2) The status conference shall be held within 21 days after the first appearance is entered in the case or at a later time decided by a Case Management Registrar. (3) If within 6 months after a case is commenced an affidavit of service of the writ, originating motion or originating summons has been filed but no appearance has been entered in the case, a Case Management Registrar may summons the plaintiff to a status conference. (4) The status conference shall be held even if, at the time of the conference, not all parties to the case have been served with the originating process or have entered appearances. (5) At the status conference the Case Management Registrar is to review the documents on the Court file and inquire into these matters: (a) whether pleadings or any specified pleadings are necessary; (b) the state of the pleadings and whether the times prescribed by these Rules for pleadings are being complied with and if not, why; (c) whether any party intends to commence third party or similar proceedings under Order 19; (d) whether any party intends to require discovery and inspection under Order 26; (e) whether any party intends to interrogate under Order 27; (f) whether a conference of the parties with a mediator is needed and if so, when; (g) the likely length of the trial; and (h) any other matter relevant to ensuring the case is managed in accordance with Order 1 Rule 4B. (6) At the status conference the Case Management Registrar may at the request of a party or the parties or on the Registrar's own initiative - (a) subject to Order 60A, make any interlocutory order that the Registrar thinks fit; (b) make any case management directions that the Registrar thinks fit; (c) make any enforcement orders that the Registrar thinks fit; (d) make an order that Rule 7 does not apply to the case. (7) A Case Management Registrar may adjourn the status conference from time to time. [Rule 6 inserted in Gazette 28 Oct 1996 p. 5688-9; amended in Gazette 16 Jul 1999 p. 3188.] 7. Case evaluation conference (1) Subject to any order made under Rule 6(6)(d), a Case Management Registrar shall summons all parties to a case to attend a case evaluation conference before such a Registrar. (2) The case evaluation conference shall be held within 28 weeks after the initial appearance to the summons to the status conference or at a later time decided by a Case Management Registrar. (3) The case evaluation conference shall be held even if, at the time of the conference, not all parties to the case have been served with the originating process or have entered appearances. (4) At the case evaluation conference the Case Management Registrar is to review the documents on the Court file and inquire into these matters: (a) the state of the pleadings and if at that time, they are not closed, why; (b) whether a conference of the parties with a mediator is needed and if so, when; (c) the content of any reports by experts that have been or may be exchanged under Order 36A and whether a conference between them is needed; (d) whether the case, at the time of the listing conference, will be ready for trial and if not, why; (e) whether the estimated length of the trial is still accurate; (f) the number of witnesses to be called at the trial, whether there are any known difficulties as to the availability of any witness, and the estimated time it will take for them to give their evidence; and (g) the administrative resources likely to be needed for the trial. (5) At the case evaluation conference the Case Management Registrar may at the request of a party or the parties or on the Registrar's own initiative - (a) subject to Order 60A, make any interlocutory order that the Registrar thinks fit; (b) make any case management directions that the Registrar thinks fit; (c) make any enforcement orders that the Registrar thinks fit. (6) A Case Management Registrar may adjourn the case evaluation conference from time to time; but not to a date on or after the date of the listing conference. [Rule 7 inserted in Gazette 28 Oct 1996 p. 5689-90; amended in Gazette 16 Jul 1999 p. 3188.] 8. Listing conference (1) A listing conference shall be held before a Judge in chambers. (2) The listing conference shall be held as soon as practicable after the case is entered for trial or, in the case of an originating summons, after an application is made for an appointment for the attendance of the parties for the hearing of the summons. (3) At the listing conference the Judge may review the documents on the Court file and inquire into these matters: (a) whether the case can be settled; (b) which documents will be admitted at trial by consent; (c) the number of witnesses to be called at the trial, whether there are any known difficulties as to the availability of any witness, and the estimated time it will take for them to give their evidence in chief; and (d) whether the case in all respects is ready to go to trial. (4) At the listing conference the Judge may - (a) make any directions under Order 29 Rule 2 that the Judge thinks fit; (b) amend or cancel any case management direction made previously; (c) if the Judge considers it is convenient to do so to facilitate the preparation for, or the conduct of, the trial, or is otherwise desirable - (i) after giving notice to the parties, determine any question of law; or (ii) determine any question of procedure. (5) The Judge may adjourn the listing conference from time to time. (6) At the listing conference the Judge may fix the date of the trial of the case and the length of the trial. [Rule 8 inserted in Gazette 28 Oct 1996 p. 5690-1.] Part 3 - General [Heading inserted in Gazette 28 Oct 1996 p. 5691.] 9. Other parties to be served within 24 hours If under this Order a document has to be filed and served, a copy of the document shall be served within 24 hours after it is filed. [Rule 9 inserted in Gazette 28 Oct 1996 p. 5691.] 10. Who is to attend conferences (1) A conference required or directed under this Order, other than a listing conference, shall be attended by each party to the case and the solicitor or counsel, if any, representing each party, unless ordered otherwise. (2) If a party is not a natural person, a representative of the party familiar with the substance of the case and with authority to compromise it shall attend. (3) If there is no solicitor on the record for a party that is a body corporate, the Case Management Registrar or Judge presiding at the conference may permit a person who is not a solicitor to represent the party. [Rule 10 inserted in Gazette 28 Oct 1996 p. 5691-2.] 11. Mediation conferences (1) If parties are directed to attend a mediation conference, each party shall, subject to any directions, take such steps as may be necessary to ensure that the conference occurs as soon as possible. (2) Each party's costs of and incidental to a mediation conference shall be the party's costs in the cause, unless it is ordered otherwise or the parties agree; but a party may apply for those costs if they have been unnecessarily incurred due to the conduct of the other party. (3) The fees and expenses of any mediator who is not a Mediation Registrar are to be paid by the parties in equal shares, unless it is ordered otherwise or the parties agree. (4) Within 2 weeks after the conclusion of a mediation conference the plaintiff shall lodge with the Court a report, signed by or on behalf of each party - (a) confirming that the conference has occurred as directed; and (b) recording the substance of any resolution or narrowing of the points of difference between the parties achieved as a result of the conference. (5) A mediator - (a) shall not, unless the parties agree, report to the Court on a mediation conference; (b) whether or not the parties agree, may report to the Court on any failure by a party to cooperate in a mediation conference; but the report shall not be disclosed to the trial judge except for the purposes of determining any question as to costs. (6) A direction that parties attend a mediation conference does not operate as a stay of proceedings, unless otherwise ordered. [Regulation 11 inserted in Gazette 28 Oct 1996 p. 5692-3.] 12. Applications at case management conferences (1) A party to a case may at any time apply to a Case Management Registrar - (a) for any interlocutory order that under Order 60A a Case Management Registrar has jurisdiction to make; (b) for any case management direction to be made under this Order; (c) to have a case management direction made by a Case Management Registrar amended or cancelled. (2) The application is to be made by filing an application in Form No. 18A and serving it on the other parties. (3) A Case Management Registrar, on receipt of the application - (a) may deal with the application or refer it to a Master under Order 60A Rule 3, without requiring the parties to attend a hearing; or (b) subject to Order 60A Rule 3, may deal with the application at the status conference or the case evaluation conference (as the case may be) and for that purpose may relist such a conference. [Rule 12 inserted in Gazette 28 Oct 1996 p. 5693.] 13. Judges and Masters may amend or cancel directions A Judge or a Master at any interlocutory proceeding, or a Judge at trial, who is satisfied there are exceptional reasons for doing so, may amend or cancel a case management direction made by a Case Management Registrar. [Rule 13 inserted in Gazette 28 Oct 1996 p. 5693.] 14. Non-compliance with case management direction: duty to notify etc. (1) A party to a case shall forthwith file, and serve on the other parties, a notice of any non-compliance by another party with an interlocutory order or a case management direction made in respect of the case by a Case Management Registrar, or with a direction made under this Order by a Master or a Judge. (2) A Case Management Registrar, on receipt of such a notice or on becoming aware of such a non-compliance, may relist the status conference or the case evaluation conference (as the case may be), unless such a conference is already listed. [Rule 14 inserted in Gazette 28 Oct 1996 p. 5694.] 15. Cases that are struck out etc. If a case is entered for trial and - (a) the entry for trial is countermanded; or (b) the case is struck out of the list, this Order (other than Rule 6) again applies to the case and for that purpose a Case Management Registrar shall again summons all parties to attend a case evaluation conference under Rule 7. [Rule 15 inserted in Gazette 28 Oct 1996 p. 5694.] Part 4 - Inactive Cases List [Heading inserted in Gazette 21 Feb 2007 p. 537.] 16. Definition In this Part - Inactive Cases List means a list of inactive cases kept by the Principal Registrar under rule 19(1). [Rule 16 inserted in Gazette 21 Feb 2007 p. 537.] 17. Registrar may issue summons to show cause (1) A Case Management Registrar may at any time summons all parties to a case to attend a hearing before such a Registrar to show cause why the case should not be put on the Inactive Cases List. (2) The hearing date for the summons must be at least 7 days after the date on which it is issued. (3) The issue of the summons does not prevent any party to the case from taking any procedural step in the case. (4) At the hearing a Case Management Registrar may order that the case be put on the Inactive Cases List if not satisfied that the case is being conducted in a timely way, having regard to the requirements of these rules and the circumstances of the case. (5) An order may be made under subrule (4) in the absence of any party. [Rule 17 inserted in Gazette 21 Feb 2007 p. 537.] 18. Springing order that case be put on Inactive Cases List (1) A judge, master or registrar making an interlocutory order in a case may include an order that unless the interlocutory order is complied with by a date stated in the order, the case is to be put on the Inactive Cases List. (2) Unless countermanded by a judge, master or registrar, before it has effect, the order has effect according to its terms. [Rule 18 inserted in Gazette 21 Feb 2007 p. 537-8.] 18A. Cases inactive for 12 months deemed inactive If no procedural step is taken in a case for 12 months by any party to the case, the case is to be taken to be inactive unless a judge, master or Case Management Registrar orders otherwise. [Rule 18A inserted in Gazette 22 Feb 2008 p. 636.] 19. Parties to be notified of case being on Inactive Cases List and to advise clients (1) When an order is made under rule 17, or an order made under rule 18 takes effect, or a case is to be taken to be inactive under rule 18A, the Principal Registrar must - (a) put the case on the Inactive Cases List; and (b) give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rule 21. (2) As soon as practicable after being notified under subrule (1), the solicitor for a party to the case must notify the party - (a) of the fact that the case has been put on the Inactive Cases List and why; and (b) the effect of rule 21. [Rule 19 inserted in Gazette 21 Feb 2007 p. 538; amended in Gazette 22 Feb 2008 p. 636.] 20. Consequences of a case being on Inactive Cases List (1) If a case is on the Inactive Cases List, no document in relation to the case, other than a summons for an order under subrule (2), can be filed in the Court. (2) Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be removed from the Inactive Cases List. (3) An order that a case be removed from the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way. [Rule 20 inserted in Gazette 21 Feb 2007 p. 538.] 21. Cases on Inactive Cases List for 6 months to be taken to have been dismissed (1) A case that has been on the Inactive Cases List for 6 continuous months is to be taken to have been dismissed for want of prosecution. (2) When under subrule (1) a case is dismissed, the Principal Registrar must give all parties to the case written notice of the fact. [Rule 21 inserted in Gazette 21 Feb 2007 p. 538.] Order 30 - Admissions 1. Admission of other party's case Without prejudice to Order 20 Rule 14 any party to a cause or matter may give notice by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of any other party. 2. Notice to admit facts (1) A party to a cause or matter may by notice in writing at any time not later than 7 days before the day for which notice of trial has been given or which has otherwise been appointed for trial serve on any other party a notice requiring him to admit, for the purpose of that cause or matter only, a fact or facts specified in the notice. (2) Any admission made in pursuance of a notice to admit facts shall not be used against the party by whom it was made in any cause or matter other than the cause or matter for the purpose of which it was made, or in favour of any person other than the person by whom the notice was given. (3) The Court may at any time allow a party to amend or withdraw an admission made under this Rule on such terms as may be just. 3. Judgment on admissions (1) Where admissions of fact have been made on the pleadings or otherwise, any party may at any stage of a cause or matter apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may on such application make such order or give such judgment as the Court thinks just. (2) An application under this Rule may be made on motion or by summons. 4. Admission and production of documents (1) A party on whom a list of documents is served in pursuance of any provision of Order 26 (which relates to the discovery and inspection of documents) shall unless the Court otherwise orders, and without prejudice to his right to object to the admission in evidence of any document, be deemed to admit - (a) that a document if described in the list as an original document, is an original document and was printed, written, signed or executed as it purports to have been; or (b) that a document if described in the list as a copy, is a true copy. (2) Paragraph (1) does not apply - (a) to a document the authenticity of which has been denied by a party in his pleading; or (b) to a document concerning which a party within 14 days after the time limited under Order 26 for inspection serves on the party giving inspection, a notice that he disputes the authenticity of that document. (3) Where a party serves on any other party a list of documents in pursuance of Order 26 the party serving the list shall be deemed to have been served on the date of service of the list, with a notice requiring production by him at the trial of the cause or matter, of such of the documents specified in the list as are in his possession, custody or power. (4) Paragraphs (1), (2) and (3) apply in relation to an affidavit made in compliance with an order under Order 26 Rule 6, as they apply to a list of documents served under that Order. 5. Notice to admit documents (1) A party to any proceedings may serve on any other party a notice requiring him to admit for the purpose of those proceedings only, the authenticity of the documents specified in the notice, and the notice must specify a reasonable time and place for inspection. (2) If, in relation to any document specified in the notice, the party on whom a notice under paragraph (1) is served does not within 7 days after the time limited for inspection serve on the party giving the notice, a notice disputing the authenticity of the document, its authenticity shall, unless the Court otherwise orders, be deemed to be admitted by the party on whom the notice under paragraph (1) is served. (3) Except where Rule 4(3) applies, a party to any proceedings may serve on any other party a notice requiring him to produce at the trial or hearing the documents specified in the notice. Order 31 - Special cases and stated cases 1. Questions of law (1) The parties to any cause or matter may concur in stating the questions of law arising therein in the form of a special case for the opinion of the Court or of the Court of Appeal. (2) The special case shall be divided into paragraphs numbered consecutively and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised by the special case. (3) Upon the argument of the case the Court and the parties may refer to the whole contents of the documents stated. [Rule 1 amended in Gazette 15 Jun 1973 p. 2248; 29 Apr 2005 p. 1795.] 2. Preliminary question of law (1) If it appears to the Court that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a Referee or an arbitrator, the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court may deem expedient. (2) All such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed. 3. Preparation of case (1) Every special case shall be prepared by the plaintiff or the party having the carriage of the proceedings and shall be signed by the several parties or their counsel or solicitors, and shall be filed by the plaintiff or the party having carriage of the proceedings. (2) At least 14 days before the day appointed for argument the plaintiff or the party having the carriage of the proceedings shall lodge at the Central Office copies of the special case for the use of the Judge or Judges hearing the argument, and in default thereof the other party may on the day following, lodge such copies. 4. Person under disability - leave to set down (1) A special case in any cause or matter to which a person under disability is a party shall not be set down for argument without the leave of the Court. (2) An application for leave under paragraph (1) shall be supported by sufficient evidence that the statements contained in the special case, so far as they affect the interest of the party under disability, are true. 5. Entry of special case for argument (1) Either party may enter a special case for argument before the Court, by filing a memorandum of entry, and if a person under disability is a party, by producing an office copy of the order giving leave to enter the same for argument. (2) On the day on which a special case is entered for argument the party entering it shall serve notice of the entry on all other parties. 6. Agreement as to payment of money and costs (1) The parties to a special case may, if they think fit, enter into an agreement in writing that, on the judgment of the Court being given in the affirmative or negative of the question or questions of law raised by the special case, a sum of money, fixed by the parties, or to be ascertained by the Court or in such manner as the Court may direct, shall be paid by a party to another party, either with or without costs of the cause or matter. (2) The judgment of the Court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal. 7. Reference of case to Court of Appeal (Act s. 58(1)(d)) A Judge may order that a special case which has been set down for hearing before the Court shall be argued before the Court of Appeal. [Rule 7 amended in Gazette 29 Apr 2005 p. 1795.] 8. Cases stated outside the Court (1) This Rule applies to cases not stated in the Court and to cases stated by any tribunal which is empowered or may be required to state a case on a question of law for determination by or the opinion of the Court. (1a) This Rule does not apply to a case stated by a tribunal which is empowered or may be required to state a case on a question of law for determination by or the opinion of the Court of Appeal. (2) Every case to which this Rule applies shall be entered for argument before the Court, and any party may file the memorandum of entry, and the party making the entry shall on the same day serve on all other parties a copy of the case and notice of the entry. (3) Rule 1(3), Rule 3(2) and Rule 7 shall apply to cases under this Rule as they apply to special cases stated in the Court. (4) On the hearing of the case, the Court may order it to be sent back to the tribunal for amendment with such directions (if any) as the Court thinks fit. (5) The proper officer shall notify the tribunal of the decision of the Court on the case, and of any directions given by that Court thereon. (6) In this Rule tribunal includes any authority or person which or who is empowered or may be required to state a case for determination by or the opinion of the Court. [Rule 8 amended in Gazette 29 Apr 2005 p. 1791-2.] Order 31A - Expedited List [Heading inserted in Gazette 23 Feb 1990 p. 1153.] 1. Definitions In this Order - Expedited List means a list of expedited causes kept by the Principal Registrar; Expedited List Judge means a judge appointed by the Chief Justice; Expedited Proceeding means a cause or matter entered in the Expedited List. [Rule 1 inserted in Gazette 23 Feb 1990 p. 1153.] 2. Entry into Expedited List (1) A cause or matter shall not be entered in the Expedited List except upon the order of an Expedited List Judge. (2) Any party to a cause or matter, may at any time after the commencement of the cause or matter, call upon the other party or parties to show cause before an Expedited List Judge in Chambers, why the cause or matter should not be entered in the Expedited List. (3) An Expedited List Judge may order the cause or matter to be so entered. (4) A party which desires to have a cause or matter entered in the Expedited List shall apply for entry at the earliest possible time by summons on notice to the other parties supported by an affidavit setting out, in summary form - (a) the nature of the dispute; (b) the issues likely to arise; (c) the basic contentions between the parties, if known; and (d) the reasons why the cause or matter should be entered in the Expedited List. [Rule 2 inserted in Gazette 23 Feb 1990 p. 1153.] 3. Heading of documents The heading of every document filed or issued in an Expedited Proceeding shall show the words "Expedited List". [Rule 3 inserted in Gazette 23 Feb 1990 p. 1153.] 4. Timetable (1) Within 7 days after the day of the making of an order entering a cause or matter in the Expedited List, the party obtaining the order shall file and serve a summons for directions pursuant to Order 29 Rule 5. (2) The application shall include a timetable for all steps necessary for an expedited trial of the Expedited Proceeding, as well as all other directions sought. (3) A party who has been served with an application for directions under paragraph (1) shall, 2 clear days before the return day of the summons for directions, file and serve on the applicant and all other parties to the Expedited Proceeding a memorandum stating - (a) the directions to which the party consents; (b) the directions which the party intends to oppose; (c) where the party intends to oppose a direction, a brief statement of the grounds of opposition; (d) whether or not the party intends to oppose the proposed timetable; (e) where the party intends to oppose the proposed timetable, a brief statement of the grounds of opposition; (f) any modification suggested by the party to the proposed timetable; and (g) any directions sought by the party. [Rule 4 inserted in Gazette 23 Feb 1990 p. 1153-4; amended in Gazette 26 Aug 1994 p. 4414.] 5. Directions (1) An Expedited List Judge may, at any time, of his own motion require the parties to an Expedited Proceeding to attend a directions hearing. (2) An Expedited List Judge may, at any time, of his own motion, exercise the powers contained in Order 3 Rule 5. (3) An Expedited List Judge may, of his own motion or otherwise, give any directions which could be given by the Court under Order 29 Rule 2, and may give any procedural directions as he thinks fit, whether or not inconsistent with any other provision of these Rules, for the speedy and inexpensive determination of the real questions between the parties. (4) Without limiting the generality of paragraph (3), an Expedited List Judge may - (a) dispense with other pleadings or further pleadings; (b) dispense with any interlocutory proceedings or steps; (c) require the parties or counsel to file and exchange memoranda before any hearing of the Expedited Proceeding in order to clarify the matters in issue before the hearing; (d) where appropriate deal with applications or hold conferences by way of a telephone or video conference link-up; (e) where appropriate deal with applications, and the evidence in relation to them, by way of telegram, facsimile, telex message, or courier post; (f) give directions to assist the convenience of the parties and witnesses; (g) change the venue of the trial, or adjourn the trial part heard to continue at a different venue; (h) make use of video tape, film projection, computers and other equipment as he see fit in the proceeding; (i) make arrangements for the more speedy and effective recording of evidence; (j) appoint any person authorised in law to administer an oath to any witness giving evidence in any manner envisaged by this Rule; (k) give directions as to the manner in which the parties shall defray the costs of giving effect to any direction under this paragraph; (l) direct that a party serve on the other parties, at times within the discretion of the Expedited List Judge, a signed written statement of the proposed evidence in chief of each witness to be called by that party; and (m) direct that a signed written statement referred to in paragraph (l) or any part of it stand as the evidence in chief of the witness. (5) A direction under this Rule shall not be enforceable by writ of attachment of order of committal. (6) Any interlocutory order or direction made by an Expedited List Judge may be varied or revoked, in whole or in part, by an Expedited List Judge or by the Court at the trial. (7) An Expedited List Judge may hear any interlocutory matter relating to an Expedited Proceeding, or may refer the matter to another Judge or Master for hearing who shall exercise all powers of the Expedited List Judge. [Rule 5 inserted in Gazette 23 Feb 1994 p. 1154; amended in Gazette 30 Nov 1990 p. 5900-1.] 6. Amendment to pleadings (1) Unless an Expedited List Judge otherwise orders - (a) any party to an Expedited Proceeding may without leave amend any pleading filed within 7 weeks before the day fixed for the commencement of the trial; and (b) any other party may without leave make consequential amendments within 7 working days from service of the amendment. (2) Within 7 days after the service on a party of a pleading amended under this Rule that party may apply to the Expedited List Judge to disallow the amendment. (3) Where the Expedited List Judge hearing an application under this Rule is satisfied that if an application to make the amendment in question had been made under Order 21 Rule 5 at the date when it was made under this Rule, leave to make the amendment or part of the amendment would have been refused, he shall order the amendment or that part of it to be struck out. (4) Any order made on an application under this Rule may be made on such terms as to costs as the Expedited List Judge thinks fit. (5) The Expedited List Judge shall, when exercising his discretion to grant or refuse leave to make an amendment, take into account any injustice that may be caused by the amendment, directly or indirectly, affecting the position of the Expedited Proceeding in question in the Expedited List. [Rule 6 inserted in Gazette 23 Feb 1990 p. 1154-5.] 7. Adjournments If an application is made to an Expedited List Judge or the Court at the trial for an adjournment of the trial of an Expedited Proceeding, the Judge, when exercising his discretion under Order 34 Rule 4 shall take into account any injustice that may be caused by the adjournment affecting the position of the Expedited Proceeding in the Expedited List. [Rule 7 inserted in Gazette 23 Feb 1990 p. 1155.] 8. Interrogatories (1) Order 27 Rule 1(1) shall not apply to an Expedited Proceeding. (2) An Expedited List Judge may, in his discretion, give leave to any party to an Expedited Proceeding to file and serve upon any other party, within the period limited by the Expedited List Judge for this purpose, a notice requiring the party served to answer interrogatories relating to any matter in question between the interrogating party and the party served. (3) A party required under paragraph (2) to answer interrogatories shall answer the interrogatories by filing within 14 days of the day on which the interrogatories were served the statement referred to in Order 27 Rule 1(2) and the verifying affidavit, if requested, and serving on the interrogating party within the same time a copy of the document or, as the case may be, of each document filed. [Rule 8 inserted in Gazette 23 Feb 1990 p. 1155; amended in Gazette 28 Oct 1996 p. 5694.] 9. Plan, photograph or model (1) A party intending to produce a plan, photograph or model at trial shall at a time to be directed by the Expedited List Judge serve on the other party a notice in writing - (a) specifying the plan, photograph or model; (b) stating where and when it may be inspected; and (c) requiring the other party to serve upon him, within 7 days of service of the notice, a written notification agreeing or refusing to agree to the admission in evidence without further proof of the plan, photograph or model. (2) Where a party gives notification that he refuses to agree to the admission of a plan, photograph or model without further proof, and the plan, photograph or model is admitted into evidence at the trial as part of the case of the party serving the notice under paragraph (1), the party giving the notification shall pay any costs of proving the plan, photograph or model unless the trial Judge otherwise orders. [Rule 9 inserted in Gazette 23 Feb 1990 p. 1155.] 10. Mediation (1) An Expedited List Judge may, on any terms he thinks fit, direct at any time that the parties confer on a "without prejudice" basis for the purpose of resolving or narrowing the points of difference between them. (2) In the absence of any other order - (a) the conference will take place at the time and place as directed; (b) each party shall attend the conference or if a party is not a natural person, a representative of that party familiar with the substance of the litigation and with authority to compromise it, and the solicitor or counsel, if any, representing each party; (c) within 2 weeks after the conclusion of the conference, the plaintiff will lodge with the Associate to the Expedited List Judge, a report, signed by or on behalf of each party - (i) confirming that the conference has occurred as directed; and (ii) recording the substance of any resolution or narrowing of the points of difference between the parties resulting from the conference. (3) An Expedited List Judge may direct that the Principal Registrar should conduct the conference. (4) An Expedited List Judge, may on any terms he thinks fit, direct that experts, whose reports have been exchanged pursuant to Order 36A, consult on a "without prejudice" basis, for the purpose of narrowing any points of difference between the experts and identifying any remaining points of difference. (5) A direction under this Rule shall not be enforceable by writ of attachment or order of committal. [Rule 10 inserted in Gazette 23 Feb 1990 p. 1155-6.] 11. Referees (1) An Expedited List Judge may of his own motion or on application by any party refer any question or issue of fact in an Expedited Proceeding to a Referee and direct the Referee to make a report. (2) An Expedited List Judge may give any instructions he thinks fit to the Referee in relation to a reference under paragraph (1) and to the report. (3) An Expedited List Judge may - (a) determine the amount of the fees to be paid to a Referee; and (b) direct how, when and by whom the whole or any part of the fees referred to in subparagraph (a) are to be paid. (4) An Expedited List Judge may give directions for the provision - (a) of services of officers of the Court; and (b) of Court rooms and other facilities, for the purpose of any reference to a Referee. (5) Where a Referee is appointed under paragraph (1) the Expedited List Judge may give directions with respect to the conduct of proceedings under the reference. (6) Evidence before the Referee - (a) may be given orally or in writing; and (b) shall, if the Referee so requires, be given on oath or affirmation or by affidavit. (7) Evidence additional to the evidence taken before the Referee may not be adduced before the Court except with the leave of the Court. (8) An Expedited List Judge or the Judge at the trial of the Expedited Proceeding may, of his own motion or on application by any party or a Referee set aside or vary any order under paragraph (1) or paragraph (5). (9) To the extent that it is not inconsistent with this Rule, Order 35 shall apply to the appointment of a Referee by an Expedited List Judge. [Rule 11 inserted in Gazette 23 Feb 1990 p. 1156.] 12. Entry for trial (1) An Expedited Proceeding shall be entered for trial in accordance with the directions of an Expedited List Judge. (2) Order 33 shall not apply to Expedited Proceedings. (3) Where an order is made that an Expedited Proceeding be entered for trial, the party obtaining the order shall forthwith file a formal entry for trial. [Rule 12 inserted in Gazette 23 Feb 1990 p. 1156.] 13. Removal from the Expedited List An Expedited List Judge may at any time, on the application of any party or on his own motion, order that an action in the List be removed from the List. [Rule 13 inserted in Gazette 23 Feb 1990 p. 1156.] 14. Inconsistencies with other Rules Where any of the Rules of this Order are inconsistent with these Rules the Rules of this Order, in relation to Expedited Proceedings, shall prevail. [Rule 14 inserted in Gazette 23 Feb 1990 p. 1156.] Order 32 - Place and mode of trial 1. Place of Trial Where the plaintiff proposes that the action be tried elsewhere than in Perth, he shall name in his writ the circuit town at which he proposes that it shall be tried and the action shall, unless the Court otherwise orders, be tried at sittings of the Court at that town. [Rule 1 inserted in Gazette 27 Aug 1976 p. 3223.] 2. Application for trial by jury The application for an order for the trial by a jury of any cause or matter, or of any issue of fact, shall be made not later than 7 days after the cause, matter, or issue has been entered for trial. 3. Usual mode of trial In every cause or matter, unless an order for trial with a jury has been made, the mode of trial shall be by a Judge without a jury, but in any such case the Court may at any time order that any cause, matter, or question or issue of fact shall be tried by a Judge with a jury, or by a judge sitting with assessors, or by a referee with or without assessors. 4. Time of trial of questions or issues The Court may order that any question or issue arising in a cause or matter whether of law or fact or partly of law and partly of fact, and whether raised by the pleadings or by agreement of the parties or otherwise be tried separately from any other question or issue whether before at or after the trial or further trial of the proceedings, and may direct that a case and the question or issue for decision be stated. 5. Issues may be tried differently In any cause or matter the Court may at any time, or from time to time, order that different questions or issues arising therein be tried at different places or by different modes of trial, and that one or more questions or issues be tried before the others. 6. Trial with jury by a single Judge A trial of a question or issue of fact with a jury shall be by a single Judge. 7. Disposal of action Where the decision of a question or issue under this Order - (a) substantially disposes of the cause or matter; or (b) renders unnecessary the trial or further trial of the cause or matter, the Court may dismiss the cause or matter or give such judgment or make such other order as the nature of the case requires. 8. Trial by jury, precepts for etc. If an order for trial by jury is made, Part 13 of the Criminal Procedure Rules 2005, with any necessary changes, applies for the purposes of the Juries Act 1957 and its application to the trial. [Rule 8 inserted in Gazette 29 Apr 2005 p. 1801.] Order 33 - Entry for trial 1. Time for entering action Subject to Rule 8, a cause, matter or issue may be entered for trial by the plaintiff - (a) when the pleadings are closed; (b) at any time after the issues of fact have been stated; or (c) in the case of trial on affidavit, after the time for closing the evidence has expired. 2. When plaintiff in default, other party may act (1) Where the plaintiff neglects to enter the cause, matter or issue for trial, any party on the record who is entitled to be heard generally or on any issue may - (a) subject to Rule 8, enter the cause, matter or issue for trial; or (b) apply to the Court for an order dismissing the cause or matter for want of prosecution so far as concerns the plaintiff's claim or the issue raised by the plaintiff against the party so applying. (2) On an application to dismiss the cause or matter for want of prosecution, the Court may make such order as may be just either dismissing the claim or striking out the issue or permitting it to go to trial with or without the imposition of terms. (3) For the purpose of this Rule, the plaintiff has neglected to enter a cause, matter or issue for trial where he does not make the entry within 4 weeks after the requirements of Rule 1(a), (b) or (c) (whichever shall be applicable) have been satisfied. 3. Notice of entry (1) A party who has entered a cause, matter or issue for trial shall on the day of entry give notice thereof in writing to every party on the record who is entitled to be heard generally or on any issue. (2) This Rule does not affect the provisions of Order 13 Rule 7(2) and (3). 4. Form of entry for trial (1) The entry for trial and notice of trial shall state whether it is for the trial of the cause or matter or of an issue therein and shall state the place of trial. (2) Entry for trial and notice of trial shall be in such form and contain such information as the Chief Justice shall direct from time to time. 5. Time to elapse before hearing A cause, matter or issue shall not be tried before the expiration of 14 days from the day of entry unless the party to whom notice of trial is given has consented or is under terms to accept shorter notice of trial, or the Court otherwise orders. 6. Entry for Perth Entry for trial at the civil sittings in Perth shall not operate for any particular sittings, but shall be deemed to be for the day fixed by the proper officer, or by order of the Court. 7. Entry for Circuit Court Entry for trial in a Circuit Court shall be for the first sittings to be held 28 days next after the entry is made, unless the Court otherwise orders. [Rule 7 amended in Gazette 24 Jun 1977 p. 1914.] 8. Certificate of readiness for trial required (1) A party shall not enter a cause or issue for trial unless he is ready for trial and has filed a certificate of readiness. (2) The certificate referred to in paragraph (1) - (a) shall be in such form and contain such information as the Chief Justice shall direct from time to time; and (b) shall be signed personally and in his own name by the solicitor for the party making the entry or by that party where he is not represented by a solicitor. (3) A copy of the certificate shall be served with the notice of trial. 8A. Affidavit of service of notice of entry for trial Within 7 days of filing a notice of entry for trial, the party entering the cause, matter or issue for trial shall file an affidavit of service of the notice of entry on all the other parties on the record, unless all the other parties have filed a certificate acknowledging receipt of the notice of entry. [Rule 8A inserted in Gazette 29 Jun 1993 p. 3167.] 8B. Application for adjournment to Judge in charge of Civil List (1) Subject to paragraph (2) after a cause, matter or issue has been entered for trial an application for - (a) adjournment of the trial; (ab) an order under Rule 9 countermanding the entry; (b) amendment of pleadings; or (c) an interlocutory application, must only be made to the Judge in charge of the Civil List or his or her nominee. (2) Notwithstanding paragraph (1) where a Judge has been appointed to manage a cause, matter or issue pursuant to an order made under Order 29 Rule 2, an application referred to in paragraph (1) must be made to that Judge. [Rule 8B inserted in Gazette 29 Jun 1993 p. 3167; amended in Gazette 28 Oct 1996 p. 5694.] 9. Application to countermand entry (1) Within 14 days after a party has entered a cause, matter or issue for trial and has served notice of trial, any other party on the record who is entitled to be heard generally or on any issue may apply by summons on 2 clear days' notice to the party who has made the entry for an order countermanding the entry. (2) Unless otherwise ordered, the summons filed should be supported by affidavit or affidavits. (3) A party entitled to apply for an order under paragraph (1) who has failed to apply successfully for such an order within the time limited thereby shall be deemed to be ready for trial. (4) Where a party (whether applicant or respondent) is represented by a solicitor, that solicitor, or another solicitor who is conversant with the matter, shall attend personally on the return of the summons. It shall not be sufficient for a clerk in the solicitor's employment to attend on his behalf. (5) On the return of the summons the Court may countermand the entry or allow it to stand, or direct that the entry take effect upon the happening of certain events or at the expiration of such period as it may fix; or it may make such other order or give such other direction as it thinks proper. (6) Unless otherwise ordered the costs of the summons shall be costs in the cause. (7) This Rule does not affect the provisions of Rule 11(1). [Rule 9 amended in Gazette 9 Nov 1973 p. 4164; 30 Nov 1984 p. 3951; 29 Jun 1993 p. 3167; 28 Oct 1996 p. 5695.] 10. After entry no interlocutory applications without leave (1) Where a cause, matter or issue has been entered for trial, no further interlocutory applications shall be made by a party for or in relation to any of the following matters - (a) amendment of pleadings or filing of further pleadings; (b) joinder or substitution of parties; (c) particulars; (d) interrogatories, discovery or inspection or the disclosure or non-disclosure of expert evidence; or (e) taking of evidence before a special examiner or on commission, without the leave of the Court. (2) Paragraph (1) does not limit the power of the Judge at the trial to make orders for or in relation to any of the matters referred to in that paragraph. [Rule 10 amended in Gazette 13 Oct 1978 p. 3698.] 11. No withdrawal from list after date fixed except by leave (1) At any time before a date of trial has been fixed, entry for trial may be countermanded by leave of the Court on terms as to costs or otherwise as may appear just. (2) Once a date of trial has been fixed, no withdrawal from the list or adjournment shall be made except by order of the Court; but an action that has been settled may be withdrawn from the list upon production to the proper officer before the trial commences of a consent in writing signed by the parties. [Rule 11 amended in Gazette 29 Jun 1993 p. 3167.] 12. Fixing dates of trial (1) Subject to any order of the Court, dates of hearing of all causes, matters and issues shall be fixed by the proper officer in accordance with the practice of the Court. [(2) deleted] Chief Justice may give directions (3) Nothing in this Order shall prejudice any powers of the Chief Justice to give directions - (a) specifying the lists in which causes, matters or issues or causes, matters or issues of any class or description, are to be entered for trial; and providing for the keeping and publication of the lists; (b) providing for the fixing of a date for the trial of any cause, matter or issue that has been entered; (c) as to the making of applications (whether to a Court or a Judge or to an officer of the Court) to fix, vacate or alter any such date and, in particular, requiring any such application to be supported by an estimate of the length of the trial and any other relevant information; and (d) providing for the holding of callovers of causes, matters and issues which have been entered for trial but in respect of which dates of hearing have not been fixed. [Rule 12 amended in Gazette 15 Jun 1973 p. 2248; 9 Nov 1973 p. 4164.] 13. Re-listing for further consideration (1) Any trial adjourned for further consideration may be re-listed for hearing on the written request of the party having the conduct thereof or of any other party entitled to bring the same on for hearing, or on the order of a Judge. (2) Where the further consideration is requested by a party he shall on the day of making such request obtain an appointment for further consideration not less than 10 days ahead and on the same day shall give notice thereof to the other parties on the record. (3) Any such request may be in Form No. 19 and any such notice may be in Form No. 20 with such variations as the circumstances may require. 14. Papers for the Judge (1) The party making an entry for trial shall deliver to the proper officer 2 copies in book form (one of which shall be for the use of the Judge at the trial) of each of the following documents - (a) the pleadings and any affidavits ordered to stand as pleadings; (b) any request or order for particulars and the particulars given; (c) any order for directions made under Order 19 Rule 4; and (d) where an issue in an action is being entered, any order relating to the trial of that issue. (2) Where the pleadings are amended after entry for trial but before trial then, subject to any order of the Court the party who made the entry shall forthwith after the filing of the amended pleading, or of any further pleading filed in consequence of the first amendment, file 2 further copies of the whole of the pleadings as amended. (3) Where the pleadings are amended at trial a party shall, if so ordered, file 2 further copies of the whole of the pleadings as amended. (4) All copies of pleadings required by this Rule to be delivered or filed must be clear copies of the pleadings as amended, with a suitable notation of the date or dates of any amendments. (5) The party filing copies of pleadings (including copies of the pleadings as amended) shall on the day of filing or on the next following day serve a copy thereof on each of the other parties on the record. (6) The costs of preparation, filing and serving of further copies of pleadings shall be in the discretion of the Judge at trial and shall not be allowed without a certificate of the Judge. [Rule 14 amended in Gazette 10 Jan 1975 p. 50.] Order 34 - Proceedings at trial 1. Failure of both parties to appear If, when the trial of an action is called on, neither the plaintiff nor the defendant appears, the action may be struck out of the list, without prejudice, however, to the restoration thereof, on the direction of a Judge. 2. Non-appearance of either party If, when a trial is called on, one party does not appear the Judge may proceed with the trial of the action or of any counterclaim in the absence of that party. 3. Setting aside judgment given in absence of party Any judgment, order, or verdict obtained where one party does not appear at the trial may be set aside by the Court upon such terms as the Court thinks just upon application made within 14 days after the trial. 4. Adjournment of trial The Judge may if he thinks it expedient in the interest of justice, adjourn a trial for such time, and to such place, and upon such terms, if any, as he thinks fit. 5. Conduct of the trial (1) The Court (whether the trial is with or without a jury) may give directions as to the party who is to begin and the order of addresses at the trial, and subject to any such directions, the party to begin and the order of addresses shall be as provided by the following paragraphs. (2) Except in cases where the burden of proof of all issues rests with the defendant, the plaintiff shall open his case and adduce evidence. (3) If at the conclusion of the evidence for the party who begins, the opposite party elects to adduce no evidence, the party who begins may make an address closing his case, and the opposite party may make an address stating his case. (4) If at the conclusion of the evidence for the party who begins, the opposite party elects to adduce evidence, he may open his case, and after adducing his evidence, he may make a second address closing his case, and the party who begins may then make an address closing his case. (5) At the conclusion of all the evidence at a trial, the Court may direct the parties to submit written submissions instead of or as adjuncts to their closing addresses. [Rule 5 amended in Gazette 28 Oct 1996 p. 5695.] 5A. Time etc. limits at trial (1) A Judge may at any time by direction - (a) limit the time to be taken in examining, cross-examining or re- examining a witness; (b) limit the number of witnesses (including expert witnesses) that a party may call on a particular issue; (c) limit the time to be taken in making any oral submission; (d) limit the time to be taken by a party in presenting its case; (e) limit the time to be taken by the trial; (f) amend any such limitation. (2) In deciding whether to make any such direction, a Judge shall have regard to these matters in addition to any other matters that may be relevant: (a) the time limited for a trial must be reasonable; (b) any such direction must not detract from the principle that each party is entitled to a fair trial; (c) any such direction must not detract from the principle that each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses; (d) the complexity or simplicity of the case; (e) the number of witnesses to be called by the parties; (f) the volume and character of the evidence to be led; (g) the state of the Court lists; (h) the time expected to be taken for the trial; and (i) the importance of the issues and the case as a whole. [Rule 5A inserted in Gazette 28 Oct 1996 p. 5695-6.] 6. Evidence in mitigation of damages in libel or slander In actions for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the Judge, unless 7 days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence. 7. Inspection by Judge or jury (1) The Judge before whom any cause or matter is heard or tried may inspect any property, place or thing concerning which a question arises in the cause or matter. (2) Where a cause or matter is tried with a jury, and the Judge inspects any property, place or thing under paragraph (1), he may authorise the jury to inspect it also. 8. Judgment at or after trial The Judge may, at or after trial, direct that judgment be entered as he shall think right, or he may adjourn the case for further consideration, or leave any party to move for judgment. No judgment shall be entered after trial without the order of a Court or Judge. 9. Record of proceedings The associate or other officer present at any hearing or trial shall maintain and complete a record of proceedings at the trial in a form providing for such particulars as the Chief Justice may from time to time direct. 10. Where time occupied by trial excessive (1) The Judge may, if he considers the time occupied at a hearing or trial has been excessive, certify what time should have been so occupied, and that certificate shall be final. (2) The certificate of a Judge under paragraph (1) shall be communicated to the Taxing Officer by the associate or other officer as the case may be. 11. Entry of findings of fact on trial Upon every hearing or trial the associate or other officer shall enter all such findings of fact as the Judge may direct to be entered, and the directions, if any, of the Judge as to judgment, and the certificates, if any, granted by the Judge, in a book to be kept for the purpose. 12. Certificate for entry of judgment (1) If the Judge shall direct that any judgment be entered for any party absolutely, the certificate of the associate or other officer to that effect shall be a sufficient authority to the proper officer to enter judgment accordingly. The certificate shall be in such form and contain such information as the senior Master may direct. (2) If the Judge directs that a judgment be entered for a party subject to leave to move, judgment shall be entered accordingly upon the filing of the certificate of the associate or other officer. [Rule 12 amended in Gazette 13 Oct 1978 p. 3698; 30 Nov 1984 p. 3952.] 13. Exhibits (1) The associate shall take charge of and mark every document or object put in as an exhibit during the trial of an action, and shall make a list of the exhibits which shall form part of the record. (2) A bundle of documents put in evidence may be treated and marked as one exhibit. [Rule 13 amended in Gazette 13 Oct 1978 p. 3698.] 14. Return of exhibits (1) This rule does not apply to or in respect of any record or thing that forms part of the Court's record. (2) After judgment in an action is given, a registrar must, unless the Court has ordered otherwise - (a) by a written notice, require the party who tendered any record or thing that was admitted in evidence by the Court to collect it from the court; and (b) by a written notice, require any person who, under a subpoena, produced any record or thing to the Court that was not admitted in evidence, to collect it from the court. (3) A registrar must not act under subrule (2) until - (a) the time for commencing an appeal against the judgment expires; and (b) any appeal commenced before that time expires is decided, dismissed or discontinued. (4) Despite subrule (3), a registrar - (a) may dispose of a record or thing that the registrar considers is dangerous to retain or return to a person; or (b) may release a record or thing to a person who is entitled to custody of it if the registrar considers that - (i) it is dangerous, impracticable or inconvenient to retain the record or thing under this rule; or (ii) it is necessary for that person to have use of the record or thing. (5) If under subrule (4)(b) a registrar releases a record or thing to a person, the registrar may require the person, as a condition of being given it, to give a written undertaking to the Court as to the care, maintenance and custody of it and its re-delivery to the Court. (6) If a record or thing remains in the possession of the Court after reasonable steps have been taken to identify a person who is entitled to possession of it and to require the person to collect it from the court, a judge may order a registrar to destroy it or dispose of it in some other way. [Rule 14 inserted in Gazette 21 Feb 2007 p. 539.] [15. Deleted in Gazette 21 Feb 2007 p. 539.] 15A. Return of document or object to the person who produces the document or object (1) A party to an action who subpoenas a document or object, belonging to a person not a party to the action, which was - (a) marked for identification but not tendered; or (b) neither marked nor tendered, in the action must, at the completion of the hearing of the action, uplift the document or object forthwith and return it to the person named in the subpoena. [Rule 15A inserted in Gazette 1 Mar 1994 p. 785.] [15B. Deleted in Gazette 21 Feb 2007 p. 539.] 16. Death of party before judgment is given (1) Where a party dies after the verdict or finding of the issues of fact and before judgment is given, judgment may be given and entered notwithstanding the death of that party. (2) Paragraph (1) does not affect the power of the Court to make orders under Order 18 Rule 7(2). 17. Impounded documents Impounded documents while in the custody of the Court are not to be parted with and are not to be inspected, except on the order of a Judge or in case of documents impounded on the order of the Court of Appeal by an order of that Court. Such documents shall not be delivered out of the custody of the Court except upon an order made on motion in open court. [Rule 17 amended in Gazette 29 Apr 2005 p. 1795.] 18. Assessment of damages by a Master (1) This Rule applies where the Court orders that the amount of damages for which final judgment is to be entered shall be assessed by a Master. (2) The attendance of witnesses and the production of documents before the Master may be compelled by subpoena. (3) The Master may adjourn the inquiry from time to time. (4) The Master shall certify by indorsement upon the order by which the question is referred to him, the amount of damages found by him and shall deliver the order with such indorsement to the person entitled to the damages. (5) Such and the like proceedings may thereupon be had as to entering judgment, taxation of costs, and otherwise, as upon the finding of a jury upon an issue. (6) The directions as to service on the defendant of notice of the day fixed for the assessment of damages contained in Order 13 Rule 7 shall apply mutatis mutandis to an assessment or inquiry under this Rule. [Rule 18 amended in Gazette 9 Nov 1973 p. 4162; 30 Nov 1984 p. 3951.] 19. Damages to time of assessment (1) Where damages are to be assessed in respect of - (a) any continuing cause of action; (b) repeated breaches of recurring obligations; (c) intermittent breaches of a continuing obligation, the damages shall be assessed down to the time of assessment, including damages for breaches occurring after the proceedings were begun. (2) Paragraph (1) applies to the assessment of damages under this Order or otherwise. 20. Writ of inquiry not to be used No writ of inquiry as to damages shall be issued in any cause or matter. Order 35 - Assessors and Referees 1. Trial with assessors Trials with assessors shall take place in such manner and upon such terms as the Court shall direct. 2. Trial before a Referee Where any cause or matter, or any question or issue of fact in any cause or matter, is referred to a Referee for trial, he may, subject to the order of the Court, hold the trial at or adjourn it to any place which he may deem most convenient, and have any inspection or view, either by himself or with his assessors (if any), which he may deem expedient for the better disposal of the controversy before him. He shall, unless otherwise directed by the Court, proceed with the trial from day to day, in a similar manner as in actions tried with a jury. 3. Evidence before Referee Subject to any order by the Court ordering the same, evidence shall be taken at any trial before a Referee, and the attendance of witnesses may be enforced by subpoena, and every such trial shall be conducted in the same manner as nearly as circumstances will admit, as trials are conducted before a Judge. 4. Authority of Referee Subject to any such order as is mentioned in Rule 3, the Referee shall have the same authority with respect to discovery and production of documents, and in the conduct of any reference or trial, and the same power to direct that judgment be entered for any or either party, as a Judge of the Court. 5. No power to imprison Nothing in these Rules contained shall authorise any Referee to commit any person to prison or to enforce any order by attachment or otherwise. 6. Referee may submit question to the Court The Referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit any question arising therein for the decision of the Court, or state any facts specially, with power to the Court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the Court may direct; and the Court shall have power to require any explanation or reasons from the Referee, and to remit the cause or matter, or any part thereof, for re-trial or further consideration to the same or any other Referee; or the Court may decide the question referred to any Referee on the evidence taken before him, either with or without additional evidence as the Court may direct. 7. Notice of report Whenever a report is made by a Referee he shall cause notice thereof to be served forthwith on all parties to the trial or reference. 8. Adoption etc. of report where further consideration adjourned Where the report of the Referee has been made in a cause or matter, the further consideration of which has been adjourned, it shall be lawful for any party, on the hearing of such further consideration, without notice of motion or summons, to apply to the Court to adopt the report, or without leave of the Court to give not less than 4 days' notice of motion, to come on with the further consideration, to vary the report or to remit the cause or matter or any part thereof for re-hearing or further consideration to the same or any other Referee. 9. Application to adopt or vary report Where the report of the Referee has been made in a cause or matter, the further consideration of which has not been adjourned, any party may, by an 8 days' notice of motion, apply to the Court to adopt and carry into effect the report of the Referee, or to vary the report, or to remit the cause or matter or any part thereof for re- hearing or further consideration to the same or any other Referee. 10. Costs Where the whole of any cause or matter is referred to a Referee under an order of the Court, he may, subject to any directions in the order, exercise the same discretion as to costs as the Court could have exercised. 11. Application of this Order to other references (1) Subject to this Rule, Rules 2 to 10 apply where a cause or matter or a question or issue of fact therein is referred to a Master, a Registrar, or to a special Referee or arbitrator. (2) Rule 9 does not apply in relation to a reference to a Master. (3) The provisions of Rule 2 as to sitting from day to day do not apply where the reference is to a Master or to a Registrar. [Rule 11 inserted in Gazette 2 Jul 1982 p. 2316; amended in Gazette 30 Nov 1984 p. 3951.] Order 36 - Evidence: General 1. General rule - oral examination Subject to these Rules and to the provisions of the Evidence Act 1906, and any other Act relating to evidence, any fact required to be proved at the trial of any action by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open Court. 2. Evidence by affidavit (1) The Court may, before or at the trial or hearing of an action, order that all or any of the evidence therein shall be given by affidavit if the Court thinks that in the circumstances of the case it is reasonable so to order. (2) An order under paragraph (1) may be made on such conditions as the Court may think reasonable and in particular may give directions as to the filing and serving of the affidavits and the production of the deponents for cross-examination, but subject to such directions and any subsequent order of the Court, the deponents shall not be subject to cross-examination. (3) Subject to these Rules, evidence may be given by affidavit upon any originating summons, originating motion or petition, and on any application made by motion or summons, but the Court may order the attendance for cross-examination of the person making any such affidavit, and if such person fails to attend his affidavit shall not be used in evidence without the leave of the Court. 3. Evidence of children and other witnesses (1) This Rule applies to applications pursuant to section 106S of the Evidence Act 1906. (2) Except with leave of the Court any application for an order or direction pursuant to section 106S of the Evidence Act 1906 shall be made by summons returnable in chambers at least 14 days before trial. (3) The summons shall set out the order or the direction sought and shall be supported by an affidavit deposing to the grounds upon which the order or directions are sought. [Rule 3 inserted in Gazette 30 Oct 1992 p. 5310-11.] 4. Reception of plans etc. in evidence Unless before or at the trial the Court otherwise orders, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least 10 days before the trial the parties, other than the party who intends to produce it, are given the opportunity to inspect it and to agree to its admission without further proof. 5. Orders may be revoked An order under Rules 2 and 4, including an order made on appeal, may on sufficient cause being shown be revoked or varied by a subsequent order of the Court made before or at the trial. [Rule 5 amended in Gazette 13 Oct 1978 p. 3698.] 6. Trials of issues, references etc. The foregoing Rules of this Order apply to trials of issues or questions of fact or law, and assessments of damages as they apply to the trial of actions. 7. Depositions as evidence (1) A deposition taken in any cause or matter shall not be received in evidence at the trial or hearing of the cause or matter unless the deposition was taken pursuant to an order under Order 38 Rule 1, and - (a) the party against whom the deposition is tendered consents; or (b) the deponent is dead or beyond the jurisdiction of the Court or is unable through sickness or other infirmity to attend the trial. (2) Where a party intends to use a deposition in evidence at the trial of a cause or matter, he must notify the other party of his intention a reasonable time before the trial begins. (3) A deposition purporting to be certified under the hand of the person before whom it was taken shall be receivable in evidence without proof that the signature is the signature of that person. 8. Court documents admissible in evidence (1) Office copies of writs, records, pleadings and documents filed in the Court shall be admissible in evidence in any cause or matter, and between all persons and parties to the same extent as the original would be admissible. (2) Subject to the provisions of any Act every document purporting to be sealed with a seal of the Central Office shall be received in evidence without further proof, and any document purporting to be so sealed and to be a copy of a document filed in or issued out of the Court, shall be deemed to be an office copy of that document without further proof unless the contrary is shown. 9. Evidence at trial may be used in subsequent proceedings All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter. 10. Evidence in another cause An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just exceptions, be read on ex parte applications by leave of the Court, to be obtained at the time of making any such application, and in any other case upon the party desiring to use such evidence giving 2 days' previous notice to the other parties of his intention to read such evidence. 11. Production of documents The Court may in any cause or matter at any stage of the proceedings order the attendance of any person for the purpose of producing any writings or other documents named in the order which the Court may think fit to be produced: provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial. [12-15, 15A, 16, 16A, 17-19. Deleted in Gazette 21 Feb 2007 p. 540.] 20. Interest for the purposes of the Act s. 32 When computing interest for the purposes of section 32 of the Act, subject to any evidence adduced, the Court may use, as a guide, the rate of interest prescribed from time to time for the purposes of section 8 of the Civil Judgments Enforcement Act 2004. [Rule 20 inserted in Gazette 26 Aug 1994 p. 4412; amended in Gazette 21 Feb 2007 p. 540.] Order 36A - Expert evidence [Heading inserted in Gazette 13 Oct 1978 p. 3699.] 1. Definitions In this Order - action for personal injuries means proceedings in which a claim is made in respect of personal injuries to a person (including any illness suffered by him and any impairment of his physical or mental condition) or in respect of a person's death; medical evidence means expert evidence on medical matters; medical report means a report containing medical evidence; privilege means privilege as defined in section 32A of the Evidence Act 1906. [Rule 1 inserted in Gazette 13 Oct 1978 p. 3699.] 2. Medical evidence in actions for personal injuries (1) This Rule applies to medical evidence in actions for personal injuries. (2) Unless the Court otherwise directs, a party must serve on the other parties, in accordance with this Rule, copies of all medical reports the substance of which that party intends to rely on at the trial or hearing. (3) Copies of the medical reports mentioned in paragraph (2) shall be served not later than the following times - (a) where the report is in existence before the action is entered for trial - (i) if the report is that of the party entering the action - the time of entry; (ii) if the report is that of another party - the expiration of the time limited by Order 33 Rule 9 for an application to countermand the entry or such later time as may be fixed by an order made on any such application; (b) where the report comes into existence after the action is entered for trial, as soon as practicable thereafter. (4) Where the Court gives a direction under paragraph (2), the Court, if satisfied that it is desirable to do so, may direct that, in lieu of serving a copy of any medical report, the substance of all or any medical evidence that a party intends to rely on at the trial or hearing be disclosed in writing to such other parties and within such period as the Court may specify. (5) Except with leave of the Court, or pursuant to a direction of the Court, or where all other parties agree, no witness may give medical evidence at the trial or hearing of a cause or matter unless the substance of that evidence has been disclosed in writing to all other parties within the time limited by a direction under paragraph (4) or, where no such direction has been given, a reasonable time before trial. (6) Paragraph (5) does not apply where a party has in accordance with paragraph (2) and paragraph (3) served a copy of a medical report containing the substance of the evidence. (7) The Court may, if it thinks fit, treat the fact that a medical report contains statements by the party against whose interest the evidence is to be led or hearsay evidence as to the manner in which the personal injuries were sustained, or that it contains other evidence that would not be admissible at the trial, as a sufficient reason for giving a direction under paragraphs (2) or (4) or granting leave under paragraph (5). (8) Where a party applies for a direction under paragraph (2), the Court may inspect the report the subject of the application without disclosing its contents to any other party; and an affidavit in support of any such application shall not be required. (9) Nothing contained in this Rule requires evidence to be disclosed to a defendant who has not entered an appearance. [Rule 2 inserted in Gazette 13 Oct 1978 p. 3699-700.] 3. Other expert evidence (1) This Rule applies to expert evidence other than medical evidence in actions for personal injuries. (2) Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of a cause or matter unless the party seeking to adduce the evidence has applied to the Court to determine whether a direction should be given under this Rule and has complied with any direction given on the application. (3) The application shall be made - (a) if by the party entering the action for trial - before the action is entered; or (b) if by another party - not later than the expiration of the time limited by Order 33 Rule 9 for an application to countermand the entry or at such later time as may be fixed by an order made on any such application. (4) Where an application has been made under this Rule the Court, if satisfied that it is desirable to do so, may direct that - (a) copy of a report of an expert witness the substance of which a party intends to rely on at the trial or hearing of a cause or matter be served on; or (b) the substance of all or any expert evidence that a party intends to adduce at the trial or hearing be disclosed in writing to, such other parties and within such period as the Court may specify. [Rule 3 inserted in Gazette 13 Oct 1978 p. 3700; amended in Gazette 14 Dec 1979 p. 3870.] 4. Exceptions Rule 2(5) and Rule 3(2) shall not apply to evidence that is permitted to be given by affidavit or shall affect the enforcement under any other provisions of these Rules of a direction given under this Order, but such a direction shall not be enforceable by writ of attachment or order of committal. [Rule 4 inserted in Gazette 13 Oct 1978 p. 3700.] 5. Limitation of expert evidence The Court may, at or before the trial or hearing of a cause or matter, direct that the number of medical or other expert witnesses who may be called at the trial or hearing shall be limited as specified by the direction. [Rule 5 inserted in Gazette 13 Oct 1978 p. 3700.] 6. Disclosure of part of expert evidence The Court may give a direction under Rule 2 or Rule 3 relating to part only of the report or evidence of an expert witness. [Rule 6 inserted in Gazette 13 Oct 1978 p. 3700.] 7. Derogation of privilege Where a party is required by Rule 2 or by a direction given under that Rule or under Rule 3 to disclose any expert evidence, that party may not, after the expiration of the time fixed for disclosure by the Rule or direction, as the case may be, object, on the ground of privilege, to the evidence being disclosed. [Rule 7 inserted in Gazette 13 Oct 1978 p. 3700.] 8. Mode of application An application under this Order, if made before trial, shall be made by summons. [Rule 8 inserted in Gazette 13 Oct 1978 p. 3700.] 9. Revocation and variation of directions A direction given under this Order may on sufficient cause being shown, be revoked or varied by a subsequent direction given at or before the trial or hearing of the cause or matter. [Rule 9 inserted in Gazette 13 Oct 1978 p. 3700.] Order 36B - Subpoenas [Heading inserted in Gazette 21 Feb 2007 p. 540.] 1. Definitions (1) In this Order, unless the contrary intention appears - addressee means the person who is the subject of the order expressed in a subpoena; conduct money means a sum of money or its equivalent, such as pre- paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending; issuing officer means an officer empowered to issue a subpoena on behalf of the Court; issuing party means the party at whose request a subpoena is issued; subpoena means an order in writing requiring the addressee - (a) to attend to give evidence; or (b) to produce the subpoena or a copy of it and a document or thing; or (c) to do both of those things. (2) To the extent that a subpoena requires the addressee to attend to give evidence, it is called a subpoena to attend to give evidence. (3) To the extent that a subpoena requires the addressee to produce the subpoena or a copy of it and a document or thing, it is called a subpoena to produce. (4) If a subpoena is to be served under the Service and Execution of Process Act 1992 of the Commonwealth, this Order is subject to that Act and, with any necessary changes, applies to and in respect of the subpoena. [Rule 1 inserted in Gazette 21 Feb 2007 p. 540; amended in Gazette 22 Feb 2008 p. 636.] 2. Issuing of subpoena (1) The Court may, in any proceeding, by subpoena order the addressee - (a) to attend to give evidence as directed by the subpoena; or (b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or (c) to do both of those things. (2) An issuing officer must not issue a subpoena - (a) if the Court has made an order, or there is a rule of the Court, having the effect of requiring that the proposed subpoena - (i) not be issued; or (ii) not be issued without the leave of the Court and that leave has not been given; or (b) requiring the production of a document or thing in the custody of the Court or another court. (3) The issuing officer must seal with the seal of the Court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service. (4) A subpoena is taken to have been issued on its being sealed or otherwise authenticated in accordance with subrule (3). [Rule 2 inserted in Gazette 21 Feb 2007 p. 541.] 3. Form of subpoena (1) A subpoena must be in accordance with Form No. 22, unless it is a subpoena for which leave to serve the subpoena in New Zealand is to be sought pursuant to Order 39A in which case the subpoena must be in accordance with Form No. 23 and must be accompanied by a notice in accordance with Form No. 23A. (2) A subpoena must not be addressed to more than one person. (3) Unless the Court otherwise orders, a subpoena must identify the addressee by name or by description of office or position. (4) A subpoena to produce must - (a) identify the document or thing to be produced; and (b) specify the date, time and place for production. (5) A subpoena to attend to give evidence must specify the date, time and place for attendance. (6) The date specified in a subpoena must be the date of trial or any other date as permitted by the Court. (7) The place specified for production may be the Court or the address of any person authorised to take evidence in the proceeding as permitted by the Court. (8) The last date for service of a subpoena - (a) is the date falling 5 days before the earliest date on which the addressee is required to comply with the subpoena or an earlier or later date fixed by the court; and (b) must be specified in the subpoena. (9) If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer. [Rule 3 inserted in Gazette 21 Feb 2007 p. 541-2; amended in Gazette 22 Feb 2008 p. 636-7.] 4. Setting aside or other relief (1) The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest. [Rule 4 inserted in Gazette 21 Feb 2007 p. 542.] 5. Service (1) A subpoena must be served personally on the addressee. (2) The issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee. [Rule 5 inserted in Gazette 21 Feb 2007 p. 542.] 6. Compliance with subpoena (1) An addressee need not comply with the requirements of a subpoena to attend to give evidence unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. (2) An addressee need not comply with the requirements of a subpoena unless it is served on or before the date specified in the subpoena as the last date for service of the subpoena. (3) Despite rule 5(1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements. (4) The addressee must comply with a subpoena to produce - (a) by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the Court or to the person authorised to take evidence in the proceeding as permitted by the Court; or (b) by delivering or sending the subpoena or a copy of it and the document or thing to the Registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production. (5) In the case of a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and of the document or thing in any of the ways permitted by subrule (4) does not discharge the addressee from the obligation to attend to give evidence. [Rule 6 inserted in Gazette 21 Feb 2007 p. 542-3.] 7. Production otherwise than upon attendance (1) This rule applies if an addressee produces a document or thing in accordance with rule 6(4)(b). (2) The Registrar must, if requested by the addressee, give a receipt for the document or thing to the addressee. (3) If the addressee produces more than one document or thing, the addressee must, if requested by the Registrar, provide a list of the documents or things produced. (4) The addressee may, with the consent of the issuing party, produce a copy, instead of the original, of any document required to be produced. (5) The addressee may at the time of production inform the Registrar in writing that any document or copy of a document produced need not be returned and may be destroyed. [Rule 7 inserted in Gazette 21 Feb 2007 p. 543.] 8. Removal, return, inspection, copying and disposal of documents and things The Court may give directions in relation to the removal from and return to the Court, and the inspection, copying and disposal, of any document or thing that has been produced to the Court in response to a subpoena. [Rule 8 inserted in Gazette 21 Feb 2007 p. 543-4.] 9. Inspection of, and dealing with, documents and things produced otherwise than on attendance (1) This rule applies if an addressee produces a document or thing in accordance with rule 6(4)(b). (2) On the request in writing of a party, the Registrar must inform the party whether production in response to a subpoena has occurred, and, if so, include a description, in general terms, of the documents and things produced. (3) Subject to this rule, no person may inspect a document or thing produced unless the Court has granted leave and the inspection is in accordance with that leave. (4) Unless the Court otherwise orders, the Registrar may permit the parties to inspect at the Registry any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule. (5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the Registrar in writing of the objection and of the grounds of the objection. (6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the Registrar in writing of the objection and of the grounds of the objection. (7) On receiving notice of an objection under this rule, the Registrar - (a) must not permit any, or any further, inspection of the document or thing the subject of the objection; and (b) must refer the objection to the Court for hearing and determination. (8) The Registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party must notify the addressee, the objector and each other party accordingly. (9) The Registrar must not permit any document or thing produced to be removed from the Registry except on application in writing signed by the solicitor for a party. (10) A solicitor who signs an application under subrule (9) and removes a document or thing from the Registry, undertakes to the Court by force of this rule that - (a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and (b) the document or thing will be returned to the Registry in the same condition, order and packaging in which it was removed, as and when directed by the Registrar. (11) The Registrar may, in the Registrar's discretion, grant an application under subrule (9) subject to conditions or refuse to grant the application. [Rule 9 inserted in Gazette 21 Feb 2007 p. 544-5.] 10. Disposal of documents and things produced (1) Unless the Court otherwise orders, the Registrar may, in the Registrar's discretion, return to the addressee any document or thing produced in response to the subpoena. (2) Unless the Court otherwise orders, the Registrar must not return any document or thing under subrule (1) unless the Registrar has given to the issuing party at least 14 days' notice of the intention to do so and that period has expired. (3) If the addressee has informed the Court that a document or a copy of a document produced need not be returned and may be destroyed, the Registrar may, unless the Court otherwise orders, destroy the document or copy instead of returning it. (4) The Registrar must not destroy a document or a copy of a document unless the Registrar has first given to the issuing party and to the addressee at least 14 days' notice of the intention to destroy the document or copy. (5) Unless the Court otherwise orders, this Order is subject to Order 34 rules 15A and 15B. [Rule 10 inserted in Gazette 21 Feb 2007 p. 545.] 11. Costs and expenses of compliance (1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. (2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs. (3) An amount fixed under this rule is separate from and in addition to - (a) any conduct money paid to the addressee; and (b) any witness expenses payable to the addressee. [Rule 11 inserted in Gazette 21 Feb 2007 p. 545.] 12. Failure to comply with subpoena - contempt of court (1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly. (2) Despite rule 5(1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements. (3) Subrules (1) and (2) are without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. [Rule 12 inserted in Gazette 21 Feb 2007 p. 546.] 13. Documents and things in the custody of a court (1) A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Registrar in writing accordingly, identifying the document or thing. (2) If the document or thing is in the custody of the Court, the Registrar must produce the document or thing - (a) in Court or to any person authorised to take evidence in the proceeding, as required by the party; or (b) as the Court directs. (3) If the document or thing is in the custody of another court, the Registrar must, unless the Court has otherwise ordered - (a) request the other court to send the document or thing to the Registrar; and (b) after receiving it, produce the document or thing - (i) in Court or to any person authorised to take evidence in the proceeding as required by the party; or (ii) as the Court directs. [Rule 13 inserted in Gazette 21 Feb 2007 p. 546.] Order 37 - Affidavits 1. Title of affidavits (1) Subject to paragraphs (2) and (3) every affidavit must be entitled in the cause or matter in which it is sworn and bear the number of the cause or matter. (2) Where a cause or matter is entitled in more than one matter it is sufficient to state the first matter followed by the words "and other matters". (3) Where a cause or matter is entitled in a matter or matters and between parties, so much of the title as consists of the matter or matters may be omitted. (4) An affidavit may be sworn for use in proceedings which are yet to be commenced and must be entitled in the intended cause or matter. [Rule 1 amended in Gazette 17 Sep 1993 p. 5054.] 2. Form of affidavit (1) Every affidavit must be expressed in the first person and must state the place of residence and occupation of the deponent, and if he has no occupation his description must be stated. Vague occupations or descriptions must not be used. (2) If the deponent is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state so. (3) Every affidavit must be divided into paragraphs numbered consecutively, and each paragraph must be confined, as far as possible to a distinct portion of the subject. (4) Dates, sums, and other numbers must be expressed in an affidavit in figures and not in words. [(5) deleted] (6) Where an affidavit - (a) consists of more than one page; or (b) has attachments, each page of the affidavit and attachments must be numbered consecutively in the upper right hand corner. (7) If an affidavit has one or more attachments, an index which refers to the affidavit and lists each attachment, its page numbers and a short description of it, must be bound with the affidavit. (8) Subject to Rule 9(1), a document that is to be used in conjunction with an affidavit must be attached to the affidavit and be referred to in the affidavit as being attached. (9) Subject to Rule 9(1), attachments to an affidavit must be bound with it in one or more volumes as may be necessary. (10) Except in a case where the Court allows otherwise, the thickness of a volume of an affidavit and its attachments must not exceed 40 millimetres. [Rule 2 amended in Gazette 16 Nov 1990 p. 5698-9; 23 Jan 2001 p. 562; 21 Feb 2007 p. 550.] 3. Affidavits by 2 or more deponents In every affidavit made by 2 or more deponents the names of the persons making the affidavit must be inserted in the jurat, except that, if the affidavit of all the deponents is taken at one time by the same person it shall be sufficient to state that it was sworn by both (or all) of the "above-named" deponents. [4, 4A. Deleted in Gazette 21 Feb 2007 p. 550.] 5. Irregularity (1) Unless the Court otherwise orders, an affidavit may be filed notwithstanding any irregularity in the form thereof. (2) An affidavit may, with the leave of the Court be used in evidence notwithstanding any irregularity in the form thereof. 6. Contents of affidavit (1) Except as provided by Order 14 Rules 2(2) and 4(2) and Order 16 Rules 1(3) and 2(1a), and by paragraph (2) of this Rule, and subject to any order made under Order 29 Rule 2(d) an affidavit must be confined to such facts as the deponent is able of his own knowledge to prove. (2) An affidavit used for the purposes of - (a) interlocutory proceedings; or (b) an application under the - (i) Coroners Act 1996; (ii) Surveillance Devices Act 1998; or (iii) Witness Protection (Western Australia) Act 1996, may contain statements of information or belief. (2a) An affidavit containing statements of information or belief must set out the sources or grounds of that information or belief. (3) The costs of an affidavit which unnecessarily sets forth matters of hearsay, argumentative matter or copies of or extracts from documents, shall be paid by the party filing the affidavit. [Rule 6 amended in Gazette 5 Jun 1992 p. 2281; 26 Aug 1994 p. 4415; 13 Sep 1996 p. 4568; 28 Oct 1996 p. 5698; 16 Jul 1999 p. 3189.] 7. Scandalous matter The Court may order to be struck out from an affidavit any matter which is scandalous, irrelevant or otherwise oppressive, or may order that the affidavit containing such matter be taken off the file. [8. Deleted in Gazette 21 Feb 2007 p. 550.] 9. Exhibits (1) A bound register, an account book or other book or any document of an unusual size must not be attached to the affidavit or referred to therein as being attached, but must be referred to as an exhibit. (2) An exhibit to an affidavit must be identified by a certificate of the person before whom the affidavit is sworn or taken, and the certificate must have indorsed on it the short title of the cause or matter and its number, if any. [Rule 9 amended in Gazette 16 Nov 1990 p. 5699; 21 Feb 2007 p. 551.] [10-12. Deleted in Gazette 21 Feb 2007 p. 551.] 13. Affidavits to be filed (1) Every affidavit must be filed before it is used unless otherwise directed by the Court. (2) There must be indorsed on every affidavit a note stating the name of the deponent, the dates of swearing and filing and on whose behalf it is filed. 14. Special times for filing Where a special time is limited for filing affidavits, an affidavit filed after that time shall not be used except by leave of the Court. 15. Alterations in accounts Every alteration in an account verified by affidavit to be left at Chambers shall be marked with the initials of the person before whom the affidavit is sworn, and such alterations shall not be made by erasure. [Rule 15 amended in Gazette 21 Feb 2007 p. 551.] 16. This Order additional to Oaths, Affidavits and Statutory Declarations Act 2005 This Order is in addition to the Oaths, Affidavits and Statutory Declarations Act 2005. [Rule 16 inserted in Gazette 21 Feb 2007 p. 551.] Order 38 - Evidence by deposition 1. Power to order depositions to be taken (1) The Court may in any cause or matter, if it appears necessary for the purposes of justice, make an order in Form No. 25 for the examination of any witness or person upon oath before a Judge, or an officer of the Court, or any other person, at any place in the State. (2) An order under paragraph (1) may be made on such terms as the Court thinks fit. (3) The Court may give directions as to the procedure to be followed in and in relation to the examination. [Rule 1 amended in Gazette 8 Feb 1991 p. 582.] [2, 3. Deleted in Gazette 8 Feb 1991 p. 582.] 4. Enforcing attendance of witness (1) In this Rule and in Rules 5 to 17 the Judge, officer of the Court, or person before whom the examination of any person pursuant to an order under Rule 1 takes place, is referred to as the examiner. (2) When an order has been made under Rule 1 - (a) for the examination of any person before the examiner; or (b) for the cross-examination before the examiner of any person who has made an affidavit which is to be used in any cause or matter, the attendance of that person before the examiner and the production by him of any document at the examination may be enforced by subpoena in like manner as his attendance, or the production by him of a document at a trial may be enforced. [Rule 4 amended in Gazette 21 Feb 2007 p. 551.] 5. Refusal of witness to attend or be sworn (1) If any person duly summoned by subpoena to attend before the examiner refuses or fails to attend, or refuses to be sworn for the purpose of the examination, or to answer any lawful question or produce any document therein, a certificate of such refusal or failure signed by the examiner must be filed, and upon the filing of the certificate the party requiring the attendance of the witness may apply to the Court ex parte for any order requiring the witness to attend, be sworn, or answer any question or produce any document, as the case may be. (2) The Court may order any person against whom an order is made under this Rule to pay any costs occasioned by his refusal or failure. (3) Any person wilfully disobeying any order made against him under paragraph (1) is guilty of contempt of court. 6. Time and place for examination (1) On production to him of the order for examination or a duplicate thereof, the examiner must give to the party who obtained the order a notice in writing appointing the time and place at which, subject to any application by the parties, the examination shall be taken. (2) In fixing the time appointed under paragraph (1) the examiner shall have regard to the reasonable convenience of the persons to be examined and all the circumstances of the case, but subject thereto such time shall be as soon as practicable after the making of the order. 7. Documents to be given to examiner The party who obtained the order for examination before an examiner must supply to the examiner copies of all such documents in the cause or matter as are necessary to inform the examiner of the questions at issue between the parties. 8. Practice on examination (1) Subject to any direction contained in the order for examination, the person examined before the examiner may be cross- examined and re-examined and the practice with reference to the examination, cross-examination and re-examination of witnesses at the trial of a cause or matter shall extend and be applicable to the evidence of any person so examined. (2) The examiner may put questions to any person examined before him as to the meaning of any answer made by that person, or as to any matter arising in the course of the examination. (3) The examination shall take place in the presence of the parties, their counsel, solicitors, or agents, or such of them as choose to attend. (4) The examiner may, if necessary, adjourn the examination from time to time or from place to place. 9. Expenses of witnesses Any person required to attend for the purpose of being examined or of producing any document before the examiner shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in Court. 10. Examination of additional witnesses The examiner may, with the consent in writing of all parties, take the examination of any witnesses or persons in addition to those named or provided for in the order, and shall annex such consent to the original depositions. 11. Mode of taking deposition (1) The deposition of any person examined before the examiner must - (a) be taken down by the examiner or a shorthand writer or some other person in the presence of the examiner; or (b) be recorded in the presence of the examiner on tape or by other mechanical means. (2) Subject to paragraph (3) a deposition taken pursuant to paragraph (1)(a) need not set out every question and answer, but must contain as nearly as may be the statement of the person examined. (3) The examiner may direct that the exact words of any question and answer thereto be set out in the deposition. (4) A deposition taken pursuant to paragraph (1)(a) must be read to the person examined and, if any party so requests, the person examined must be asked to sign his deposition. (5) The examiner must authenticate the deposition by his signature. (6) Where the deposition is taken pursuant to paragraph (1)(b) it must be transcribed under the supervision of the examiner who must authenticate the transcript by his signature. (7) The transcript authenticated by the examiner constitutes the deposition of the person examined, and it is not necessary that the deposition be read to or signed by him. (8) The examiner must indorse on the deposition a note signed by him of the time occupied in taking the examination and the fees received by him in respect thereof. (9) The deposition authenticated by the examiner shall be sent by him to the Central Office and shall be filed therein. 12. Objection to questions (1) When any person being examined before an examiner objects to answer any question, or objection is taken to any question put to him, that question, the ground for objection, and the answer (if any) to the question objected to, must be set out in the deposition of the person being examined or in a statement annexed to the deposition. (2) The Court shall decide the validity of the ground for the objection. (3) If the Court decides against the objector it may order him to pay the costs occasioned by the objection. 13. Special report The examiner may make a special report to the Court touching any examination taken before him, and with regard to the absence or conduct of any person thereat, and the Court may direct such proceedings to be taken or make such order, on the report as it thinks fit. 14. Oaths Any officer of the Court or other person directed or authorised to take the examination of any witness or person may administer oaths. [Rule 14 amended in Gazette 8 Feb 1991 p. 582.] 15. Perpetuating testimony (1) Witnesses shall not be examined to perpetuate testimony unless an action has been begun for that purpose. (2) Any person who would under the circumstances alleged by him to exist become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot be brought to trial by him before the happening of such event, may begin an action to perpetuate any testimony which may be material for establishing such right or claim. (3) No action to perpetuate the testimony of witnesses shall be set down for trial. 16. Examiner's fees (1) An examiner is entitled to charge the fees set forth in the following table - Table of examiner's fee | |$ | |(a) Upon giving an appointment to | | |take an examination |21.00 | |...................................| | |(b) for the examination - | | | for the first hour |28.00 | |................................. | | | for every hour after the first |17.00 | |............... | | (2) The party prosecuting the order or his solicitor shall also pay all reasonable travelling and other expenses including charges for the room (other than the examiner's office) where the examination is taken and an allowance of $17 an hour for the time occupied by the examiner in travelling. (3) The fee on appointment may be retained by the examiner whether the examination is taken or not. (4) The other fees and the travelling or other expenses shall be paid as soon as the examination has been concluded. (5) A Judge or a Master may authorise the charging of fees at a higher hourly rate than the hourly rate specified in the foregoing table. (6) If any dispute arises as to the amount of fees or expenses payable under this Rule it shall be referred to a Master for his decision which shall be final. [Rule 16 inserted in Gazette 21 Mar 1980 p. 960-1; amended in Gazette 30 Nov 1984 p. 3951-3.] 17. Payment of examiner's fees (1) An examiner shall not be required to transmit any deposition, to be filed at the Central Office, until all fees and expenses due to him in respect of that deposition have been paid. (2) The Court may, on the application of an examiner, order the payment to him by the party prosecuting the order of the fees and expenses payable to him on account of any examination, but without prejudice to any question on the taxation of costs as to the party by whom the costs of such examination should eventually be borne. [18. Deleted in Gazette 21 Feb 2007 p. 551.] Order 38A - Examination of witnesses outside the State [Heading inserted in Gazette 8 Feb 1991 p. 582; amended in Gazette 22 Feb 2008 p. 637.] 1. Definitions In this Order - (a) the Act means the Evidence Act 1906; and (b) words and expressions have the same definitions as in section 109 of the Act. [Rule 1 inserted in Gazette 8 Feb 1991 p. 582.] 2. Application of this Order This Order applies to applications made under section 110 or 111 of the Act. [Rule 2 inserted in Gazette 21 Feb 2007 p. 551.] 3. Applications under Act s. 110 and 111 in civil proceedings (1) An application under section 110 of the Act in relation to civil proceedings before the Court must be made by summons supported by an affidavit. (2) An application under section 111 of the Act in relation to civil proceedings before an inferior court must be made by originating summons supported by an affidavit. (3) The affidavit in support of an application must - (a) address the matters referred to in section 110(2) of the Act; and (b) exhibit all such documents in the proceedings as are necessary to inform the Court of the questions at issue between the parties. (4) Where the application is for an order for the issue of a letter of request the affidavit must exhibit a draft of the letter (in Form No. 28) and, if the language of the country outside the State is not English, a translation of the letter into the language of the country together with a certificate by the translator stating his name, address and qualifications for making the translation and stating that the translation is correct. [Rule 3 inserted in Gazette 8 Feb 1991 p. 583.] 4. Application under Act s. 110 and 111 in criminal proceedings (1) Criminal proceedings are to be taken as being before the Court for the purposes of section 110(1) of the Act where a person has been committed to take his trial before the Court. (2) An application under section 110 of the Act in relation to criminal proceedings before the Court must be made by motion supported by an affidavit. (3) An application under section 111 of the Act in relation to criminal proceedings before an inferior court must be made by originating summons supported by an affidavit which must exhibit the complaint in the inferior court. (4) Rules 3(3) and 3(4) apply to applications under this Rule. [Rule 4 inserted in Gazette 8 Feb 1991 p. 583.] 5. Orders under Act s. 110 and 111 An order under section 110 or 111 of the Act - (a) may require the filing of an undertaking by any party (in Form No. 29) as to the costs of examining or taking the evidence of the person outside the State; and (b) must be in Form No. 26 or in such form as the Court may approve. [Rule 5 inserted in Gazette 8 Feb 1991 p. 583.] 6. Manner of examination In the absence of specific directions in an order made under section 110 or 111 of the Act as to the procedure to be followed in and in relation to the examination, Order 38 Rules 6, 8, 11, 12, 13 and 14 apply. [Rule 6 inserted in Gazette 8 Feb 1991 p. 583.] 7. Examiner's remuneration In the absence of specific directions in an order made under section 110 or 111 of the Act as to the remuneration of the examiner, Order 38 Rules 16 and 17 apply. [Rule 7 inserted in Gazette 8 Feb 1991 p. 583.] Order 39 - Taking of evidence for foreign and Australian courts [Heading inserted in Gazette 8 Feb 1991 p. 586; amended in Gazette 22 Feb 2008 p. 637.] 1. Definitions In this Order - (a) the Act means the Evidence Act 1906; and (b) words and expressions have the same definitions as in section 115 of the Act. [Rule 1 inserted in Gazette 8 Feb 1991 p. 586.] 2. Applications under Act s. 116 (1) An application under section 116 of the Act may be made by the person nominated for that purpose by the requesting court, or, if no person is so nominated, by the Attorney General. (2) The application must be made ex parte and must be supported by an affidavit that exhibits the request and, where the request is not in English, a translation into English. (3) When an application has been made under section 116 of the Act any application for a further order or direction in relation to the same matter must be made by summons. [Rule 2 inserted in Gazette 8 Feb 1991 p. 586.] 3. Orders under Act s. 117 (1) An order made under section 117 of the Act must be in Form No. 30 or in such form as the Court may approve and - (a) may order any fit and proper person nominated by the applicant, or any officer of the Court, or such other qualified person as to the Court seems fit, to obtain the evidence; (b) may give such directions about the manner of obtaining the evidence as the Court thinks fit, including directions that the evidence be obtained - (i) in the manner specified in the request; (ii) in accordance with the practice of the requesting court; or (iii) in the manner requested by the applicant; (c) may give such directions as the Court thinks fit about the transmission of the evidence obtained. (2) In the absence of any special directions in the order, the examination of a witness must be taken in the manner prescribed by Order 38 Rule 11(1) to (8). [Rule 3 inserted in Gazette 8 Feb 1991 p. 586.] 4. Examiner's remuneration Order 38 Rule 17 applies mutatis mutandis in the case of an examination under this Order and the Court may make an order thereunder for the fees and expenses due to a person who obtains evidence pursuant to an order made under section 117 of the Act. [Rule 4 inserted in Gazette 8 Feb 1991 p. 586; amended in Gazette 26 Aug 1994 p. 4415.] 4A. Examiner's power to administer oaths A person appointed to obtain evidence may administer oaths. [Rule 4A inserted in Gazette 8 Feb 1991 p. 586.] 5. Transmission of depositions (1) Unless the order for examination of a witness otherwise directs, the examiner before whom the examination is taken must send the deposition of the witness to the Principal Registrar. (2) On receiving a deposition taken under this Order the Principal Registrar shall give a certificate in Form No. 31 sealed with the seal of the Court annexing thereto and identifying the request, the order for examination, and the deposition. (3) The Principal Registrar shall send the certificate referred to in paragraph (2) with the documents annexed thereto to the Attorney General for transmission direct to the requesting court: provided that if the request was sent direct to the Principal Registrar by some other person pursuant to the provisions of a Convention, the Principal Registrar shall send the certificate and annexures to that person for transmission to the requesting court. [Rule 5 amended in Gazette 14 Dec 1979 p. 3870; 8 Feb 1991 p. 586-7.] 6. Procedure where witness claims privilege (1) This Rule applies where a person claims to be exempt from giving evidence under section 118(1)(b) of the Act and the claim is not supported or conceded as mentioned in section 118(2) of the Act. (2) The examiner may require the person to give the evidence to which the claim relates and, if the examiner does not do so, the Court may do so on the ex parte application of the applicant who obtained the order under section 117 of the Act. (3) If the evidence is taken - (a) it must be contained in a document separate from the remainder of the deposition of the person; (b) the examiner shall send to the Principal Registrar with the deposition and the document, a statement signed by the examiner setting out the claim and the ground on which it is made; (c) the Principal Registrar shall not send the document to the requesting court but shall send the items mentioned in Rule 5, the statement and a request that it determine the claim; (d) the Principal Registrar shall - (i) if the requesting court dismisses the claim, send it the document; or (ii) if the requesting court upholds the claim, send the document to the person, and notify the person of the requesting court's determination. [Rule 6 inserted in Gazette 8 Feb 1991 p. 587.] Order 39A - Trans-Tasman proceedings [Heading inserted in Gazette 16 Jul 1999 p. 3189.] 1. Definitions (1) In this Order, unless the contrary intention appears - the Act means the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth. (2) Unless the contrary intention appears, an expression used in this Order and in the Act has the same meaning as in the Act. [Rule 1 inserted in Gazette 16 Jul 1999 p. 3189.] 2. Application (1) This Order applies to proceedings to which the Act applies. (2) Subject to this Order, unless the contrary intention appears, these Rules apply to proceedings referred to in this Order. [Rule 2 inserted in Gazette 16 Jul 1999 p. 3190.] 3. Leave to serve subpoena (1) Leave to serve a subpoena in New Zealand must be sought by filing - (a) if the subpoena was issued by the Court, a motion in that proceeding; or (b) if the subpoena was issued by an inferior court, an originating motion to be heard ex parte. (2) The motion must be supported by an affidavit annexing a copy of the subpoena and setting out - (a) the name, designation or occupation, and address of the person named and whether that person is over 18 years of age; (b) the nature and significance of the evidence required from the person named, or of the document or thing required to be produced by the person; (c) details of the steps taken to ascertain whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience, to the person named; (d) the date by which it is intended to serve the subpoena; (e) details of - (i) the calculation of the sum sufficient to meet reasonable expenses in complying with the subpoena; and (ii) how those expenses are to be paid, or tendered, to the person named, in money or in vouchers; (f) where the subpoena requires the person named to give evidence, an estimate of the time that the person will be required to attend to give evidence; and (g) details of any facts or matters known to the deponent which may provide cause for the subpoena to be set aside under section 14(2) or (3) of the Act. (3) Before granting leave under the Act to serve a subpoena, a Judge may require the applicant for leave to undertake to meet the expenses reasonably incurred by the person named, not being a party to the proceeding, in complying with the subpoena, if those expenses exceed the allowances and travelling expenses to be provided to that person at the time of service of the subpoena. (4) No document relating to an application under this Rule is to be searched, inspected or copied without leave of a Judge. [Rule 3 inserted in Gazette 16 Jul 1999 p. 3190-1.] 4. Setting aside subpoena (Act s. 13) (1) An application to the Court under section 13 of the Act must be made in accordance with Form No. 31A. (2) The application must be supported by an affidavit setting out the facts and grounds on which the application is based. (3) The application must - (a) be headed with the heading on the copy order of the Court granting leave to serve the subpoena; and (b) be filed, by lodgment or by fax, at the Central Office. (4) The application must set out the applicant's address for service in Australia or New Zealand, telephone number and, if applicable, fax number. (5) If the application is filed by fax, the Principal Registrar must acknowledge, by fax, the receipt of a clear and legible copy of the application and accompanying affidavit. (6) The Principal Registrar must deliver a copy of the application and accompanying affidavit, by mail, or fax, to the address for service of the party who obtained leave to serve the subpoena. (7) An application made under this Rule is to be determined at a date, time and place and in a manner directed by the Court. (8) An objection under section 14(4) of the Act must be made by filing a notice in accordance with Form No. 31B not later than 7 days after - (a) if the objection is made by the person named in the subpoena, the date on which the application was filed; or (b) otherwise, the date on which the application is served on the party who obtained leave to serve the subpoena. (9) A request under section 14(6) of the Act that is not made in the application must be made by filing a form in accordance with Form No. 31C. [Rule 4 inserted in Gazette 16 Jul 1999 p. 3191-2.] 5. Failure to comply with subpoena (Act s. 16) (1) A certificate under section 16 of the Act, in accordance with Form No. 31D, may be issued on the motion of the court out of which the subpoena was issued or on the application of a party. (2) Application for the issue of a certificate may be made - (a) if the proceeding in which the certificate is brought is then before the court, orally, accompanied by a draft certificate in accordance with Form No. 31D; or (b) by motion. (3) An application made by motion for the issue of a certificate must be supported by - (a) an affidavit of service of the subpoena, the order and the notice referred to in section 10(3) of the Act; and (b) an affidavit stating - (i) particulars of the order granting leave to serve the subpoena; (ii) whether application was made to set aside the subpoena and, if so, particulars of the application and any orders made; and (iii) that the subpoena was not complied with. [Rule 5 inserted in Gazette 16 Jul 1999 p. 3192.] 6. Evidence by video link or telephone (Act s. 25) (1) An application for a direction under section 25 of the Act may be made orally or by summons. (2) The application must be supported by an affidavit stating - (a) the reasons why such a procedure is desirable; (b) the nature of the evidence to be taken; (c) the number of witnesses to be examined; (d) the expected duration of the evidence; (e) whether issues of character are likely to be raised; (f) in the case of submissions, the expected duration of the submissions; (g) the facilities available for such a procedure or that can reasonably be made available; and (h) that the requirements of section 26 or 27 of the Act can be met. (3) In deciding whether to grant the application, the Court may take account of the matters set out in the applicant's affidavit in addition to any other matters considered to be material, including cost and convenience to witnesses and all parties. (4) If the Court determines that it is appropriate to hear evidence or receive submissions by video link or telephone, the Principal Registrar may be directed to arrange and coordinate the appropriate facilities in Australia and New Zealand. (5) Without limiting the generality of subrule (4), the Court may direct that - (a) the Principal Registrar arrange for the evidence to be given, or the submissions to be made, at the High Court of New Zealand or at another place approved by the High Court of New Zealand; or (b) an officer of the High Court of New Zealand, or another person approved by the Court, be requested to be present to assist in the transmission of the evidence or submissions, and, in particular to - (i) introduce witnesses to be called and legal representatives; (ii) assist with the administration of oaths, if necessary; and (iii) assist with the implementation of any directions or requests given or made by the Judge or other person presiding in the proceeding. [Rule 6 inserted in Gazette 16 Jul 1999 p. 3192-3.] 7. Fax copies If a fax of a document is adduced in evidence under Part 6 of the Act, the party adducing that evidence must file in the Central Office a copy of the fax - (a) on paper of durable quality measuring about 295 mm in length and 210 mm in width; and (b) on which the writing is permanent, unless the fax meets those specifications. [Rule 7 inserted in Gazette 16 Jul 1999 p. 3193.] Order 40 - Court experts 1. Definitions In this Order unless the contrary intention appears - Court expert means an independent expert appointed under Rule 2 to inquire into and report upon a question of fact or opinion; expert in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on that question would be admissible in evidence. 2. Appointment of expert (1) In any cause or matter which is to be tried without a jury and which involves a question for an expert witness the Court may at any time - (a) on the application of any party, on terms, appoint an independent expert, or if more than one such question arises, 2 or more such experts to inquire into and report upon any question of fact or opinion not involving questions of law or of construction; (b) direct a Court expert to make a further or supplemental report or inquiry and report; and (c) give such instructions in relation to the inquiry and report of a Court expert as the Court thinks fit. (2) Instructions pursuant to paragraph (1)(c) may make provision concerning any experiment or test necessary to enable the Court expert to make a satisfactory report. 3. Report of Court expert (1) The Court expert must send his report to the Court with such copies thereof as the Court requires and the proper officer must send a copy of the report to each party or his solicitor. (2) Any part of a Court expert's report which is not accepted by all parties shall be treated as information furnished to the Court, and shall be given such weight as the Court thinks fit. 4. Cross-examination Upon the application of any party made within 14 days after receiving a copy of the Court expert's report, the Court shall make an order for the cross-examination of the Court expert by all parties either - (a) before the Court at the trial or at some other time; or (b) before an examiner at such time and place as the Court directs. 5. Remuneration (1) The remuneration of the Court expert shall be fixed by the Court and shall include - (a) a fee for making the report and a fee for making any supplementary report; and (b) a proper sum for each day during which his presence is required either in Court or before an examiner. (2) The parties shall be jointly and severally liable to pay the Court expert's remuneration, without prejudice to the question by whom it shall be paid as part of the costs of the cause or matter. (3) Where any party opposes the appointment of a Court expert, the Court may, as a condition of making the appointment require the party seeking the appointment to give such security for the Court expert's remuneration as the Court thinks fit. 6. Further expert witnesses (1) Where a Court expert has made a report pursuant to this Order on any question, any party who gives to the other interested parties a reasonable time before the trial or hearing, notice of his intention to do so, may call one other expert witness to give evidence on the question reported on by the Court expert. (2) Except as provided by paragraph (1) no other expert witness shall be called by any party without the leave of the Court, and such leave shall not be granted unless the Court considers the circumstances of the case to be exceptional. Order 41 - Motion for judgment 1. Judgment to be on motion Except where by any Act, or by these Rules it is provided that judgment may be obtained in any other manner, the judgment of the Court must be obtained by motion for judgment. 2. Judgment after issues tried (1) Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, the plaintiff may set down a motion for judgment as soon as such issues or questions have been determined. (2) If the plaintiff does not set down such a motion, and give notice thereof to the other parties within 7 days after his right so to do has arisen, then after the expiration of such 7 days any defendant may set down a motion for judgment, and give notice thereof to the other parties. 3. Where some issues only determined (1) Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, and some only of such issues or questions of fact have been tried or determined, any party who considers that the result of such trial or determination renders the trial or determination of the others of them unnecessary, or renders it desirable that the trial or determination thereof should be postponed, may apply to the Court for leave to set down a motion for judgment, without waiting for such trial or determination. (2) The Court may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable as to postponing the trial of the other issues of fact. 4. Motion to be set down within one year A motion for judgment shall not, except by leave of the Court, be set down after the expiration of one year from the time when the party seeking to set down the same first became entitled so to do. 5. Court may draw inferences and determine questions Upon motions for judgment the Court may draw all inferences of fact, not inconsistent with the finding of the jury, if the trial was with a jury, and if satisfied that it has before it all the material necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, if it is of opinion that it has not sufficient material before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it thinks fit. Order 42 - Entry of judgment 1. Mode and form of entry (1) Every judgment shall be entered by the Principal Registrar in the book to be kept for that purpose in the Central Office. (2) If a form of judgment is prescribed in the Second Schedule the judgment must be in that form. (3) The party entering a judgment shall be entitled to have recited therein a statement of the manner and place in and at which the service of the writ or other originating process by which the cause or matter was begun, was effected. [Rule 1 amended in Gazette 14 Dec 1979 p. 3870.] 2. Date from which judgment or order takes effect (1) A judgment or order of the Court takes effect from the day of its date. (2) Such judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day. 3. Orders to perform any act Every judgment or order requiring any person to do any act, other than the payment of money, shall state the time, or the time after service of the judgment or order, within which the act is to be done. 4. Judgment on production of affidavit or document Where under the Act or these Rules, or otherwise, it is provided that any judgment may be entered upon the filing of any affidavit or production of any document, the proper officer shall examine the affidavit or document produced, and if the same be regular and contain all that is by law required, he shall enter judgment accordingly. 5. Judgment on production of order or certificate Where by the Act or these Rules, or otherwise, any judgment may be entered pursuant to any order or certificate or return to any writ, the production of such order or certificate sealed with the seal of the Court, or of such return, shall be a sufficient authority to the proper officer to enter judgment accordingly. 6. Judgment on certificate of Master or Registrar Where reference is made to a Master or a Registrar to ascertain the amount for which final judgment is to be entered, the certificate of the Master or Registrar shall be filed in the Central Office when judgment is entered. [Rule 6 amended in Gazette 14 Dec 1979 p. 3870; 30 Nov 1984 p. 3951.] 7. Judgment by consent when party appears by a solicitor In any cause or matter where the defendant has appeared by a solicitor, no order for entering judgment shall be made by consent unless the consent of the defendant is given by his solicitor or agent. 8. Consent of party in person Where the defendant has not appeared or has appeared in person, no such order shall be made unless the defendant attends before a Judge and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, except in cases where the defendant is a barrister, or solicitor. 9. Satisfaction of judgments (1) A memorandum of satisfaction of a judgment may be entered upon a consent to the entry being filed in the Central Office. (2) The consent to the entry must be signed by the party entitled to the benefit of the judgment and must be attested, and verified by the affidavit of the attesting witness. (3) If the attesting witness is not a barrister or solicitor the entry must not be filed without the leave of a Master, which leave may be indorsed on the affidavit. [Rule 9 amended in Gazette 30 Nov 1984 p. 3951.] Order 43 - Drawing up judgments and orders 1. Drawing up of judgments etc. (1) Subject to these Rules and to any order of the Court all judgments or orders whether given or made in Court or in Chambers or by default, shall be drawn up under the direction of the Registrar or other officer to whom such duty may be assigned. (2) A party having the carriage of the judgment or order shall have the first option to enter or extract it, but any other party affected may do so if such first-mentioned party fails to take steps within 3 days from the making thereof to have the judgment or order approved, or having taken such steps does not in the opinion of the Registrar diligently proceed to have the judgment or order approved and entered or extracted. [Rule 1 amended in Gazette 14 Dec 1979 p. 3870.] 2. When order need not be drawn up (1) An order which neither imposes any special terms nor includes any special directions other than a direction as to costs, but only - (a) extends the period within which a person is required or authorised by these Rules, or by any judgment, order or direction, to do any act; or (b) gives leave to do any of the acts mentioned in paragraph (2), need not be drawn up unless the Court otherwise directs. (2) The acts referred to in paragraph (1)(b) are - (a) the issue of any writ, other than a writ of summons for service out of the jurisdiction, or a writ of attachment; (b) the amendment of a writ of summons or other originating process or pleading; (c) the filing of a document or the taking of a document off the file; (d) any act to be done by an officer of the Court other than a solicitor; (e) the correction of a clerical mistake or error appearing in a judgment or order. (3) When under paragraph (1) it is not necessary to draw up an order - (a) the person or solicitor of the person on whose application the order is made shall forthwith give notice in writing of the order to the person, if any, who, if this Rule had not been made, would have been required to be served with the order; and (b) a note or memorandum of such order signed by a Judge or a Master or Registrar shall be sufficient authority for the extension of time, issue, amendment, filing or other act. [Rule 2 amended in Gazette 30 Nov 1984 p. 3951.] 3. Authentication of judgments and orders (1) Every judgment or order shall be marked to show by whom it was made. (2) An order is sufficiently authenticated if signed by the Registrar and sealed with a seal of the Court. 4. Sealed duplicate to be issued (1) Every judgment and order shall be kept in the Registry of the Court as a record. (2) A duplicate of an order shall, on the day it has been entered, be sealed by the Registrar without fee and delivered to the party extracting the order. (3) When a Rule or Order or the practice of the Court requires the production of an order, it is sufficient to produce the duplicate. (4) A further duplicate may be issued at any time, with the sanction of the Registrar, and on payment of the prescribed fee, on the Registrar being satisfied of the loss of the duplicate, or that there is other sufficient reason for the issue of a further duplicate, and that the person applying is properly entitled to it. [Rule 4 amended in Gazette 1 Aug 1980 p. 2558.] 5. Amendment of order An order shall not be amended except on production of the duplicate or the duplicate last issued, which shall, after the original order has been amended and under the direction of the Registrar, be amended in accordance with the amendment of the original order. The amendment in the duplicate shall be sealed under the direction of the Registrar. 6. Draft and documents to be lodged (1) The party bespeaking a judgment or order shall lodge a draft thereof in the Central Office unless the Registrar dispenses with the draft and permits lodgment of the engrossment in the first instance, and, if so required by the Registrar, the party shall leave with the Registrar his counsel's brief and any other documents which the Registrar may require for the purpose of drawing up, or settling such judgment or order. (2) If the judgment or order is not bespoken and the draft and any documents required by the Registrar lodged within 7 days after the judgment or order is finally pronounced or disposed of by the Court, the Registrar may decline to settle or pass the judgment or order without the leave of the Court. [Rule 6 amended in Gazette 14 Dec 1979 p. 3870.] 7. Appointment to settle draft (1) When the Registrar is of the opinion that any judgment or order should be settled in the presence of the parties, he shall appoint a time and place for settling the same, and notify the party bespeaking the judgment or order thereof. (2) Such party shall not less than 2 clear days before the time so appointed, serve notice of the appointment, together with a copy of the draft judgment or order on every other party on the record. [Rule 7 amended in Gazette 14 Dec 1979 p. 3870.] 8. Attendance on settling the draft (1) The party bespeaking the judgment or order and all parties served with notice under the last preceding Rule shall attend on the settlement of the judgment or order and shall, if required by the Registrar so to do, produce to the Registrar their briefs and such other documents as he may consider necessary to enable him to settle the judgment or order. (2) Before settling and passing the judgment or order the Registrar shall satisfy himself in such manner as he shall think fit that the provisions of Rule 7(2) have been complied with. (3) The Registrar may adjourn any such appointment as he may think fit, and the parties shall attend such adjournment without further notice. [Rule 8 amended in Gazette 14 Dec 1979 p. 3870.] 9. Default of attendance (1) If any party fail to attend the Registrar's appointment for settling the draft of a judgment or order, or fail to produce his counsel's brief or such other document as may be required by the Registrar, the Registrar may proceed to settle and pass the judgment or order in his absence. (2) Where the Registrar proceeds under the last preceding paragraph he may dispense with the production of counsel's brief or with the production of such documents, and may act upon such evidence as he may think fit, or may require the matter to be mentioned to the Court. [Rule 9 amended in Gazette 14 Dec 1979 p. 3870.] 10. Dispensing with appointment Notwithstanding the preceding Rules of this Order, the Registrar shall be at liberty, in any case in which he may think it expedient so to do, to settle and pass the judgment or order without making any appointment for either purpose, and without notice to any party. [Rule 10 amended in Gazette 14 Dec 1979 p. 3870.] 11. Registrar's powers and reference to the Court (1) When settling a draft judgment or order the Registrar shall have power to make variations to the draft in matters of detail or for the purpose of carrying out the substance or intent of the judgment or order. (2) In case of dispute or doubt, the Registrar shall at the request of a party refer the matter to the Court giving the judgment or making the order, and the Court may settle the whole of the terms of the judgment or order or such part thereof as may call for special direction. (3) On the reference the Court will hear argument covering only what judgment or order was given or made, and if there is any reasonable doubt, leave may be given to relist the cause or action for rehearing. On any such reference the Court may vary or amend any minute, record, or fiat in order to give expression to the intent of the judgment or order and also to include any ancillary details which may have been omitted, and may finally settle the draft. (4) Nothing herein contained shall derogate from any power or authority of the Court to reconsider any judgment or order before it has been drawn up, passed and entered. [Rule 11 amended in Gazette 14 Dec 1979 p. 3870.] 12. Party to engross A judgment or order when settled and passed shall be engrossed by the party entering or extracting it. 13. Certificate for special allowance The Registrar shall at the time of any attendance before him for the purpose of settling and passing any judgment or order, if requested by any party so to do on the ground that it is of a special nature or of unusual length or difficulty, certify for the information of the taxing officer whether in his opinion any special allowance ought to be made on taxation of costs in respect thereof. [Rule 13 amended in Gazette 14 Dec 1979 p. 3870.] 14. Entry of judgments and orders (1) A judgment or order, when settled and passed, shall be filed in the Central Office by the party entering or extracting it and an entry of the filing shall be made in books to be kept for that purpose. (2) A judgment or order when filed shall be deemed to be duly entered, and the date of the filing shall be deemed the date of entry. (3) An order which is not required to be formally drawn up before being acted upon need not be entered unless it becomes necessary to serve the order for any purpose. 15. Application to vary A party may, within 7 days after a draft judgment or order has been settled by the Registrar, apply to the Court to add to or alter it for the purpose of making it correspond with the judgment or order as pronounced. [Rule 15 amended in Gazette 14 Dec 1979 p. 3870.] 16. Consent orders (1) The parties to proceedings or their solicitors may file a written consent to the making of an order in those proceedings, other than - (a) an order extending a standard time provided for under Order 29; (b) an order that amends, cancels, or is inconsistent with, a case management direction made under Order 29A; or (c) an order that amends, cancels or is inconsistent with an interlocutory order made by a Case Management Registrar in a case to which Order 29A applies. (2) Upon the written consent being filed, the Registrar may settle, sign and seal the order without any other application being made in any case in which in his opinion the Court would make such an order upon consent of the parties or may bring the matter before the Court which may, if it thinks fit and without any other application being made, direct the Registrar to settle, sign, and seal the order in accordance with the terms of consent. (3) The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Court. [Rule 16 inserted in Gazette 3 Oct 1975 p. 3769; amended in Gazette 26 Mar 1993 p. 1845; 28 Oct 1996 p. 5699.] [Order 44 deleted in Gazette 21 Feb 2007 p. 551.] Order 44A - Foreign Judgments Act 1991 (Commonwealth) rules [Heading inserted in Gazette 22 Feb 2008 p. 637.] 1. Definitions In this Order unless the contrary intention appears - (a) the Act means the Foreign Judgments Act 1991 of the Commonwealth; and (b) words used in this Order have, in relation to proceedings taken under the Act, the same meaning in this Order as they have in the Act. [Rule 1 inserted in Gazette 26 Aug 1994 p. 4414.] 2. Application This Order applies to the registration and enforcement of judgments to which Part 2 of the Act applies. [Rule 2 inserted in Gazette 26 Jan 1993 p. 824.] 3. Application for registration (1) An application under section 6 of the Act, to have a judgment to which Part 2 of the Act applies registered in the Supreme Court may be made on motion ex parte to the Court. (2) The motion paper shall be entitled "In the Matter of the Foreign Judgments Act 1991 of the Commonwealth and regulations thereunder made relating to (country) and in the matter of a judgment of the (describing court) obtained in (describing the cause or matter) and dated the day of 20 ". (3) Where the judgment is in respect of different matters, and some, but not all of the provisions of the judgment are such that if those provisions had been contained in separate judgments, those judgments could properly have been registered, the motion paper shall state the provisions in respect of which it is sought to register the judgment. [Rule 3 inserted in Gazette 26 Jan 1993 p. 824.] 4. Evidence in support of application (1) An application for registration shall be supported by an affidavit of the facts - (a) exhibiting a certified copy of the judgment issued by the original court and authenticated by its seal and where the judgment is not in the English language a translation of the judgment certified by a notary public or authenticated by affidavit; (b) stating to the best of the information and belief of the deponent - (i) that the applicant is entitled to enforce the judgment; (ii) as the case may require, either that at the date of the application the judgment has not been complied with, or if the judgment has been complied with in part, the amount in respect of which it remains unsatisfied; (iii) that at the date of the application the judgment is capable of enforcement in the country of the original court; and (iv) that if the judgment were registered, the registration would not be, or be liable to be, set aside under section 7 of the Act; and (c) specifying the amount of the interest, if any, which under the law of the country of the original court has become due under the judgment up to the time of registration, and shall be accompanied by such other evidence with respect to the enforceability of the judgment in the country of the original court, and of the law of that country under which any interest has become due under the judgment, as may be required having regard to the provisions of the regulations extending the Act to the country of the original court. (2) Where a sum payable under the judgment is expressed in a currency other than the currency of the Commonwealth of Australia, the affidavit shall also state the amount which that sum represents in the currency of the Commonwealth of Australia calculated at the rate of exchange prevailing at the date of the judgment. (3) The affidavit shall also state the full name, title, trade or business and the usual or last known place of abode or of business of the judgment creditor and the judgment debtor respectively, so far as known to the deponent. [Rule 4 inserted in Gazette 26 Jan 1993 p. 825.] 5. Security for costs The Court may, in respect to an application for registration, order the judgment creditor to find security for the costs of the application and of any proceedings which may thereafter be brought to set aside the registration. [Rule 5 inserted in Gazette 26 Jan 1993 p. 825.] 6. Order for registration (1) An order for registration of a judgment shall be drawn up by, or on behalf of, the judgment creditor. (2) The order need not be served on the judgment debtor. (3) The order shall state the period after service of the notice prescribed by Rule 8 within which an application may be made to set aside the registration. (4) The Court may, on an application made at any time while it remains competent for any party to apply to have the registration set aside, grant an extension of the period (either as originally fixed or as subsequently extended) during which an application to have the judgment set aside may be made. [Rule 6 inserted in Gazette 26 Jan 1993 p. 825.] 7. Register to be kept There shall be kept in the Central Office of the Supreme Court a register of the judgments ordered to be registered under the Act. [Rule 7 inserted in Gazette 26 Jan 1993 p. 825.] 8. Notice of registration (1) Notice in writing of the registration of a judgment shall be served on the judgment debtor in the following manner - (a) if within the jurisdiction, by personal service as in the case of a writ of summons, unless some other mode of service is ordered by the Court; (b) if out of the jurisdiction, in accordance with Order 10 and the Service and Execution of Process Act 1992 of the Commonwealth. (2) The notice of registration shall state - (a) full particulars of the judgment registered and the order for registration; (b) the name and address of the judgment creditor or his solicitor or agent on whom, and at which, any summons issued by the judgment debtor may be served; (c) the right of the judgment debtor to apply on the grounds provided in the Act to have the registration set aside; (d) in accordance with the term of the order giving leave to register, the period of time from the date of service of the notice within which an application to set aside the registration, may be made; and (e) that no step for the enforcement of the judgment shall be taken until after the expiration of that period. [Rule 8 inserted in Gazette 26 Jan 1993 p. 826; amended in Gazette 1 Mar 1994 p. 787.] 9. Indorsement of service (1) Within 3 days from the day of service or within such extended period as may, in special circumstances, be allowed by order of the Court, the notice or a copy or duplicate of the notice shall be indorsed by the person serving it with the date of the month and the day of the week on which service was effected, and, if the notice is not so indorsed, the judgment creditor shall not be at liberty to issue execution on the judgment without the leave of the Court. (2) Every affidavit of service of a notice referred to in subrule (1) shall state the date on which the indorsement was made. [Rule 9 inserted in Gazette 26 Jan 1993 p. 826.] 10. Application to set aside registration (1) An application to set aside the registration of a judgment shall be made by summons supported by affidavit. (2) A summons shall be served not less than 7 clear days before the return day. (3) On any such application the Court may direct that an issue between the judgment creditor and the judgment debtor shall be stated and tried and may give such directions in relation to the trial of such issue as may be necessary. [Rule 10 inserted in Gazette 26 Jan 1993 p. 826.] 11. Enforcement (1) No step shall be taken to enforce a registered judgment until after the expiration of the period which, in accordance with the provisions of Rule 6(3), is specified in the order giving leave to register as the period within which an application may be made to set aside the registration, or, if an order is made extending the period so specified, until after the expiration of the extended period. (2) If an application is made to set aside the registration of a judgment, enforcement of the judgment shall be stayed until the application has been disposed of. (3) The party desirous of enforcing a registered judgment shall produce to the proper officer an affidavit of the service of the notice of registration and of any order made by the Court in relation to the judgment registered. [Rule 11 inserted in Gazette 26 Jan 1993 p. 827.] 12. Determination of certain questions If, whether under the Act or under these rules, any question arises whether a judgment can be enforced in the country of the original court, or whether and if so what interest is payable under the judgment under the law of that country, that question shall be determined in accordance with the provisions, if any, in that behalf, as are contained in the regulations extending the Act to that country. [Rule 12 inserted in Gazette 26 Jan 1993 p. 827.] 13. Certified copy of judgment obtained in this State (1) An application under section 15 of the Act for a certified copy of a judgment obtained in the Supreme Court shall be made ex parte to the Principal Registrar on an affidavit made by the judgment creditor or his solicitor. (2) An affidavit for the purposes of this Rule shall - (a) give particulars of the proceedings in which the judgment was obtained; (b) contain a statement of the grounds on which the judgment was based; (c) state whether the defendant did or did not object to the jurisdiction, and, if so, the grounds of such objection; (d) show that the judgment is not subject to any stay of enforcement and that no notice of appeal against it has been entered, and whether the time for appealing has expired; and (e) state the rate at which the judgment carries interest. (3) Where an application for a certified copy of a judgment is duly made under this Rule, there shall be issued a copy of the judgment sealed with the seal of the Supreme Court and certified by the Principal Registrar as follows - " I certify that the above copy judgment is a true copy of a judgment obtained in the Supreme Court of Western Australia and this copy is issued in accordance with section 15 of the Foreign Judgments Act 1991 of the Commonwealth. (Signed) Principal Registrar of the Supreme Court of Western Australia. ". together with a certificate as to such one or more as may be asked for of the following matters, also under the seal of the Supreme Court and certified by the Principal Registrar - (a) particulars of the proceedings in which the judgment was obtained having annexed to it a copy of the writ of summons or originating summons, by which the proceedings were instituted; (b) the manner in which the writ or summons was served or that the defendant appeared thereto; (c) the objections made to the jurisdiction, if any; (d) the pleadings, if any, in the proceedings; (e) the causes of action upon which the judgment was based; (f) the rate at which the judgment carried interest; (g) such other particulars as it may be necessary to give to the foreign tribunal in which it is sought to obtain execution of the judgment. [Rule 13 inserted in Gazette 26 Jan 1993 p. 827-8.] Order 45 - Accounts and inquiries 1. Summary order for accounts (1) Where the statement of claim claims an account or involves the taking of an account the plaintiff may, at any time after the defendant has entered an appearance, or after the time limited for appearing, apply for an order under this Rule. (2) An application under this Rule must be made by summons and must, unless the Court otherwise directs, be supported by affidavit or other evidence. (3) On the hearing of the application, the Court may, unless satisfied by the defendant by affidavit or otherwise that there is some preliminary question to be tried, order that an account be taken and may also order that any amount certified on taking the account to be due to either party be paid to him within a time specified in the order. 2. Accounts etc. at any stage The Court may at any stage of the proceedings in a cause or matter, direct any necessary inquiries or accounts to be taken or made. 3. Directions to be numbered Where by any judgment or order, whether made in court or in chambers, any accounts are directed to be taken or inquiries to be made, each such direction shall be numbered so that, as far as may be, each distinct account and inquiry may be designated by a number. 4. Directions as to mode of taking account The Court may, either by the judgment or order directing an account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that in taking the account, the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised. 5. Account to be verified (1) Where an account has been ordered to be taken, the accounting party must make out his account and, unless the Court otherwise directs, verify it by affidavit to which the account must be exhibited. (2) The items on each side of the account must be numbered consecutively. (3) Unless the order for the taking of the account otherwise directs, the accounting party must lodge the account at the Central Office, and must notify the other parties forthwith that he has so lodged the account, and of the filing of the affidavit verifying the account, and any supporting affidavit. 6. Mode of vouching accounts Upon the taking of any account the Court may direct that the vouchers shall be produced at the office of the solicitor of the accounting party, or at any other convenient place, and that only such items as may be contested or surcharged, shall be brought before the Judge in chambers. 7. Surcharge or error Any party seeking to charge an accounting party with an amount beyond that which he has by his account admitted to have received, or who alleges that any item in his account is erroneous in respect of amount or in any other respect must give him notice thereof, stating so far as he is able, the amount sought to be charged with brief particula