Supreme Court Act 1935

Rules of the Supreme Court 1971

 

Rules of the Supreme Court 1971

Contents

Order 1 — Application, elimination of delay and forms

1.Short title2

2.Commencement and saving2

3.Certain proceedings excluded2

3A.Inherent powers not affected4

4.Terms used4

4A.Delays, elimination of7

4B.Case flow management, use and objects of7

4C.Parties to notify settlement8

6.Forms8

7.Court fees9

Order 2 — Effect of non‑compliance

1.Non‑compliance with rules10

2.Application to set aside for irregularity10

Order 3 — Time

1.Term used: month12

2.Reckoning periods of time12

3.Period between 24 Dec and 15 Jan excluded when computing time12

4.Time expiring on day Central Office closed, effect of13

5.Extending and abridging time13

6.Extension of time where security ordered13

7.Notice of intention to proceed after year’s delay13

Order 4A  Case management

Division 1 — Preliminary matters

1.Terms used15

2.Term used: case management direction15

3.Term used: enforcement order19

4.Inconsistencies with other rules20

Division 2 — Provisions applicable to all cases

5.Court may review a case at any time20

6.Timetables21

7.Who has to attend conferences22

8.Conferences of parties with mediator22

9.Referees23

Division 3 — Cases on the CMC List

10.Application of this Division24

11.Cases on CMC List25

12.Headings to documents25

13.CMC List judge may order case to be on or taken off CMC List25

14.Asking for case to be put on CMC List26

15.Interlocutory hearings27

Division 4 — Cases not on the CMC List

16.Application of this Division27

17.Requesting interlocutory orders and case management directions27

18.Status conference28

19.Case evaluation conference29

20.Listing conference31

Division 5 — Inactive Cases List

21.Term used: Inactive Cases List32

22.Case manager may issue summons to show cause32

23.Springing order that case be put on Inactive Cases List32

24.Cases inactive for 12 months deemed inactive33

25.Parties to be notified of case being on Inactive Cases List and to advise clients33

26.Consequences of case being on Inactive Cases List33

27.Removing cases from Inactive Cases List34

28.Certain inactive cases to be taken to have been dismissed34

Order 4 — Mode of commencing proceedings: applications in pending proceedings

1.Commencing civil proceedings36

2.Applications in pending proceedings36

3.Individual may act in person or by solicitor; body corporate must act by solicitor36

Order 5 — Writs of summons

1.Form of writ37

2.Writ for service outside WA, form of37

3.Place of trial to be shown37

4.Place of issue37

5.Preparation of writ37

6.Sealing of writ37

7.Copy to be left with officer37

8.Copy to be filed38

9.Writ for service outside Australia, leave to issue needed38

10.All writs to be in name of Chief Justice or Senior Puisne Judge38

11.Time for appearance to be stated in writ38

Order 6 — Indorsement of claim: other indorsements

1.Nature of claim etc. to be indorsed on writ40

2.Action for libel40

3.Statement of claim may be indorsed on writ in some actions40

4.Claim for liquidated demand, indorsements required for, costs etc.40

5.Representative character41

6.Claim for account41

7.Writ etc. to state contact details41

Order 7 — Duration and renewal of writ: concurrent writs

1.Duration and renewal of writ42

2.Proof of extension of validity of writ42

3.Concurrent writs43

4.Unserved writs may be struck out43

Order 8 — Disclosure by solicitors: change of solicitors

1.Solicitor to declare, if required to, whether writ issued by him45

2.Change of solicitor45

3.Change of solicitor acting as agent46

4.Appointment of solicitor by self-represented person46

5.Intention to act in person, notice of46

5A.Notices to state party’s contact details46

6.Removal of solicitor from record47

7.Withdrawal of solicitor who has ceased to act for party47

8.Effect of order made under this Order48

9.Service details of party whose solicitor is removed48

11.Solicitor not to act for adverse parties49

12.Practitioner or clerk not to be security49

Order 9A — Interested non‑parties

1.Term used: interested non‑party50

2.Parties to advise identity of interested non‑parties50

3.Duties of interested non‑party50

Order 9 — Service of originating process: general provisions

1.Service of writ, general provisions52

2.Service of writ as to contract on agent of principal who is outside WA52

3.Serving writ in accordance with contract, effect of53

4.Writ for possession of land where no person in possession, service of54

5.Service of other originating process55

Order 10 — Service out of the jurisdiction

1A.When leave to serve is required; application of r. 9 to 1156

1.When service out of jurisdiction is permissible56

2.Service out of jurisdiction of writ etc. as to contract59

4.Application for leave under r. 1 or 259

5.Time for appearance59

7.Other documents, service of outside Australia60

8.Saving of existing practice60

9.Service abroad through foreign or diplomatic officials60

10.Service abroad, general and saving provisions62

11.Undertaking to pay expenses of service63

Order 11 — Service of foreign process

1.Terms used64

2A.Application of this Order64

2.Service pursuant to letter of request for service64

3.Service under Convention65

4.Service to be through sheriff66

5.Consequential orders66

Order 11A  Service under the Hague Convention

Division 1 — Preliminary

1.Terms used67

2.Provisions of this Order to prevail69

Division 2 — Service abroad of local judicial documents

3.Application of this Division69

4.Application for request for service abroad70

5.How application to be dealt with72

6.Procedure on receipt of certificate of service72

7.Payment of costs74

8.Evidence of service74

Division 3 — Default judgment following service abroad of initiating process

9.Application of this Division75

10.Restriction on power to enter default judgment if certificate of service filed75

11.Restriction on power to enter default judgment if certificate of service not filed76

12.Setting aside judgment in default of appearance77

Division 4 — Local service of foreign judicial documents

13.Application of this Division78

14.Certain documents to be referred back to Attorney‑General’s Department of Commonwealth79

15.Service79

16.Affidavit as to service80

Order 12 — Appearance

1.Who may enter appearance82

2.How to enter an appearance82

3.Procedure on receipt of requisite documents82

4.Appearance to be served on plaintiff83

5.Late appearance83

6.Conditional appearance83

7.Setting aside writ etc. before appearance84

8.Person not named may defend action for possession of land84

9.Person appearing under r. 8 to be named as defendant84

10.Limiting defence in action for possession of land85

Order 13 — Default of appearance to writ

1.Prerequisites for judgment in default of appearance etc.86

2.Claim for liquidated demand86

3.Claim for liquidated demand against several defendants, effect of final judgment on87

4.Claim in detinue87

5.Claim for possession of land87

6.Writs for 2 or more claims in r. 2 to 5 and 788

7.Claims for damages88

8.Writs for other claims89

9.Reference to Court in case of doubt89

10.Setting aside judgment in default90

Order 14 — Summary judgment

1.When plaintiff may apply for summary judgment91

2.Application under r. 1, how to make91

3.Judgment may be given for plaintiff92

4.Defendant may be given leave to defend92

6.Summary judgment on counterclaim93

7.Court’s powers if leave to defend given etc.93

8.Costs94

9.Right to proceed with residue of action or counterclaim94

10.Judgment for delivery of specific chattel95

11.Relief from judgment for recovery of land95

12.Summary judgment against absent party may be set aside or varied95

Order 16 — Summary judgment on application of defendant

1.Application by defendant for summary judgment96

2.Plaintiff may show cause96

3.Court’s powers if action to go to trial97

4.Summary judgment against absent party may be set aside or varied97

Order 17 — Interpleader

1.When interpleader relief may be granted98

2.How to apply for interpleader relief98

3.Time for application by defendant99

4.Stay of proceedings99

5.Court’s powers on application99

6.Summary determination99

7.Where question of law only99

8.Claimant failing to appear etc.100

9.Power to order sale of goods100

10.Discovery etc. and trial100

11.One order where several causes pending100

15.Orders as to costs etc.101

Order 18 — Causes of action, counterclaims and parties

1.Joinder of causes of action102

2.Counterclaim against plaintiff102

3.Counterclaim against additional parties103

4.Joinder of parties104

5.Court may order separate trials etc.105

6.Misjoinder and nonjoinder of parties105

7.Change of parties by reason of death etc.106

8.Order made under r. 6 or 7, consequences of107

9.Failure to proceed after death of party108

10.Action for possession of land, joining non-party who is in possession109

11.Relator actions110

12.Representative proceedings110

13.Representation of interested persons who cannot be ascertained etc.111

14.Representation of beneficiaries by trustees etc.112

15.Representation of deceased person interested in proceedings113

16.Declaratory judgment113

17.Conduct of proceedings114

Order 19 — Third party and similar proceedings

1.Third party notice115

2.Application for leave to issue third party notice116

3.Issue and service of, and entry of appearance to, third party notice116

4.Third party directions117

5.Default of third party etc.118

6.Setting aside third party proceedings119

7.Judgment between defendant and third party119

8.Claims and issues between defendant and another party119

9.Claims by third and subsequent parties120

10.Offer of contribution121

11.Counterclaim by defendant121

12.Costs122

Order 20 — Pleadings

1.Statement of claim, service of123

2.Statement of claim, content of123

3.Pleadings etc. to be filed before service123

4.Defence, service of124

5.Reply and defence to counterclaim, service of124

6.Pleadings subsequent to reply etc., leave required for125

7.Pleadings, formal requirements of125

8.Facts, not evidence, to be pleaded126

9.Matters which must be specifically pleaded127

10.Matter may be pleaded whenever arising128

11.Party’s pleadings to be consistent128

12.Points of law may be pleaded128

13.Particulars of claims etc.128

13A.Particulars in defamation actions130

14.Admissions, traverses etc.131

15.Denial by joinder of issue131

16.Defence of tender not available without payment into court132

17.Defence of set‑off132

18.Counterclaim and defence to counterclaim132

19.Striking out pleadings etc.133

20.Close of pleadings134

21.Trial without pleadings134

22.Preparation of issues135

23.Collision between vessels, content etc. of Preliminary Act135

24.Failure to lodge Preliminary Act137

Order 21 — Amendment

1.Amending writ without leave138

2.Amending memorandum of appearance138

3.Amending pleadings without leave138

5.Amending writ or pleading with leave139

6.Amending other originating process140

7.Amending other documents140

8.Failure to amend after order141

9.How amendments to be made141

10.Clerical errors etc., correcting (slip rule)142

11.Service of amended documents142

Order 22 — Default of pleadings

1.Default in service of statement of claim143

2.Default of defence to claim for liquidated demand143

3.Default of defence to claim for unliquidated damages143

4.Default of defence to claim in detinue144

5.Default of defence to claim for possession of land144

6.Default of defence to 2 or more claims in r. 2 to 5145

7.Default of defence to other claims145

8.Default of defence to counterclaim146

9.Reference to Court in case of doubt146

10.Setting aside judgment in default146

Order 23 — Discontinuance

1.Withdrawing appearance147

2.Plaintiff may discontinue; defence etc. may be withdrawn147

3.Costs148

4.Subsequent action stayed pending payment148

5.Withdrawal of summons148

Order 24 — Payment into court — offers to consent to judgment

9.In certain cases no payment out without order149

11.Intestate’s estate, Court may direct some payments without administration149

12.Regulations (Sch. 3)150

Order 24A — Offer of compromise

1.Parties entitled to make offer151

2.Application of this Order to counterclaims and third party notices151

3A.How to make offer151

3.Time etc. for making, accepting etc. offer151

4.Time for payment of sum offered153

5.Withdrawing acceptance of offer153

6.Offer without prejudice154

7.Disclosure of offer to Court154

8.Failure to comply with accepted offer154

9.Multiple defendants155

10.Costs155

Order 25 — Security for costs

1.Factors that are not grounds for ordering security for costs158

2.Grounds for ordering security for costs158

3.Court has discretion159

4.Term used: plaintiff159

5.Manner of giving security159

6.Action may be stayed159

7.Payment out159

8.Saving160

Order 26 — Discovery and inspection

1A.Terms used161

1B.Documents not wholly discoverable161

1.Discovery without order162

2.Continuing obligation to give discovery163

3.Determination of issue relevant to right to discovery164

4.List of documents and verifying affidavit, form, content and making of164

5.Defendant entitled to copy of co‑defendant’s list etc.165

6.Order for information as to particular documents166

7.Orders as to discovery166

8.Inspection of documents in list167

8A.Procedure on discovery168

9.Order for inspection of documents169

10.Order for production to Court170

11.Order for production etc. only if necessary170

11A.Costs of preparing document to facilitate inspection171

12.Claim of privilege171

13.Inspection of copies of business books171

14.Public interest immunity not affected172

15.Non‑compliance with requirements for discovery etc.172

16A.Certificate by practitioner173

16.Revocation and variation of orders173

Order 26A — Discovery etc. from non‑parties and potential parties

1.Terms used174

2.Public interest immunity not affected174

3.Discovery etc. to identify a potential party174

4.Discovery from potential party175

5.Discovery from non‑party176

6.Order 26 applies to discovery ordered under this Order177

7.Costs177

8.Certificate by practitioner for non‑party or potential party177

Order 27 — Interrogatories

1.Notice of and answers to interrogatories179

2.Answers, time for and manner of giving179

3.Interrogatories given to 2 or more parties etc., who has to answer179

4.Content of answers180

5.Grounds for objecting to answer180

6.Answers, who can make180

7.Failing to answer or to answer sufficiently181

8.Non‑compliance with order under r. 7181

9.Use of answers in evidence182

10.Revoking and varying orders182

Order 28 — Medical examination: inspection of physical objects

1.Medical examination of a party183

2.Inspection of physical objects184

Order 29  Directions

1.Summons for directions185

2.Directions hearings185

Order 30 — Admissions

1.Admission of other party’s case187

2.Notice to admit facts187

3.Judgment on admissions187

4.Admissions as to and production of documents188

5.Notice to admit authenticity of documents; notice requiring production of documents at trial189

Order 31 — Special cases and stated cases

1.Questions of law, stating of in special case190

2.Preliminary question of law, orders as to190

3.Preparing special case190

4.Special case affecting person under disability, leave needed to enter for argument191

5.Entering special case for argument191

6.Agreement as to payment of money and costs191

7.Reference of case to Court of Appeal (Act s. 58(1)(d))192

8.Cases stated to Court (not Court of Appeal) by other courts etc.192

Order 32 — Place and mode of trial

1.Trial in circuit town194

2.Application for trial by jury194

3.Usual mode of trial, other modes194

4.Time of trial of questions or issues194

5.Issues may be tried differently194

6.Trial with jury to be by single judge195

7.Disposal of action195

8.Trial by jury, precepts for etc.195

Order 33 — Entry for trial

1.When cause etc. can be entered for trial196

2.If plaintiff does not enter cause etc. for trial, other party may act196

3.Notice of entry196

4.Form of entry for trial197

5.Time to elapse before hearing197

6.Trial dates for Perth197

7.Trial dates for circuit courts197

8.Certificate of readiness for trial required197

8A.Affidavit of service of notice of entry for trial198

8B.Application for adjournment of trial etc. after entry198

9.Countermanding entry199

10.After entry no interlocutory applications without leave199

11.No withdrawal from list after date fixed except by leave200

12.Fixing dates of trial200

13.Re‑listing adjourned trial201

14.Papers for judge202

Order 34 — Proceedings at trial

1.Absence of both parties at trial203

2.Absence of one party at trial203

3.Setting aside judgment given in absence of party203

4.Adjournment of trial203

5.Conduct of trial203

5A.Time etc. limits at trial204

6.Evidence in mitigation of damages in libel or slander205

7.Inspection by judge or jury205

8.Judgment at or after trial206

9.Record of proceedings206

10.Where time occupied by trial excessive206

11.Entry of findings of fact on trial206

12.Certificate for entry of judgment206

13.Exhibits207

14.Return of exhibits207

15A.Return of document etc. to non-party who produced it under subpoena208

16.Death of party before judgment is given209

17.Impounded documents209

18.Assessment of damages by master209

19.Damages to time of assessment210

20.Writ of inquiry not to be used210

Order 35 — Assessors and referees

1.Trial with assessors211

2.Trial before referee211

3.Evidence before referee211

4.Authority of referee211

5.Referee cannot order imprisonment211

6.Referee may submit question to Court212

7.Notice of referee’s report212

8.Adoption etc. of referee’s report in adjourned case212

9.Adoption etc. of referee’s report where case not adjourned212

10.Costs213

11.Application of this Order to other references213

Order 36 — Evidence: general

1.Facts to be proved usually by oral evidence in open court214

2.Evidence by affidavit214

3.Evidence of children etc. (Evidence Act 1906 s. 106S)214

4.Reception of plans etc. in evidence215

5.Orders under r. 2 or 4 may be revoked or varied215

6.Trials of issues etc., evidence in215

7.Depositions as evidence215

8.Court documents admissible in evidence216

9.Evidence at trial may be used in subsequent proceedings216

10.Evidence in another cause216

11.Production of documents217

20.Interest for purposes of Act s. 32217

Order 36A — Expert evidence

1.Terms used218

2.Medical evidence in actions for personal injuries218

3.Other expert evidence220

4.Exceptions to r. 2(5) and 3(2)221

5.Court may limit expert evidence221

6.Disclosure of part of expert evidence221

7.Derogation of privilege221

8.Mode of application221

9.Revoking and varying directions222

Order 36B — Subpoenas

1.Terms used223

2.Issuing subpoenas224

3.Form of subpoena225

3A.Altering date for attendance or production226

4.Setting aside subpoena or other relief226

5.Service226

6.Compliance with subpoena227

7.Production otherwise than upon attendance228

8.Removal, return, inspection, copying and disposal of documents and things228

9.Inspection of, and dealing with, documents and things produced otherwise than on attendance229

10.Disposal of documents and things produced230

11.Costs and expenses of compliance231

12.Failure to comply with subpoena is contempt of court231

13.Documents and things in custody of court232

Order 37 — Affidavits

1.Title of affidavits233

2.Form of affidavits233

3.Affidavits by 2 or more deponents234

5.Irregularity234

6.Contents of affidavits235

7.Scandalous matter236

9.Exhibits236

13.Affidavits to be filed236

14.Affidavits not to be filed out of time without leave237

15.Alterations in accounts237

16.This Order additional to Oaths, Affidavits and Statutory Declarations Act 2005237

Order 38 — Evidence by deposition

1.Power to order depositions to be taken238

4.Enforcing attendance of witness238

5.Refusal of witness to attend or be sworn239

6.Time and place of examination, notice of239

7.Documents to be given to examiner239

8.Practice on examination240

9.Expenses of witnesses240

10.Additional witnesses may be examined with parties’ consent240

11.How depositions to be taken241

12.Objection to questions242

13.Examiner may give Court special report242

14.Oaths242

15.Perpetuating testimony242

16.Examiner’s fees243

17.Payment of examiner’s fees244

Order 38A — Examination of witnesses outside the State

1.Terms used245

2.Order applies to Act s. 110 and 111245

3.Applications under Act s. 110 and 111 in civil proceedings245

4.Application under Act s. 110 and 111 in criminal proceedings246

5.Orders under Act s. 110 and 111246

6.Manner of examination247

7.Examiner’s remuneration247

Order 39 — Taking of evidence for foreign and Australian courts

1.Terms used248

2.Applications under Act s. 116248

3.Orders under Act s. 117248

4.Examiner’s remuneration249

4A.Examiner’s power to administer oaths249

5.Transmission of depositions249

6.Procedure where witness claims privilege250

Order 39A  Trans‑Tasman Proceedings Act 2010 (Commonwealth) rules

Division 1 — General

1.Term used: Act252

2.Application of this Order252

Division 2 — Subpoenas to be served in New Zealand

3.Leave to serve subpoena (Act s. 31)252

4.Setting aside subpoena (Act s. 35 and 36)254

5.Failure to comply with subpoena (Act s. 38)255

Division 3 — Remote appearances from New Zealand

6A.Appearances by audio link or audiovisual link (Act s. 48)256

6.Evidence by audio link or audiovisual link (Act s. 50)257

Division 4 — Registration and enforcement of NZ judgments

7.Setting aside registration of NZ judgment (Act s. 72)258

8.Stay of enforcement of registered NZ judgment (Act s. 76)258

Order 40 — Court experts

1.Terms used260

2.Court expert, appointment of etc.260

3.Report of Court expert261

4.Cross‑examination of Court expert261

5.Remuneration of Court expert261

6.Further expert witnesses262

Order 41 — Motion for judgment

1.Judgment to be on motion263

2.When motion for judgment may be set down after trial etc.263

3.Motion for judgment before trial etc. of all issues263

4.Motion for judgment to be set down within one year264

5.Court may draw inferences and determine questions264

Order 42 — Entry of judgment

1.Mode and form of entry265

2.Date from which judgment or order takes effect265

3.Orders to do an act, time for obeying to be specified265

4.Entering judgment on filing of affidavit etc.265

5.Entering judgment pursuant to order etc.266

6.Entering judgment on certificate of master or registrar266

7.Entering judgment by consent when party appears by solicitor266

8.Entering judgment by consent where defendant has not appeared or is self‑represented266

9.Satisfaction of judgments267

Order 43 — Drawing up judgments and orders

1.Drawing up etc. judgments etc.268

2.When order need not be drawn up268

3.Authentication of judgments and orders269

4.Judgments and orders to be court record; issue and use of duplicates269

5.Amending orders270

6.Draft judgment or order etc. to be lodged270

7.Appointment to settle draft271

8.Attendance on settling draft271

9.Default of attendance on settling draft271

10.Dispensing with appointment272

11.Registrar’s and Court’s powers to settle judgments etc.272

12.Party to engross settled judgment or order273

13.Certificate for special allowance on taxation of costs273

14.Entry of judgments and orders273

15.Application to vary273

16.Consent orders274

Order 44A — Foreign Judgments Act 1991 (Commonwealth) rules

1.Terms used275

2.Application of this Order275

3.Application for registration (Act s. 6)275

4.Evidence in support of application276

5.Security for costs277

6.Order for registration277

7.Register of judgments registered278

8.Notice of registration278

9.Indorsement of service279

10.Application to set aside registration279

11.Enforcing registered judgment279

12.Determination of certain questions280

13.Certified copy of judgment obtained in this State280

Order 45 — Accounts and inquiries

1.Summary order for account to be taken283

2.Direction for accounts etc. may be made at any stage283

3.Directions to be numbered283

4.Directions as to mode of taking account283

5.Account to be verified284

6.Vouchers and contested etc. items, directions as to284

7.Surcharge or error, notice of284

8.Allowances that can be made without direction285

9.Expediting proceedings285

10.Distributing fund before all persons entitled are ascertained285

11.Master etc. may be ordered to take accounts or make inquiries286

12.Right to adjournment from registrar etc.286

Order 46  Civil Judgments Enforcement Act 2004 rules

1.Terms used287

2.Applications that may be dealt with by registrar287

3.Enforcing judgment in action between partners288

Order 51 — Receivers

1.Application for receiver and injunction289

3.Security to be given by receiver289

4.Remuneration of receiver290

5.Accounts by receiver290

6.Payment of balances by receiver290

7.Default by receiver291

8.Books of accounts to be deposited with Court291

9.Compensation to party restrained292

10.Compensation by applicant to party restrained292

11.Application to Civil Judgments Enforcement Act 2004292

Order 52 — Interlocutory injunctions, interim preservation of property

1.Application for injunction293

2.Detention etc. of property; securing funds in dispute293

3.Power to order taking of samples etc.294

4.Disposal of perishable property etc.294

5.Order for early trial on application for receiver, injunction etc.295

6.Recovering personal property subject to lien295

7.Directions296

8.Allowance of income or transfer of property during case296

9.Injunction to include undertaking as to compensation to party restrained296

10.Compensation to party restrained by undertaking297

Order 52A  Freezing orders

1.Terms used298

2.Freezing order298

3.Ancillary order298

4.Respondent need not be party to proceeding299

5.Order against judgment debtor, prospective judgment debtor or third party299

6.Court’s other jurisdiction not affected301

7.Service outside Australia of application for order301

8.Costs301

Order 52B  Search orders

1.Terms used302

2.Search order302

3.Requirements for making of search order302

4.Court’s other jurisdiction not affected303

5.Terms of search order303

6.Independent solicitors, appointment of etc.304

7.Costs304

Order 53 — Sales of land by the Court

1.Term used: land306

2.Power to order sale of land306

3.Manner of sale306

4.Directions306

5.Certificate of sale307

6.Mortgage, exchange or partition307

7.Reference of matters to counsel308

8.Objection to counsel’s opinion308

Order 54 — Originating and other motions

1.Application of this Order309

2.Which applications to be made by motion309

3.Notice of motion309

4.Time of notice of motion309

5.Form of notice of motion309

6.Issue of notice of motion310

7.Service of notice of motion with writ etc.310

8.Adjournment etc.310

Order 55 — Committal and attachment

1.Term used: contemnor311

2.Committal for contempt of court311

3.Contempt in face of Court311

4.Other cases of contempt312

5.Form and service of notice or summons312

6.Arresting contemnors313

7.Punishing contemnors313

8.Execution of committal order may be suspended313

9.Discharge from committal314

10.Saving for other powers314

11.Court may make peremptory order in first instance314

12.Application of r. 6 to 9 to attachment etc.315

Order 56  Judicial review

Division 1 — General

1.Terms used316

2.Making an application317

3.Serving an application318

4.Options of person served with application318

5.Procedure on application318

6.Discovery and interrogatories319

7.Costs320

10.Issue and filing of writs320

Division 2 — Certiorari

14.Forms321

Division 3 — Mandamus

15.Applicant to show interest etc.321

16.Form of writ321

17.Time for return of writ322

18.Service322

19.Service on corporate body, or justices322

20.Return, content etc. of323

21.Pleading to return323

22.No motion for judgment needed in some cases323

23.Peremptory writ323

24.Costs324

25.Proceedings in nature of interpleader324

26.Proceedings not to abate due to death etc.324

28.Mandamus by order325

29.No action against party obeying writ or order325

Division 4 — Prohibition and procedendo

30.Court may direct service of statement of claim instead of issuing prohibition325

31.Proceedings on judgment326

32.Writ of procedendo326

33.Prohibition by order326

Division 5 — Quo warranto

34A.Application for information of quo warranto326

34.Rules of court applicable327

35.Signature and service of information327

Order 56A — Review orders under the Magistrates Court Act 2004

1.Terms used328

2.Application for review order, making328

3.Application for review order, procedure on329

4.Review order, service of330

5.Review order, hearing of330

6.Final order, making and service of331

Order 57 — Habeas corpus

1.Application for writ332

2.Power of Court when ex parte application made332

3.Copies of affidavits to be supplied333

4.Court may order release of person restrained333

5.Signed copy of writ to be filed333

6.Order for issue of writ, contents of334

7.Service of writ and notice334

8.Return to writ of habeas corpus334

9.Procedure on hearing335

10.Form of writ335

Order 58 — Proceedings by originating summons

Division 1 — Introductory

1.Which proceedings to be commenced by originating summons336

Division 2 — Administration and trusts

2.Executors etc. seeking certain relief without administration336

3.Executors etc. applying for administration337

4.Service of summons issued under r. 2 or 3337

5.Decision without judgment for administration338

6.Orders which may be made on application for administration etc. of trusts338

7.Interference with discretion of trustee etc.339

8.Conduct of sale of trust property339

Division 4 — Declaration on originating summons

10.Construction of written instruments339

11.Construction or validity of legislation340

12.Court may refuse to determine summons in some cases340

13.Effect of contracts for sale etc. of land340

Division 5 — General

14.Form and issue of originating summons340

15.Order 7 applies to originating summons341

16.Time for appearance341

17.Entry of appearance341

18.When appearance not required342

18A.Time for service where appearance not required342

19.Fixing time for hearing summons343

20.Notice of hearing of summons344

21.Evidence at hearing to be by affidavit344

22.Hearings in absence of party344

23.Order made ex parte may be set aside345

24.Costs thrown away by non‑attendance of party345

25.Hearings not completed on hearing date345

26.Other matters that may be included in one summons345

27.Directions as to hearings, evidence etc.346

28.Adjourning hearings346

29.Court’s powers and procedure at hearings347

30.Transfer of Land Act 1893 s. 129C applications, directions as to347

Order 59 — Applications and proceedings in chambers

1.Business to be dealt with in chambers349

2.Hearings may be in open court or chambers350

3.Applications in chambers, form of351

4.Summons, form and issue of351

5.Summons, service of352

6.Experts, assistance of352

7.Application of O. 58 r. 22 to 28352

8.Stay of proceedings, ordering353

9.Parties to confer before making application353

10.Orders, form of353

Order 60  Masters’ jurisdiction

1.Masters’ general jurisdiction354

2.Master may refer matter to judge or Court of Appeal355

Order 60A — Jurisdiction of registrars and appeals from registrars’ decisions

1.Registrars’ powers356

2.Case management registrars’ powers357

2A.Applications within registrar’s jurisdiction to be made to registrar358

3.Registrar may refer matter to higher judicial officer358

4.Appeals from registrars’ decisions359

5.Appeal procedure360

6.Powers of judge or master on appeal360

7.This Order not to apply to Court of Appeal Registrar361

Order 61 — Proceedings under judgments and orders

Division 1 — Application of order

1.Application to proceedings under orders362

Division 2 — Summons to proceed

2.Summons to proceed, requirement for and proceedings on362

3.Notice of judgment, Court may order service of in some cases363

4.Settling deed if parties differ, procedure for364

5.When service of notice of judgment may be dispensed with365

6.Judgment for accounts etc., power to bind persons in some cases365

7.Procedure where some parties not served etc.365

8.Course of proceedings in chambers366

Division 3 — Attendances

9.Classifying interests of parties366

10.Judge may require distinct solicitor to represent parties367

11.Attendance of parties not directed to attend367

12.Order stating parties directed to attend367

Division 4 — Claims of creditors and other claimants

13.Advertisements for creditors etc., power to direct367

14.Advertisements, preparation etc. of368

15.Advertisements, contents of368

15A.Claims to state claimant’s contact details368

16.Failure to claim within specified time368

17.Examination and verification of claims369

18.Adjudicating on claims370

19.Adjourning adjudications; fixing time for filing evidence etc.371

20.Service of notice of judgment on certain claimants371

21.Notice of claims allowed or disallowed372

Division 5 — Interest

23.Interest on debts372

24.Interest on legacies373

Division 6 — Masters’ and registrars’ certificates

25.Master’s certificate373

26.Settling and filing master’s certificate374

27.Judge may determine questions in proceedings before master374

28.Appeal against master’s certificate375

28A.Judge may discharge or vary registrar’s certificate375

Division 7 — Further consideration

29.Summons to have matter in chambers further considered376

Order 62 — Trustees Act 1962 rules

1.Making applications under Act377

2.Title of proceedings377

3.Payment into court under Act s. 99377

4.Notice of payment in etc.378

5.Applications in respect of money etc. paid into court378

Order 62A — Mortgage actions

1.Application of this Order and terms used379

2.Claim for possession etc., no appearance by defendant380

3.Claim for possession etc., affidavit in support of381

4.Action by writ, judgment in default in382

5.Foreclosure in redemption action383

Order 65  Appeals to the General Division

Division 1 — Preliminary matters

1.Terms used384

2.Application of this Order385

Division 2 — General matters

3.Hearings by telephone385

4.Judge’s general jurisdiction386

5.Non‑attendance by party, consequences of387

6.Decisions made in absence of party387

7.Decisions made on the papers387

Division 3 — Procedure on appeals

8.Nature of appeals388

9.Time for appealing388

10.Appeal, how to commence389

11.Primary court to be notified and to supply records390

12.Respondent’s options390

13.Interim order, applying for391

14.Urgent appeal order, nature of391

15.Consenting to orders392

16.Appeal books not needed unless ordered392

Division 4 — Concluding an appeal

17.Discontinuing an appeal392

18.Settling an appeal393

19.Return of exhibits393

Order 65C — Electoral Act 1907 section 62N rules

1.Term used: Electoral Commissioner396

2.Application of this Order396

3.Application for review396

4.Title of proceedings396

5.Hearing the review397

6.Date of hearing397

7.Review book398

8.Applicant limited to grounds in originating motion398

9.Right to be heard in opposition398

10.Additional affidavits, determination of issue etc.399

11.Order as to result of review399

12.Application of rules of court399

Order 66 — Costs

Division 1 — General

1.General rules as to costs400

2.Costs where several causes of action, defendants etc.401

3.Costs of amendment without leave or where facts or documents not admitted402

4.Action as to property, ordering costs out of property402

5.Lawyer may be ordered to pay costs etc.403

6.Solicitor guardian ad litem, costs of404

7.Set‑off may be allowed despite solicitor’s lien404

8.State solicitors, costs of405

8A.Lawyer acting pro bono, costs in case of405

9.Restriction of discretion to order costs in some cases405

10.Stage at which costs may be dealt with406

11.Scale of costs407

13.Costs where scale does not apply408

14.Lump sum award for costs, interim award as to408

17.Cases that Magistrates Court could have decided, costs in408

18.Matters not provided for in scale409

19.Disbursements etc. allowable on taxation410

20.Basis for calculating costs410

21.No substantial trial, costs in case of411

23.Certain fees in scales may be increased if inadequate411

24.Judgment for person under disability, solicitor’s costs in case of412

25.Own costs orders413

Division 2 — Taxation of costs

32.Bills of costs to be taxed415

33.Indorsements on bill of costs415

34.When notice of taxation need not be given416

35.Notice of taxation416

36.Vouchers as to disbursements to be lodged416

37.Solicitor delaying taxation416

38.Appointment to tax costs to be peremptory416

39.Taxing officer may direct bills of costs to be brought in417

40.Default by party in taxing costs417

41.If costs payable out of property, notice to clients may be directed417

42.Bills of costs, content of417

43.Taxing officer’s decisions on fact are final418

44.Taxing officer’s powers418

45.Taxing officer may refer taxation question to Court419

46.Where proceedings adjourned into court419

47.Interrogatories and discovery, costs of419

48.Costs of motion etc. follow event420

49.Motion etc. stood over to trial and no order made as to costs, costs in case of420

50.Costs reserved420

51.When Court may fix costs420

52.Taxing officer may refer question to judge if costs to be apportioned etc.421

Division 3 — Review of taxation

53.Party dissatisfied with taxation may object and apply for review421

54.Review of taxation by taxing officer422

55.Review of taxation by judge422

56.No further evidence on review except with leave423

Division 4 — Miscellaneous

57.Taxing officer’s certificate enforceable as judgment423

58.Stay on review423

59.Party liable to be paid and to pay costs, taxing officer’s powers in case of424

60.Taking of accounts, taxing officer’s duties and powers on424

61.Interim certificate in matters of account424

Order 67 — Central Office, officers

1.Superintendence of Central Office425

2.Ministerial acts of registrar425

3.Taking of oaths and affidavits425

4.Seals425

5.Abuse of process etc., procedure in case of425

6.Sealed documents, evidentiary status of426

7.Petition, award etc. to be filed before judgment etc. passed426

8.Indexes to documents etc. in Central Office426

9.Date of filing to be marked etc.427

10.Custody and searches of records in Central Office427

11.Inspection of documents in Central Office427

12.Deposit of documents428

13.Restriction on removal of documents428

14.Deposit for officer’s expenses429

15.Admissions, awards etc. to be filed429

16.New forms429

17.Accounts etc. to be taken by registrar, rules applying to429

18.Reference in judgment etc. to registrar, effect of430

19.Some documents may be filed by fax430

20.Some documents may be filed using Court’s website431

Order 68 — Sittings, vacations and office hours

1.Civil sittings434

2.Criminal sittings434

3.Court vacations434

4.Days included in sitting and vacation435

5.When Court’s offices are open435

6.Office hours435

7.Vacation Judge435

Order 69 — Paper, printing, notice, and copies

1.Printing of documents, rules as to436

2.Documents prepared by parties, requirements as to436

3.Cost of printing, shorthand or recording, orders as to438

4.Copies of documents for other parties439

5.Requirements as to copies439

6.Copies of affidavits on certain ex parte applications439

Order 70 — Disability

1.Terms used441

2.Persons under disability suing or defending441

3.Next friend or guardian ad litem, appointment of442

4.Probate actions, special provisions for444

5.No appearance by person under disability, procedure on446

6.Time for application by person under disability to discharge or vary order under O. 18 r. 7448

7.Removal of next friend or guardian448

8.No implied admission from pleading448

9.Discovery and interrogatories449

10.Settlement etc. of action by person under disability449

10A.Settlement etc. of appeal by person under disability449

11.Settlement etc. before action commenced449

12.Control of money recovered for person under disability450

13.Personal service on person under disability451

Order 71 — Partners, business names

1.Partners may sue or be sued in name of firm453

2.Disclosure of partners’ names453

3.Service on firm454

4.Person served under r. 3 to be notified of character in which he is served454

5.Appearance of partners455

6.No appearance except by partners455

7.Appearance under protest of person served as partner455

9.Rules 1 to 7 apply also to some actions between firm and its members etc.456

11.Rules 2 to 9 apply to proceedings begun by originating summons456

12.Application to person using business name456

13.Application to charge partner’s interest in partnership etc.457

Order 71A  Contact details of parties and others

1.Addresses of places, requirements for458

2.Geographical addresses458

3.Service details, meaning of459

4.Documents without contact details to be rejected461

5.Changes of information to be notified461

6.Fictitious details in documents, court powers as to462

Order 72 — Service of documents

1.When personal service required463

2.Personal service on individual463

3.Personal service on body corporate463

3A.Personal service on State463

4.Substituted service464

5.Ordinary service, how effected464

5A.Ordinary service, when effected466

6.Service of documents by Court467

6A.Serving documents by email467

7.Affidavits of service, content of468

8.No service required in certain cases468

Order 73 — Probate proceedings

1.Application of this Order and terms used469

2.Commencing probate action469

4.Intervention by person who is not defendant470

5.Citation against non-party with adverse interest470

6.Person cited failing to appear470

7.Entry of appearance470

8.Citation to executor etc. to bring in probate etc.471

9.Citations, issue of471

10.Citations, service of471

11.Affidavit of scripts472

12.Scripts in pencil, affidavits as to; inspecting affidavits of scripts473

13.Default of appearance473

14.Counterclaim474

15.Defendant may require only proof in solemn form474

16.Pleadings474

17.Default of pleadings475

18.Discontinuance475

19.Compromise475

20.Orders etc. to bring in will etc.476

21.Applications, making476

22.Administrator or receiver appointed pending litigation477

Order 75 — Family Provision Act 1972 rules 

1.Terms used478

2.Applications under Act, making of478

3.Copy of summons to be placed on probate file478

5.Court may make inquiries etc.479

6.Parties may be added480

7.Representative defendant480

8.Probate etc. to be lodged at Registry if judgment for plaintiff480

9.Appearance to originating summons for extension of time not required480

Order 75A  Legal Profession Act 2008 rules

1.Terms used481

2.Application to be admitted (Act s. 25)481

3.Attendance at hearing of application to be admitted481

4.Oath or affirmation482

Order 76  Public Notaries Act 1979 rules

1.Terms used483

1A.Districts prescribed for Act483

2.Application for certificate of fitness (Act s. 8)485

3.Notice of intention to apply to be appointed Public Notary (Act s. 9)486

4.Application to be appointed Public Notary487

5.Certificates of appointment, form of487

6.Applications to suspend or strike off Public Notaries488

7.Fees payable on application for appointment488

Order 80  Escheat (Procedure) Act 1940 rules

1.Term used: said Act489

2.Applications for Order of Escheat, making489

3.Notice of applications, form of489

4.Evidence; judge may direct inquiry489

5.Claimants to file affidavit verifying claim and may be heard490

6.Judge may order issue to be tried490

7.Order of Escheat, form of490

8.Costs490

Order 80A  Royal Commission (Custody of Records) Act 1992 rules

1.Terms used491

2.Applications for leave to have access (Act s. 14)491

3.Order granting leave, form of492

Order 81B  Service and Execution of Process Act 1992 (Commonwealth) rules

1.Terms used; how applications to be made493

2.Enforcing judgments under Act s. 105, procedure for493

3.Claiming interest under Act s. 108, procedure for494

4.Appeals under Act494

Order 81C  Road traffic legislation rules

1.Terms used495

2.Applications under RT (AD) Act s. 24, 27 or 35, how to be made495

3.Registrar’s functions when application is made496

4.Applicant to serve application etc.496

5.Hearing of application, appearance at497

6.Hearing of application, procedure on497

7.CEO to be notified of decision498

Order 81D — Arbitration law rules

1.Terms used499

2.Application of this Order499

3.Court documents, headings on499

4.Commencing proceedings499

5.Subpoena to appear etc. before arbitrator500

6.Taking evidence for arbitrator500

7.Costs of arbitration, assessing500

Order 81E — Cross‑vesting

1.Terms used501

2.Application of this Order501

3.Commencing proceedings that rely on cross-vesting laws501

4.Special federal matters502

6.Directions for conduct of proceedings502

7.Transfer of proceedings503

8.Applications to be dealt with by judge503

9.Transfer on Attorney General’s application (Act s. 5 or 6)504

10.Transfer under Act s. 8, Court’s powers on504

11.Procedure if laws etc. of other place to apply under Act s. 11(1)504

Order 81F  Proceeds of Crime Act 2002 (Commonwealth) rules

1.Terms used506

2.Applications under Act, how to be made506

3.Service on DPP (Cwlth) in Perth508

4.DPP to file grounds for contesting application508

5.Summons for directions508

6.Court may give directions at any time509

7.Representative respondent509

8.Evidence on applications510

9.Court may order separate hearing510

Order 81FA  Criminal Property Confiscation Act 2000 rules

Part 1 — Preliminary

1.Terms used511

Part 2 — Proceedings under the Confiscation Act 2000

2.Declarations under Act s. 30, applications for512

3.Other declarations or orders, applications for512

4.Affidavit in support required for some applications514

5.Objections to confiscation of property, making of514

6.DPP to be served514

7.Directions514

8.Conference not required515

9.Representative defendant515

Part 3 — Registration of freezing notices and interstate orders

10.Freezing notices, registration of etc.516

11.Interstate orders, registration of etc.516

Order 81G — Criminal and Found Property Disposal Act 2006 rules

1.Terms used518

2.General matters518

3.Claims, how to be made519

4.Defendant may file memorandum of appearance519

5.Defendant may file affidavit in response520

6.Applications in course of proceedings on claim520

7.Hearing claims520

8.Costs521

Order 81H  Surveillance Devices Act 1998 rules

1.Term used: Act522

2.Warrants, applications for522

3.Report to judge (Act s. 21 or 30)522

4.Order allowing publication etc. (Act s. 31), application for522

5.Identification of persons in documents523

6.Practice Directions523

Order 82 — Sheriff’s rules

7.Service of process by sheriff524

9.Fees etc. payable to sheriff, disputes as to524

11.Deposit on account of sheriff’s fees525

14.Travel distance by sheriff for service525

16.Non‑payment of sheriff’s fees, consequences of525

Order 83 — Consolidation of pending causes and matters

1.Causes may be consolidated527

2.Consolidation with action removed from another court527

3.Directions527

Order 84 — General rules

1.Repealed Orders not revived528

2.Cases not provided for528

3.Publication of written reasons for judgment528

4.Bankruptcy jurisdiction, duty of Registrar in Bankruptcy as to seals, records etc.529

5.Public Trustee Act 1941 s. 27, proceedings under529

6.Sale proceeds paid into court, claimants to must file affidavit530

7.Account by solicitor to client, applying for and order as to530

8.Interest and apportionment, certification of530

9.Admiralty Act 1988 (Cwlth) rules, registrar etc. may exercise powers etc. under531

Order 85  Federal Courts (State Jurisdiction) Act 1999 rules

1.Terms used532

2.Title of proceedings532

3.No proceedings on ineffective judgment before application to have it registered532

4.Ineffective judgment, application for registration of533

5.Ineffective judgments, registration of534

6.Act s. 10, application for order under534

7.Act s. 11, application for order under535

8.Act s. 11, effect of order under535

Schedule 2 — Forms

1.Writ of summons (general form) (O. 5 r. 1)537

2.Writ of summons indorsed with statement of claim (O. 5 r. 1)538

3.Writ of summons to be served outside WA539

5.Indorsements of representative capacity of parties (O. 6 r. 5)540

5A.Request for service abroad of judicial documents and certificate (O. 11A r. 4, 6 & 16)541

5B.Summary of the document to be served (O. 11A r. 4)544

6.Memorandum of appearance (O. 12 r. 2(2))545

7.Notice limiting defence (O. 12 r. 10)546

10.Forms for Order 18547

11.Third party notice (general form) (O. 19 r. 1)549

12.Third party notice where question or issue to be determined (O. 19 r. 1)550

17.List of documents (O. 26 r. 4(1) & 8)551

18.Affidavit verifying list of documents (O. 26 r. 4(3))554

19.Request to set down cause for further consideration (O. 33 r. 13(3))555

20.Notice that cause has been set down for further consideration (O. 33 r. 13(3))555

22.Subpoena (O. 36B r. 3(1))556

22A.Subpoena notice and declaration (O. 36B r. 10(3))561

23.Writ of subpoena for service in New Zealand (O. 36B r. 3(1))563

25.Order for examination of witness before trial (O. 38 r. 1)564

26.Evidence Act 1906 s. 110 or 111, order under (O. 38A r. 5)565

28.Letter of request (O. 38A r. 3(4))567

29.Undertaking as to costs of letter of request (O. 38A r. 5)568

30.Evidence Act 1906 s. 117, order under (O. 39 r. 3)569

31.Certificate (O. 39 r. 5(2))570

31A.Application for subpoena to be set aside (O. 39A r. 4(1))570

31B.Request for application to be determined with hearing (O. 39A r. 4(8))571

31C.Request to appear remotely in hearing to set aside subpoena (O. 39A r. 4(9))571

31D.Certificate of non‑compliance with subpoena (O. 39A r. 5)572

32.Default judgment in action for liquidated demand (O. 13 r. 2; O. 22 r. 2; O. 42 r. 1)572

34.Default judgment where demand unliquidated (O. 13 r. 7; O. 22 r. 3; O. 42 r. 1)573

35.Default judgment in action relating to detention of goods (O. 13 r. 4; O. 22 r. 4; O. 42 r. 1)574

36.Default judgment in action for possession of land (O. 13 r. 5; O. 22 r. 5; O. 42 r. 1)575

37.Final judgment after assessment of damages etc. (O. 42 r. 1)575

38.Judgment under Order 14 (O. 14 r. 3)576

39.Judgment after trial by judge without a jury (O. 42 r. 1)576

40.Judgment after trial with a jury (O. 42 r. 1)577

41.Judgment after trial before master or special referee (O. 42 r. 1)577

42.Judgment after decision of preliminary issue (O. 32 r. 7; O. 42 r. 1)578

43.Judgment for defendant’s costs on discontinuance (O. 23 r. 2)578

44.Judgment by consent (O. 42 r. 1(2))579

60.Summons for appointment of receiver (O. 51 r. 1)579

61.Order directing summons for appointment of receiver and granting injunction meanwhile (O. 51 r. 1)580

62.Receiver order (interim) (O. 51 r. 1)581

63.Receiver’s recognisance (O. 51 r. 3(3))582

64.Notice of originating motion (O. 54 r. 5)583

65.Notice of motion (O. 54 r. 5)584

66.Order of committal (O. 55 r. 7(4))584

67A.Application for judicial review (O. 56 r. 2)585

67.Certiorari (O. 56 r. 14)586

69.Mandamus (O. 56 r. 16)586

70.Procedendo (O. 56 r. 32)587

71.Prohibition (O. 56 r. 33)587

73.Habeas corpus (O. 57 r. 10)588

74.Originating summons, appearance required (O. 58 r. 14)589

75.Originating summons, appearance not required (O. 58 r. 14)590

76.Notice of appointment to hear originating summons (O. 58 r. 19)590

77.Summons (general form) (O. 59 r. 4(1))591

78.Order (general form) (O. 59 r. 10)591

80.Notice of judgment or order (O. 61 r. 3(3))592

81.Advertisement for creditors (O. 61 r. 15(2))592

82.Advertisement for claimants other than creditors (O. 61 r. 15(2))593

83.Appeal notice (O. 65 r. 10)594

84.Service certificate (O. 65 r. 10(7))595

85.Notice of respondent’s intention (O. 65 r. 12)596

86.Application in an appeal (O. 65 r. 13)597

87.Consent notice (O. 65 r. 15 & 18)597

88.Request for hearing (O. 65 r. 7)598

89.Discontinuance notice (O. 65 r. 17)598

93A.Public Notaries Act 1979 s. 8, certificate (O. 76 r. 2)599

93B.Notice of intention to apply for appointment as public notary (O. 76 r. 3)600

93C.Certificate of appointment as public notary Western Australia (O. 76 r. 5(1))600

93D.Certificate that name of public notary remains on roll (O. 76 r. 5(2))601

99.Escheat (Procedure) Act 1940, notice of application under (O. 80 r. 3)602

100.Escheat (Procedure) Act 1940, order of escheat (O. 80 r. 7)602

101.Application for extraordinary licence (O. 81C r. 2(1))603

102.Application by holder to vary extraordinary licence (O. 81C r. 2(2))604

103.Application by CEO to vary, cancel extraordinary licence (O. 81C r. 2(3))605

104.Application for removal of disqualification (O. 81C r. 2(4))607

108.Criminal and Found Property Disposal Act 2006, claim under (O. 81G r. 3)608

Schedule 3 — Payment into and out of court

Notes

Compilation table613

 

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 common form probate business.

Administration Act 1903, s. 144.
Supreme Court Act 1935, s. 167.
Public Trustee Act 1941, s. 65.

[3.deleted]

 

4.Proceedings in the Court of Disputed Returns to which the Electoral Rules 1908 2 apply.

Electoral Act 1907, s. 173.

(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 subrules (2) and (3), nothing in those subrules 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; 28 Jun 2011 p. 2552‑3.]

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.Terms used

(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;

Act means the Supreme Court Act 1935;

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; and

(b)high commissioner; and

(c)minister; and

(d)head of mission; and

(e)commissioner; and

(f)chargé d’affaires; and

(g)counsellor, secretary or attaché at an embassy, high commissioner’s office, legation or other post; and

(h)consul‑general; and

(i)consul; and

(j)vice‑consul; and

(k)trade commissioner; and

(l)consular agent;

case has the meaning given in Order 4A rule 1;

case management registrar means a registrar appointed as such by the Chief Justice;

case manager has the meaning given in Order 4A rule 1;

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;

form has a meaning affected by rule 6 and, if followed by a number, means the form of that number in Schedule 2;

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;

prescribed fee means the fee prescribed by the Supreme Court (Fees) Regulations 2002;

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;

to file means to file in the Central Office, and file, filed and filing have corresponding meanings;

trial includes hearing;

working day means a day other than a Saturday, a Sunday, or a public holiday throughout the State;

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; 28 Jul 2010 p. 3440 and 3482; 28 Jun 2011 p. 2551.]

4A.Delays, elimination of

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.Case flow management, use and objects of

(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; and

(b)disposing efficiently of the business of the Court; and

(c)maximising the efficient use of available judicial and administrative resources; and

(d)facilitating the timely disposal of business; and

(e)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and

(f)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.

(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 subrule (1).

[Rule 4B inserted in Gazette 26 Mar 1993 p. 1840‑1; amended in Gazette 28 Jul 2010 p. 3440; 28 Jun 2011 p. 2552.]

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 Principal Registrar in writing forthwith.

[Rule 4C inserted in Gazette 26 Mar 1993 p. 1841; amended in Gazette 12 Jun 2012 p. 2445.]

[5. Del eted in Gazette 28 Jun 2011 p. 2551.]

6.Forms

(1)The forms in Schedule 2 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 Schedule 2 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; 28 Jun 2011 p. 2553.]

7.Court fees

These rules are to be read with but do not affect the operation of the Supreme Court (Fees) Regulations 2002.

[Rule 7 inserted in Gazette 28 Jul 2010 p. 3482.]

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 subrule (3) the Court may, on the ground that there has been such a failure as is mentioned in subrule (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.

[Rule 1 amended in Gazette 28 Jun 2011 p. 2552.]

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.Term used: mont h

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 Dec and 15 Jan excluded when computing time

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 expiring on day Central Office closed, effect of

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.Extending and abridging 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 subrule (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; 28 Jun 2011 p. 2552.]

6.Extension of time 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 4A  Case management

[Heading inserted in Gazette 28 Jul 2010 p. 3441.]

Division 1 — Preliminary matters

[Heading inserted in Gazette 28 Jul 2010 p. 3441.]

1.Terms used

In this Order, unless the contrary intention appears —

approved mediator means a registrar or other person, approved as a mediator by the Chief Justice;

case means any action, cause, or matter, that is an original proceeding between a plaintiff and a defendant;

case management direction has the meaning given in rule 2;

case manager means —

(a)for a case on the CMC List, the CMC List judge to whom the case is assigned;

(b)for any other case, a master or a case management registrar;

CMC List means the Commercial and Managed Cases List referred to in Division 3;

CMC List case means a case that is on the CMC List;

CMC List judge means a judge who the Chief Justice has appointed to deal with CMC List cases;

enforcement order has the meaning given in rule 3.

[Rule 1 inserted in Gazette 28 Jul 2010 p. 3441.]

2.Term used: case management direction

(1)A case management direction is any procedural direction that in the Court’s opinion it is just to make in a case to facilitate the attainment of the objects referred to in Order 1 rule 4B(1).

(2)Without limiting subrule (1), a case management direction may do one or more of the following —

(a)give directions to assist the convenience of the parties or witnesses;

(b)direct the parties to comply with a timetable for procedural steps that are needed in the case;

(c)dispense with all or any or any further pleadings;

(d)direct specified pleadings to be filed;

(e)dispense with any interlocutory step;

(f)direct that an interlocutory application not be heard;

(g)as to any interlocutory matter —

(i)direct the parties or their practitioners to file and exchange memoranda before the hearing of it in order to clarify the matters in issue before the hearing;

(ii)direct that it be dealt with by telephone, video link or other similar means of communication;

(iii)give directions as to the use of audio‑visual equipment, computers and other equipment in any hearing of it;

(iv)direct that it be dealt with, and any evidence in relation to it be provided, by email, fax, telegram, telex, courier, post or other similar means;

(v)give directions for the speedier and more effective recording of evidence at any hearing of it;

(h)direct that an application for an adjournment of any proceeding be supported by affidavits of specified people;

(i)limit discovery or direct that discovery be given in stages;

(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 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;

(l)if under paragraph (j) or (k) a conference is directed to be held —

(i)subject to subrule (5) and rule 8, direct that it be conducted by a mediator;

(ii)direct that it be held by telephone, video link or other similar means of communication;

(iii)set the terms or conditions for it and deal with anything in relation to it;

(m)direct that a certificate of readiness is not required for the purposes of Order 33 or Order 58 rule 19;

(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; and

(ii)stating where and when it may be inspected; and

(iii)requiring B to serve A, within 7 days after the date on which the notice is served, a written notice agreeing or refusing to agree to the admission in evidence of the object without further proof of it;

(o)direct a practitioner for a party to give the party a memorandum stating —

(i)the approximate solicitor and client costs and disbursements of the party to the date of the memorandum; and

(ii)the estimated future solicitor and client costs and disbursements of the party to but not including the trial; and

(iii)the estimated length of the trial and the estimated solicitor and client costs and disbursements of the trial; and

(iv)the estimated party and party costs that would be payable by the party if the party were unsuccessful at trial;

(p)set a timetable for the trial of the case including a timetable that includes any limit that could be directed under Order 34 rule 5A(1);

(q)limit the length of written submissions that can be made in the case;

(r)direct the parties to prepare bundles, files or folders of documents for use at the trial of the case, either —

(i)grouped according to topic, class, category, allegation in issue or otherwise; or

(ii)in an order or sequence,

as specified in the direction, and identified or indexed as specified in the direction;

(s)direct a party to serve on the other parties, at times set by the case manager making the direction, a signed written statement of the proposed evidence in chief of each witness to be called by that party;

(t)direct that a signed written statement referred to in paragraph (s) or any part of it stand as the evidence in chief of the witness;

(u)change the venue of the trial, or adjourn the trial part heard to continue at a different venue;

(v)in exceptional circumstances, direct that an application made by a party under this Order operate as a stay of proceedings;

(w)in exceptional circumstances or if not to do so would frustrate the appeal, direct that an appeal against a decision made under this Order by a case management registrar operate as a stay of proceedings;

(x)give directions as to the manner in which the parties are to defray the costs of giving effect to any case management direction;

(y)direct that a specified case management direction be complied with by a set date;

(z)direct that a referee give the Court a report on any question or issue of fact.

(3)A case management direction may —

(a)include any ancillary direction that is needed for the purpose of the direction; and

(b)amend or cancel another case management direction.

(4)A registrar cannot make a case management direction —

(a)under subrule (2)(z); or

(b)under subrule (3)(b) that amends or cancels a case management direction made by a judge or master.

(5)A case management direction must not, without the consent of the parties, direct that a conference take place where a party would become liable to remunerate a mediator.

[Rule 2 inserted in Gazette 28 Jul 2010 p. 3441-6.]

3.Term used: enforcement order

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 date of the order;

(c)a self‑executing order for judgment, striking out pleadings or otherwise;

(d)an order under Order 66 rule 5.

[Rule 3 inserted in Gazette 28 Jul 2010 p. 3446.]

4.Inconsistencies with other rules

If a provision in this Order is inconsistent with these rules or the Supreme Court (Corporations) (WA) Rules 2004, the provision in this Order prevails.

[Rule 4 inserted in Gazette 28 Jul 2010 p. 3446.]

Division 2 — Provisions applicable to all cases

[Heading inserted in Gazette 28 Jul 2010 p. 3446.]

5.Court may review a case at any time

(1)The case manager for a CMC List case or, in any other case, a judge, master or registrar —

(a)at any time in the case, on his or her own initiative after notifying the parties; or

(b)when hearing a summons for directions or any other application in the case,

may review the progress of the case and may do any or all of the following —

(c)make any interlocutory order the Court considers just;

(d)make any case management direction the Court considers just;

(e)make any enforcement order the Court considers just.

(2)For the purposes of subrule (1)(a), a judge, master or registrar may at any time require any or all of the parties to a case to attend before him or her.

[Rule 5 inserted in Gazette 28 Jul 2010 p. 3446-7.]

6.Timetables

(1)This rule applies if the Court directs the parties to a case to comply with a timetable for procedural steps that are needed in the case.

(2)The judge, master or registrar making the direction must set the timetable.

(3)The judge, master or registrar making the direction or the case manager for the case may do any or all of the following —

(a)amend the timetable, whether on his or her own initiative or on a party’s application;

(b)at any time request the parties to explain in writing why the timetable has not been complied with;

(c)at any time summons the parties to explain why the timetable has not been complied with;

(d)for the purposes of hearing a summons issued under paragraph (c), direct the parties to file such affidavits in response to the summons at such times as he or she considers just;

(e)on the return of a summons issued under paragraph (c) —

(i)amend the timetable;

(ii)make any case management direction he or she considers just;

(iii)make any enforcement order he or she considers just;

(f)if a party does not comply with the timetable, or obey a summons issued under paragraph (c), or file affidavits as directed, make any case management direction or enforcement order he or she considers just.

(4)If a request is made under subrule (3)(b), the parties and their practitioners must —

(a)give the Court the information required within the time specified in the request; and

(b)serve the information on each other party.

[Rule 6 inserted in Gazette 28 Jul 2010 p. 3447-8.]

7.Who has to attend conferences

(1)This rule applies if a conference, other than a listing conference or a conference between experts, is required or directed under this Order to be held.

(2)Each party to the case and the practitioner, if any, representing each party must attend the conference, unless ordered otherwise.

(3)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 must attend the conference.

(4)If there is no practitioner on the record for a party that is a body corporate, the case manager presiding at the conference may permit a person who is not a practitioner to represent the party.

[Rule 7 inserted in Gazette 28 Jul 2010 p. 3448-9.]

8.Conferences of parties with mediator

(1)This rule applies if the Court directs the parties to a case to attend a conference conducted by a mediator.

(2)The Court must direct whether the mediator is to be an approved mediator or some other person.

(3)The Court must not direct that the mediator is to be a person who is not an approved mediator unless the parties consent.

(4)In the absence of any other order made by the Court —

(a)the conference must take place at the time and place directed; and

(b)if the Court does not set a date for the conference, each party must, subject to any directions, take the steps necessary to ensure the conference takes place as soon as possible; and

(c)each party’s costs of and incidental to the 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; and

(d)the fees and expenses of any mediator who is not a registrar must be paid by the parties in equal shares, unless it is ordered otherwise or the parties agree; and

(e)within 2 weeks after the conclusion of the conference, the plaintiff must file a report, signed by or on behalf of each party —

(i)confirming that the conference has taken place as directed; and

(ii)recording the substance of any resolution or narrowing of the points of difference between the parties resulting from the conference.

(5)The mediator —

(a)must not, unless the parties agree, report to the Court on the conference; but

(b)whether or not the parties agree, may report to the Court on any failure by a party to cooperate in the conference.

(6)A report given under subrule (5)(b) must not be disclosed to the trial judge except for the purposes of determining any question as to costs.

[Rule 8 inserted in Gazette 28 Jul 2010 p. 3449-50.]

9.Referees

(1)This rule applies if the Court directs that a referee give the Court a report on any question or issue of fact.

(2)The judge, master or registrar making the direction or the case manager for the case may do any or all of the following —

(a)appoint the referee;

(b)give the referee instructions about the question or issue of fact referred and the report required;

(c)give directions with respect to the conduct of proceedings before the referee;

(d)give directions for the provision —

(i)of services of officers of the Court;

(ii)of courtrooms and other facilities,

for the purpose of the referee;

(e)vary or cancel a direction given under this subrule.

(3)The judge, master or registrar making the direction or the case manager for the case may —

(a)determine the amount of the fees to be paid to the referee; and

(b)direct how, when and by whom the whole or any part of the fees referred to in paragraph (a) are to be paid.

(4)Evidence before the referee —

(a)may be given orally or in writing; and

(b)must, if the referee so requires, be given on oath or affirmation.

(5)Evidence additional to the evidence taken before the referee cannot be adduced before the Court except with the leave of the Court.

[Rule 9 inserted in Gazette 28 Jul 2010 p. 3450-1.]

Division 3 — Cases on the CMC List

[Heading inserted in Gazette 28 Jul 2010 p. 3451.]

10.Application of this Division

This Division applies to every CMC List case unless and to the extent it is ordered otherwise by a CMC List judge.

[Rule 10 inserted in Gazette 28 Jul 2010 p. 3451.]

11.Cases on CMC List

These cases are on the CMC List —

(a)any case in which defamation is alleged;

(ba)any case in which there is an application for —

(i)judicial review to which Order 56 applies; or

(ii)a review order under the Magistrates Court Act 2004 section 36; or

(iii)a writ of habeas corpus or an information of quo warranto;

(b)any case that is ordered to be on the list under rule 13;

(ca)any case involving proceedings to which Order 81D applies;

(c)any case on the CMC List, as established administratively by the Court, immediately before the Supreme Court Amendment Rules 2010 rule 5 comes into operation 1.

[Rule 11 inserted in Gazette 28 Jul 2010 p. 3451-2; amended in Gazette 15 Mar 2013 p. 1206; 23 Apr 2013 p. 1591 (disallowed in Gazette 1 Nov 2013 p. 4910); 17 Dec 2013 p. 6231.]

12.Headings to documents

The heading of every document filed or issued in a CMC List case must include “Commercial and Managed Cases List” under “In the Supreme Court of Western Australia”.

[Rule 12 inserted in Gazette 28 Jul 2010 p. 3452.]

13.CMC List judge may order case to be on or taken off CMC List

(1)Only a CMC List judge can order that a case be admitted to or taken off the CMC List.

(2)A CMC List judge, on his or her own initiative or on a request made under rule 14, may order a case to be admitted to the CMC List.

(3)A CMC List judge, on his or her own initiative or on an application by a party, may order a CMC List case to be taken off the list.

[Rule 13 inserted in Gazette 28 Jul 2010 p. 3452.]

14.Asking for case to be put on CMC List

(1)A party to a case may ask for an order that the case be admitted to the CMC List.

(2)The request should ordinarily be made as soon as possible after the case is commenced and each party who is required to enter an appearance has done so.

(3)The request must be made —

(a)by filing a letter, addressed to the Central Office, containing —

(i)the request; and

(ii)the email address (if any) of each party to the case, other than a party who is required to enter an appearance and has not;

and

(b)serving a copy of the letter on each other party to the case, other than a party who is required to enter an appearance and has not.

(4)The email addresses in the letter must comply with Order 71A rule 3.

(5)A request made under this rule must be decided by a CMC List judge.

(6)At the hearing of the request, the CMC List judge, if satisfied the case should be subject to this Division, may order the case be admitted to the CMC List unless a party shows cause why it should not be admitted.

[Rule 14 inserted in Gazette 28 Jul 2010 p. 3452-3.]

15.Interlocutory hearings

(1)The case manager of a CMC List case may hear any interlocutory matter relating to the case, or may refer the matter to another judge or master for hearing who has and may exercise all powers of the case manager.

(2)A party to a CMC List case who is represented by a practitioner need not attend an interlocutory hearing in the case unless subpoenaed or ordered to do so by the case manager.

[Rule 15 inserted in Gazette 28 Jul 2010 p. 3453.]

Division 4 — Cases not on the CMC List

[Heading inserted in Gazette 28 Jul 2010 p. 3453.]

16.Application of this Division

This Division applies to every case that is not on the CMC List unless and to the extent it is ordered otherwise by a judge or master.

[Rule 16 inserted in Gazette 28 Jul 2010 p. 3453.]

17.Requesting interlocutory orders and case management directions

(1)A party to a case may at any time ask a case manager for any or all of the following —

(a)for any interlocutory order that the case manager has jurisdiction to make;

(b)for a case management direction to be made under this Order;

(c)to have a case management direction amended or cancelled.

(2)The request must be made by giving a letter that details the order or direction wanted to the associate to the case manager, or if the case manager is not known, the Principal Registrar.

(3)A case manager, on receipt of the request —

(a)if the manager has jurisdiction to make the order or direction —

(i)may deal with the request without requiring the parties to attend a hearing; or

(ii)may deal with the request at any conference required by this Order or at the hearing of any other matter in the case and for that purpose may relist such a conference or matter;

or

(b)otherwise, may refer the request to a judge or master who has jurisdiction to make the order or direction.

[Rule 17 inserted in Gazette 28 Jul 2010 p. 3454.]

18.Status conference

(1)A case manager shall summons all parties to a case to attend a status conference before a case manager.

(2)The status conference must be held within 21 days after the first appearance is entered in the case or at a later time decided by a case manager.

(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 manager 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 manager 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;

(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 manager may at the request of a party or the parties or on the manager’s own initiative —

(a)make any interlocutory order the manager considers just;

(b)make any case management direction the manager considers just;

(c)make any enforcement order the manager considers just;

(d)make an order that rule 19 does not apply to the case.

(7)A case manager may adjourn the status conference from time to time.

[Rule 18 inserted in Gazette 28 Jul 2010 p. 3455-6.]

19.Case evaluation conference

(1)Unless ordered otherwise under rule 18(6)(d), a case manager must summons all parties to a case to attend a case evaluation conference before a case manager.

(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 manager.

(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 manager is to review the documents on the Court file and inquire into these matters —

(a)the state of the pleadings and if 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;

(g)the administrative resources likely to be needed for the trial.

(5)At the case evaluation conference the case manager may at the request of a party or the parties or on the manager’s own initiative do any or all of the following —

(a)make any interlocutory order the manager considers just;

(b)make any case management direction the manager considers just;

(c)make any enforcement order the manager considers just.

(6)A case manager 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 19 inserted in Gazette 28 Jul 2010 p. 3456-7.]

20.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;

(d)whether the case in all respects is ready to go to trial.

(4)At the listing conference the judge may do any or all of the following —

(a)make any case management direction the judge considers just;

(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 20 inserted in Gazette 28 Jul 2010 p. 3458-9.]

Division 5 — Inactive Cases List

[Heading inserted in Gazette 28 Jul 2010 p. 3459.]

21.Term used: Inactive Cases List

In this Division —

Inactive Cases List means a list of inactive cases kept by the Principal Registrar under rule 25.

[Rule 21 inserted in Gazette 28 Jul 2010 p. 3459.]

22.Case manager may issue summons to show cause

(1)The case manager of a case may at any time summons the parties to attend a hearing before a case manager 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 the case manager 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 22 inserted in Gazette 28 Jul 2010 p. 3459.]

23.Springing order that case be put on Inactive Cases List

(1)A judge, master or registrar making an interlocutory order or case management direction in a case may include an order that unless the interlocutory order or direction 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 23 inserted in Gazette 28 Jul 2010 p. 3460.]

24.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 taken to be inactive unless the case manager for the case orders otherwise.

[Rule 24 inserted in Gazette 28 Jul 2010 p. 3460.]

25.Parties to be notified of case being on Inactive Cases List and to advise clients

(1)When an order is made under rule 22(4), or an order made under rule 23(1) takes effect, or a case is taken to be inactive under rule 24, 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 26.

(2)As soon as practicable after being notified under subrule (1), the practitioner for a party to the case must notify the party of —

(a)the fact that the case is on the Inactive Cases List and why; and

(b)the effect of rule 26.

[Rule 25 inserted in Gazette 28 Jul 2010 p. 3460.]

26.Consequences of case being on Inactive Cases List

(1)If a case is on the Inactive Cases List, only these documents may be filed in the Court in relation to the case —

(a)a summons for an order under rule 27(1);

(b)a notice of discontinuance by the plaintiff under Order 23 rule 2;

(c)an application for leave made by the plaintiff or the defendant under Order 23 rule 2;

(d)a written consent under Order 43 rule 16 to the making of an order that would finally dispose of the case.

(2)If the plaintiff or defendant in a case on the Inactive Cases List files an application for leave under Order 23 rule 2, the Court may grant leave under that rule even though the case has not been removed from that list.

(3)If a written consent is filed under Order 43 rule 16 to the making of an order in a case on the Inactive Cases List that would finally dispose of the case, the Court may make the order even though the case has not been removed from that list.

[Rule 26 inserted in Gazette 12 Jun 2012 p. 2445-6.]

27.Removing cases from Inactive Cases List

(1)Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List.

(2)The Court may order a case be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.

(3)An order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way.

[Rule 27 inserted in Gazette 28 Jul 2010 p. 3461.]

28.Certain inactive cases to be taken to have been dismissed

(1)A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution.

(2)If no procedural step (except an application to dismiss the case for want of prosecution) is taken in the 6 months after the date on which a case is ordered to be taken off the Inactive Cases List, the case is taken to have been dismissed for want of prosecution.

(3)If under subrule (1) or (2) a case is dismissed, the Principal Registrar must give all parties to the case written notice of the fact.

(4)Notwithstanding a case is dismissed under subrule (1) or (2) —

(a)any party to the case may apply for an order for costs; and

(b)the Court may make an order as to costs.

[Rule 28 inserted in Gazette 28 Jul 2010 p. 3461; amended in Gazette 12 Jun 2012 p. 2446.]

Order 4  Mode of commencing proceedings: applications in pending proceedings

1.Commencing 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.Individual may act in person or by solicitor; body corporate must act by solicitor

(1)Subject to subrule (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.

[Rule 3 amended in Gazette 28 Jun 2011 p. 2552.]

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.Writ for service outside WA, form of

A writ to be served outside the State shall be in the form of Form 3.

[Rule 2 inserted in Gazette 12 Jun 2012 p. 2446.]

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.Writ for service outside Australia, leave to issue needed

A writ for service outside Australia shall not be issued without the leave of the Court.

[Rule 9 inserted in Gazette 12 Jun 2012 p. 2446.]

10.All writs to be in name of Chief Justice or Senior Puisne Judge

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

(1)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 km from Perth ..........

10 days.

300 km but less than 600 km from Perth ................................................


16 days.

600 km and above 600 km ..............

21 days.

(2)Outside the State but within Australia

See subrule (2).

(3)Outside Australia ................................

See subrule (3).

(2)In respect of a writ to be served outside the State but within Australia , the time must accord with the Service and Execution of Process Act 1992 (Commonwealth).

(3)In respect of a writ to be served outside Australia , the time must be fixed by the Court in accordance with Order 10 rule 5.

(4)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; 3 Jul 2009 p. 2683; 12 Jun 2012 p. 2453.]

Order 6 — Indorsement of claim: other indorsements

1.Nature of claim etc. to be indorsed on writ

(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 subrule (1) the defendant may apply before appearance to set aside or amend the writ or for particulars.

[Rule 1 amended in Gazette 28 Jun 2011 p. 2552.]

2.Action 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.Statement of claim may be indorsed on writ in some actions

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.Claim for liquidated demand, indorsements required for, costs etc.

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.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.Proof 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 affecting the generality of subrule (1) —

(a)a writ to be served within the jurisdiction may be issued as a concurrent writ with one to be served out of the jurisdiction; and

(b)a writ to be served out of the jurisdiction may be issued as a concurrent writ with one to be served 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.

[Rule 3 amended in Gazette 28 Jun 2011 p. 2552; 12 Jun 2012 p. 2447.]

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, if required to, whether writ issued by him

(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.Change of solicitor acting as 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.Appointment of solicitor by self-represented person

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.Intention to act in person, notice of

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 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 solicitor who has ceased to act for 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 rules 1 to 6, 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 subrule (1).

[Rule 7 amended in Gazette 15 Jun 1973 p. 2247; 23 May 1975 p. 1404; 28 Jun 2011 p. 2552 and 2553.]

8.Effect of order made under this 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 the 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 9A  Interested non‑parties

[Heading inserted in Gazette 12 Jun 2012 p. 2447.]

1.Term used: interested non‑party

In this Order —

interested non‑party, in relation to a party to a case, means a person, other than a practitioner for the party, who —

(a)provides funding or other financial assistance to the party for the purposes of conducting the case; and

(b)exercises direct or indirect control or influence over the way in which the party conducts the case.

[Rule 1 inserted in Gazette 12 Jun 2012 p. 2447.]

2.Parties to advise identity of interested non‑parties

(1)A party to a case must notify the Principal Registrar and each other party to the case of the identity of any person who is an interested non‑party in relation to the party to the case.

(2)The notice is to be given in writing as soon as is reasonably practicable after the person becomes an interested non‑party in relation to the party to the case.

[Rule 2 inserted in Gazette 12 Jun 2012 p. 2447.]

3.Duties of interested non‑party

The duties to the Court of an interested non‑party in relation to a party to a case are the following —

(a)not to engage in conduct which is misleading or deceptive, or to aid, abet or induce such conduct, in connection with the conduct of the case;

(b)to cooperate with the parties and the Court in connection with the conduct of the case;

(c)to use reasonable endeavours to ensure that the goal in Order 1 rule 4A and the objects in Order 1 rule 4B are attained.

[Rule 3 inserted in Gazette 12 Jun 2012 p. 2447-8.]

Order 9 — Service of originating process: general provisions

1.Service of writ, 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 subrule (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.

[Rule 1 amended in Gazette 28 Jun 2011 p. 2552.]

2.Service of writ as to contract on agent of principal who is outside WA

(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.Serving writ in accordance with contract, effect of

(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 subrule (2), be deemed to have been duly served on the defendant.

(2)A writ served outside Australia in accordance with a contract shall not be deemed to have been duly served on the defendant by virtue of subrule (1) unless leave to serve the writ outside Australia has been granted under Order 10 rule 1 or 2.

[Rule 3 amended in Gazette 28 Jun 2011 p. 2552; 12 Jun 2012 p. 2448.]

4.Writ for possession of land where no person in possession, service of

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 other originating process

Rules 1 to 4 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.

[Rule 5 amended in Gazette 28 Jun 2011 p. 2553.]

Order 10 — Service out of the jurisdiction

1A.When leave to serve is required; application of r. 9 to 11

(1)A writ served on a person outside the State but in Australia has no effect unless the person was served under the Service and Execution of Process Act 1992 (Commonwealth).

(2)A writ served on a person outside Australia, except a writ served on a person in New Zealand under the Trans‑Tasman Proceedings Act 2010 (Commonwealth), has no effect unless —

(a)the Court, under this Order, granted leave to serve the person; and

(b)the person was served —

(i)under rules 9 to 11; or

(ii)under Order 11A and the convention referred to in that Order.

(3A)A writ served on a person in New Zealand has no effect unless it is served under the Trans‑Tasman Proceedings Act 2010 (Commonwealth).

(3)Rules 9 to 11 do not apply to or in relation to the service of a writ on a person outside Australia under the convention referred to in Order 11A.

[Rule 1A inserted in Gazette 3 Jul 2009 p. 2683‑4; amended in Gazette 12 Jun 2012 p. 2448 and 2453; 3 Aug 2012 p. 3749.]

1.When service out of jurisdiction is permissible

(1)The Court may grant leave to serve a person outside Australia with a writ, or notice of a writ, that begins an action if —

(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 paragraph (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 subrule (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.

[Rule 1 amended in Gazette 3 Jul 2009 p. 2684; 28 Jun 2011 p. 2552 and 2553; 12 Jun 2012 p. 2448 and 2453.]

2.Service out of jurisdiction of writ etc. as to 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 grant leave to serve a person outside Australia with a writ, or notice of a writ, that begins such an action.

[Rule 2 amended in Gazette 3 Jul 2009 p. 2684; 12 Jun 2012 p. 2448 and 2453.]

[3.Deleted in Gazette 12 Jun 2012 p. 2448.]

4.Application for leave under r. 1 or 2

(1)An application for a grant of leave under rule 1 or 2 must be supported by an affidavit that states —

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

(b)where, outside Australia , the person to be served is or probably may be.

(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; 12 Jun 2012 p. 2448.]

5.Time for appearance

(1)An order made under this Order granting leave to serve a writ outside Australia must limit the time within which the person to be served can enter an appearance.

(2)In fixing that limit, the Court must have regard to the place or country where the writ is to be served.

(3)If the writ is to be served under the convention referred to in Order 11A, subrule (1) is subject to that Order.

[Rule 5 inserted in Gazette 12 Jun 2012 p. 2449.]

[6.Deleted in Gazette 12 Jun 2012 p. 2449.]

7.Other documents, service of outside Australia

The Court may grant leave to serve a person outside Australia with any originating process, other than a writ, or with any summons, order or notice in any proceedings duly instituted, whether by writ of summons or otherwise, and rules 1A, 4 and 5, with any necessary changes, apply to such service.

[Rule 7 inserted in Gazette 12 Jun 2012 p. 2449.]

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 or diplomatic officials

(1)This rule does not apply to service in — 

(a)the United Kingdom ;

(b)any country listed in Schedule 3 to the British Nationality Act 1981 ( United Kingdom );

(c)any British possession.

(2)If leave is granted to serve a writ on a person in a foreign country and a convention about such service applies to the country and to Australia or this State, 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)If leave is granted to serve a writ on a person in a country and there is no such convention, 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)A person who wishes to serve a writ by a method described in subrule (2) or (3) must lodge in the Central Office a request for service of the writ by that method, together with a copy of the writ and an additional copy thereof for each person to be served.

(5)Every copy of a writ lodged under subrule (4) shall be accompanied by a translation of the writ 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 subrule does not apply where the copy of the writ 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 subrule (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 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 subrule (8) in relation to the service 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; 3 Jul 2009 p. 2685; 28 Jun 2011 p. 2552; 12 Jun 2012 p. 2449-50.]

10.Service abroad, general and saving provisions

(1)Subject to rule 9(9), to the following provisions of this rule and to any direction given by the Court as to the manner in which the writ shall be served or brought to the notice of the person, Order 9 rule 1 and Order 72 rule 4 apply in relation to the service of a writ, notwithstanding it is to be served outside Australia.

(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 to be served outside Australia  —

(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.

[Rule 10 amended in Gazette 12 Jun 2012 p. 2450.]

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.Deleted in Gazette 3 Jul 2009 p. 2685.]

1.Terms used

In this Order — 

official channel includes a consular or other authority of the foreign country concerned;

process includes a citation.

2A.Application of this Order

(1)If the Court receives a letter of request for service of process on a person in this State from —

(a)a court or tribunal; or

(b)a consular or other authority,

of a Convention country (as defined in Order 11A rule 1), then, unless Order 11A Division 4 applies, rule 2 or 3, as the case requires, and rules 4 and 5 apply and Order 11A Division 4 does not.

(2)If Order 11A Division 4 applies to a request referred to in subrule (1), rules 2 to 5 do not apply.

[Rule 2A inserted in Gazette 3 Jul 2009 p. 2685.]

2.Service pursuant to letter of request for service

(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.

[Rule 2 amended in Gazette 14 Dec 1979 p. 3869; 12 Jun 2012 p. 2450.]

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 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.

[Rule 3 amended in Gazette 14 Dec 1979 p. 3869; 12 Jun 2012 p. 2450 and 2453.]

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 under the Hague Convention

[Heading inserted in Gazette 3 Jul 2009 p. 2685.]

Division 1 — Preliminary

[Heading inserted in Gazette 3 Jul 2009 p. 2685.]

Note 1.This Order forms part of a scheme to implement Australia ’s obligations under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the Convention, the Attorney‑General’s Department of the Commonwealth is designated as the Central Authority (under Article 2 of the Convention) and certain courts and government departments are, for certain purposes, designated as “other” or “additional” authorities (under Article 18 of the Convention).

Note 2.This Order provides (in Division 2) for service in overseas Convention countries of local judicial documents (documents that relate to proceedings in the Court) and (in Division 3) for default judgment in proceedings in the Court after service overseas of such a document. Division 4, on the other hand, deals with service by the Court or arranged by the Court in its role as an other or additional authority, of judicial documents emanating from overseas Convention countries.

Note 3.The Attorney‑General’s Department of the Commonwealth maintains a copy of the Convention, a list of all Convention countries, details of declarations and objections made under the Convention by each of those countries and the names and addresses of the Central and other authorities of each of those countries. A copy of the Convention can be found at http://www.hcch.net.

1.Terms used

In this Order —

additional authority, for a Convention country, means an authority that is —

(a)for the time being designated by that country, under Article 18 of the Hague Convention, to be an authority (other than the Central Authority) for that country; and

(b)competent to receive requests for service abroad emanating from Australia ;

applicant, for a request for service abroad or a request for service in this jurisdiction, means the person on whose behalf service is requested;

Central Authority, for a Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Convention, to be the Central Authority for that country;

certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Convention;

certifying authority, for a Convention country, means the Central Authority for the country or some other authority that is for the time being designated by the country, under Article 6 of the Hague Convention, to complete certificates of service in the form annexed to the Hague Convention;

civil proceedings means any judicial proceedings in relation to civil or commercial matters;

Convention country means a country, other than Australia , that is a party to the Hague Convention;

defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served;

foreign judicial document means a judicial document that originates in a Convention country and that relates to civil proceedings in a court of that country;

forwarding authority —

(a)for a request for service of a foreign judicial document in this jurisdiction — the authority or judicial officer of the Convention country in which the document originates that forwards the request (being an authority or judicial officer that is competent under the law of that country to forward a request for service under Article 3 of the Hague Convention); or

(b)for a request for service of a local judicial document in a Convention country — the registrar;

Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965;

initiating process means any document by which proceedings (including proceedings on any cross‑claim or third party notice) are commenced;

local judicial document means a judicial document that relates to civil proceedings in the Court;

request for service abroad means a request for service in a Convention country of a local judicial document mentioned in rule 4(1);

request for service in this jurisdiction means a request for service in this jurisdiction of a foreign judicial document mentioned in rule 13(1);

this jurisdiction means Western Australia .

[Rule 1 inserted in Gazette 3 Jul 2009 p. 2686‑7.]

2.Provisions of this Order to prevail

The provisions of this Order prevail to the extent of any inconsistency between those provisions and any other provisions of these rules.

[Rule 2 inserted in Gazette 3 Jul 2009 p. 2687.]

Division 2 — Service abroad of local judicial documents

[Heading inserted in Gazette 3 Jul 2009 p. 2687.]

3.Application of this Division

(1)Subject to subrule (2), this Division applies to service in a Convention country of a local judicial document.

(2)This Division does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Convention.

[Rule 3 inserted in Gazette 3 Jul 2009 p. 2687.]

4.Application for request for service abroad

(1)A person may apply to the registrar, in the registrar’s capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document.

(2)The application must be accompanied by 3 copies of each of the following documents —

(a)a draft request for service abroad, which must be in the form of Form 5A Part 1;

(b)the document to be served;

(c)a summary of the document to be served, which must be in the form of Form 5B;

(d)if, under Article 5 of the Hague Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, the official language or one of the official languages of that country, a translation into that language of both the document to be served and the summary of the document to be served.

(3)The application must contain a written undertaking to the Court, signed by the practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no practitioner on the record for the applicant in those proceedings, by the applicant —

(a)to be personally liable for all costs that are incurred —

(i)by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Convention country in which the documents are to be served; or

(ii)by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served;

and

(b)to pay the amount of those costs to the registrar within 28 days after receipt from the registrar of a notice specifying the amount of those costs under rule 6(3); and

(c)to give such security for those costs as the registrar may require.

(4)The draft request for service abroad —

(a)must be completed (except for signature) by the applicant; and

(b)must state whether (if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected) the applicant wants service to be attempted after the expiry of that time; and

(c)must be addressed to the Central Authority, or to an additional authority, for the Convention country in which the person is to be served; and

(d)may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority.

(5)Any translation required under subrule (2)(d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating —

(a)that the translation is an accurate translation of the documents to be served; and

(b)the translator’s full name and address and his or her qualifications for making the translation.

[Rule 4 inserted in Gazette 3 Jul 2009 p. 2687‑9.]

5.How application to be dealt with

(1)If satisfied that the application and its accompanying documents comply with rule 4, the registrar —

(a)must sign the request for service abroad; and

(b)must forward 2 copies of the relevant documents —

(i)if the applicant has asked for the request to be forwarded to a nominated additional authority for the Convention country in which service of the document is to be effected — to the nominated additional authority; or

(ii)in any other case — to the Central Authority for the Convention country in which service of the document is to be effected.

(2)The relevant documents mentioned in subrule (1)(b) are the following —

(a)the request for service abroad (duly signed);

(b)the document to be served;

(c)the summary of the document to be served;

(d)if required under rule 4(2)(d), a translation into the relevant language of each of the documents mentioned in paragraphs (b) and (c).

(3)If not satisfied that the application or any of its accompanying documents complies with rule 4, the registrar must inform the applicant of the respects in which the application or document fails to comply.

[Rule 5 inserted in Gazette 3 Jul 2009 p. 2689.]

6.Procedure on receipt of certificate of service

(1)Subject to subrule (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the registrar —

(a)must arrange for the original certificate to be filed in the proceedings to which the document relates; and

(b)must send a copy of the certificate to —

(i)the practitioner on the record for the applicant in those proceedings; or

(ii)if there is no practitioner on the record for the applicant in those proceedings — the applicant.

(2)For the purposes of subrule (1), a certificate of service is in due form if —

(a)it is in the form of Form 5A Part 2; and

(b)it has been completed by a certifying authority for the Convention country in which service was requested; and

(c)if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority, it has been so countersigned.

(3)On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in subrule (1), the registrar must send to the practitioner or applicant who gave the undertaking mentioned in rule 4(3) a notice specifying the amount of those costs.

(4)For the purposes of subrule (3), a statement of costs is in due form if —

(a)it relates only to costs of a kind mentioned in rule 4(3)(a); and

(b)it has been completed by a certifying authority for the Convention country in which service was requested.

(5)Subrule (1) does not apply unless —

(a)adequate security to cover the costs mentioned in subrule (3) has been given under rule 4(3)(c); or

(b)to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to the registrar.

[Rule 6 inserted in Gazette 3 Jul 2009 p. 2689‑90.]

7.Payment of costs

(1)On receipt of a notice under rule 6(3) in relation to the costs of service, the practitioner or applicant, as the case may be, must pay to the registrar the amount specified in the notice as the amount of those costs.

(2)If the practitioner or applicant fails to pay that amount within 28 days after receiving the notice —

(a)except by leave of the Court, the applicant may not take any further step in the proceedings to which the local judicial document relates until those costs are paid to the registrar; and

(b)the registrar may take such steps as are appropriate to enforce the undertaking for payment of those costs.

[Rule 7 inserted in Gazette 3 Jul 2009 p. 2690‑1.]

8.Evidence of service

A certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of rule 6(2)) that certifies that service of the document was effected on a specified date, is, in the absence of any evidence to the contrary, sufficient proof that —

(a)service of the document was effected by the method specified in the certificate on that date; and

(b)if that method of service was requested by the applicant, that method is compatible with the law in force in the Convention country in which service was effected.

[Rule 8 inserted in Gazette 3 Jul 2009 p. 2691.]

Division 3 — Default judgment following service abroad of initiating process

[Heading inserted in Gazette 3 Jul 2009 p. 2691.]

9.Application of this Division

This Division applies to civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Convention country.

[Rule 9 inserted in Gazette 3 Jul 2009 p. 2691.]

10.Restriction on power to enter default judgment if certificate of service filed

(1)This rule applies if —

(a)a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 6(2)) that states that service has been duly effected; and

(b)the defendant has not appeared or filed a notice of address for service.

(2)In circumstances to which this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that —

(a)the initiating process was served on the defendant —

(i)by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory; or

(ii)if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in that country, by that method; or

(iii)if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily;

and

(b)the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.

(3)In subrule (2)(b) —

sufficient time means —

(a)42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or

(b)such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.

[Rule 10 inserted in Gazette 3 Jul 2009 p. 2691‑2.]

11.Restriction on power to enter default judgment if certificate of service not filed

(1)This rule applies if —

(a)a certificate of service of initiating process has not been filed in the proceedings; or

(b)a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 6(2)) that states that service has not been effected,

and the defendant has not appeared or filed a notice of address for service.

(2)If this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that —

(a)the initiating process was forwarded to the Central Authority, or to an additional authority, for the Convention country in which service of the initiating process was requested; and

(b)a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which the initiating process was so forwarded; and

(c)every reasonable effort has been made —

(i)to obtain a certificate of service from the relevant certifying authority; or

(ii)to effect service of the initiating process,

as the case requires.

[Rule 11 inserted in Gazette 3 Jul 2009 p. 2692‑3.]

12.Setting aside judgment in default of appearance

(1)This rule applies if default judgment has been entered against the defendant in proceedings to which this Division applies.

(2)If this rule applies, the Court may set aside the judgment on the application of the defendant if it is satisfied that the defendant —

(a)without any fault on the defendant’s part, did not have knowledge of the initiating process in sufficient time to defend the proceedings; and

(b)has a prima facie defence to the proceedings on the merits.

(3)An application to have a judgment set aside under this rule may be filed —

(a)at any time within 12 months after the date on which the judgment was given; or

(b)after the expiry of that 12‑month period, within such time after the defendant acquires knowledge of the judgment as the Court considers reasonable in the circumstances.

(4)Nothing in this rule affects any other power of the Court to set aside or vary a judgment.

[Rule 12 inserted in Gazette 3 Jul 2009 p. 2693.]

Division 4 — Local service of foreign judicial documents

[Heading inserted in Gazette 3 Jul 2009 p. 2693.]

13.Application of this Division

(1)This Division applies to service in this jurisdiction of a foreign judicial document in relation to which a due form of request for service has been forwarded to the Court —

(a)by the Attorney‑General’s Department of the Commonwealth, whether in the first instance or following a referral under rule 14; or

(b)by a forwarding authority.

(2)Subject to subrule (3), a request for service in this jurisdiction is in due form if it is in the form of Form 5A Part 1 and is accompanied by the following documents —

(a)the document to be served;

(b)a summary of the document to be served, which must be in the form of Form 5B;

(c)a copy of the request and of each of the documents mentioned in paragraphs (a) and (b);

(d)if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.

(3)Any translation required under subrule (2)(d) must bear a certificate (in English) 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 13 inserted in Gazette 3 Jul 2009 p. 2693‑4.]

14.Certain documents to be referred back to Attorney‑General’s Department of Commonwealth

If, after receiving a request for service in this jurisdiction, the registrar is of the opinion —

(a)that the request does not comply with rule 13; or

(b)that the document to which the request relates is not a foreign judicial document; or

(c)that compliance with the request may infringe Australia ’s sovereignty or security; or

(d)that the request seeks service of a document in some other State or Territory of the Commonwealth,

the registrar must refer the request to the Attorney‑General’s Department of the Commonwealth together with a statement of his or her opinion.

Note.The Attorney‑General’s Department of the Commonwealth will deal with misdirected and non‑compliant requests, make arrangements for the service of extrajudicial documents and assess and decide questions concerning Australia ’s sovereignty and security.

[Rule 14 inserted in Gazette 3 Jul 2009 p. 2694.]

15.Service

(1)Subject to rule 14, on receipt of a request for service in this jurisdiction, the Court must arrange for the service of the relevant documents in accordance with the request.

(2)The relevant documents mentioned in subrule (1) are the following —

(a)the document to be served;

(b)a summary of the document to be served;

(c)a copy of the request for service in this jurisdiction;

(d)if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.

(3)Service of the relevant documents may be effected by any of the following methods of service —

(a)by a method of service prescribed by the law in force in this jurisdiction —

(i)for the service of a document of a kind corresponding to the document to be served; or

(ii)if there is no such corresponding kind of document, for the service of initiating process in proceedings in the Court;

(b)if the applicant has requested a particular method of service and that method is compatible with the law in force in this jurisdiction, by that method;

(c)if the applicant has not requested a particular method of service and the person requested to be served accepts the document voluntarily, by delivery of the document to the person requested to be served.

[Rule 15 inserted in Gazette 3 Jul 2009 p. 2694‑5.]

16.Affidavit as to service

(1)If service of a document has been effected pursuant to a request for service in this jurisdiction, the person by whom service has been effected must lodge with the Court an affidavit specifying —

(a)the time, day of the week and date on which the document was served; and

(b)the place where the document was served; and

(c)the method of service; and

(d)the person on whom the document was served; and

(e)the way in which that person was identified.

(2)If attempts to serve a document pursuant to a request for service in this jurisdiction have failed, the person by whom service has been attempted must lodge with the Court an affidavit specifying —

(a)details of the attempts made to serve the document; and

(b)the reasons that have prevented service.

(3)When an affidavit as to service of a document has been lodged in accordance with this rule, the registrar —

(a)must complete a certificate of service, sealed with the seal of the Court, on the reverse side of, or attached to, the request for service in this jurisdiction; and

(b)must forward the certificate of service, together with a statement as to the costs incurred in relation to the service or attempted service of the document, directly to the forwarding authority from which the request was received.

(4)A certificate of service must be —

(a)in the form of Form 5A Part 2; or

(b)if a form of certificate of service that substantially corresponds to Form 5A Part 2 accompanies the request for service, in that accompanying form.

[Rule 16 inserted in Gazette 3 Jul 2009 p. 2695‑6.]

[Orders 11B and 11C deleted in Gazette 3 Jul 2009 p. 2685.]

Order 12  Appearance

1.Who may enter appearance

(1)Subject to subrule (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; 28 Jun 2011 p. 2552.]

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 subrule (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.

[Rule 5 amended in Gazette 28 Jun 2011 p. 2552.]

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 writ etc. before appearance

A defendant to an action, at any time before entering an appearance in it, may serve notice of motion to —

(a)set aside the writ or service of the writ on the defendant; or

(b)discharge any order that granted leave to serve the writ on the defendant outside Australia .

[Rule 7 inserted in Gazette 12 Jun 2012 p. 2451.]

8.Person not named may defend action for possession of 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 under r. 8 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.Limiting defence in action for possession of land

(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 subrule (1) shall be in accordance with Form No. 7.

[Rule 10 amended in Gazette 28 Jun 2011 p. 2552.]

Order 13 — Default of appearance to writ

1.Prerequisites for judgment in default of appearance etc.

(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 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.

[Rule 1 amended in Gazette 12 Jun 2012 p. 2451.]

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.Claim for liquidated demand against several defendants, effect of final judgment on

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.Writs for 2 or more claims in r. 2 to 5 and 7

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.Writs for other claims

(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 subrule (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; 28 Jun 2011 p. 2552.]

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 in default

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.When plaintiff may apply 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 under r. 1, how to make

(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.Defendant may be given 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 subrule (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; and

(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).

[Rule 6 amended in Gazette 28 Jun 2011 p. 2552.]

7.Court’s powers if leave to defend given etc.

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 subrule (1) to dismiss an application under rule 1, and that subrule shall apply accordingly with the necessary modifications.

[Rule 8 amended in Gazette 15 Jun 1973 p. 2248; 28 Jun 2011 p. 2552.]

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 judgment for recovery of land

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.Summary judgment against absent party may be set aside or varied

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.Application by defendant 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 subrule (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; 28 Jun 2011 p. 2552.]

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.

(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; 28 Jul 2010 p. 3482.]

3.Court’s powers if action to go to trial

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.Summary judgment against absent party 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.When interpleader relief may be granted

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.How to apply for interpleader relief

(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 subrule (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; and

(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; 28 Jun 2011 p. 2552.]

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.Court’s powers on application

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.Orders as to costs etc.

Subject to rules 1 to 11, 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.

[Rule 15 amended in Gazette 28 Jun 2011 p. 2553.]

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 subrule 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 subrule (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 subrule (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, Order 12 and Order 13 shall, subject to subrule (3), 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; 28 Jun 2011 p. 2552 and 2553; 12 Jun 2012 p. 2451.]

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 subrule, be made a defendant.

This subrule 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.

[Rule 4 amended in Gazette 28 Jun 2011 p. 2552.]

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 subrule (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.

[Rule 6 amended in Gazette 28 Jun 2011 p. 2552.]

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 subrule 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.

[Rule 7 amended in Gazette 28 Jun 2011 p. 2552.]

8.Order made under r. 6 or 7, consequences of

(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 such an order 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.

[Rule 8 amended in Gazette 28 Jun 2011 p. 2553.]

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.Action for possession of land, joining non-party who is in possession

(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 subrule, 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 subrule (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 subrule (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.

[Rule 12 amended in Gazette 28 Jun 2011 p. 2552.]

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 subrule (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 subrule (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 subrule (1) applies, the Court exercises the power conferred by that subrule, 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 subrule (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.

[Rule 13 amended in Gazette 28 Jun 2011 p. 2552.]

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)Subrule (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.

[Rule 14 amended in Gazette 28 Jun 2011 p. 2552.]

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 subrule (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.

[Rule 1 amended in Gazette 28 Jun 2011 p. 2552.]

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; and

(b)the stage which proceedings in the action have reached; and

(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 subrules (1) and (2), the following provisions of these rules, namely, Order 5 rules 7, 8 and 11, Order 9 except rule 1(4), Order 10 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; 28 Jun 2011 p. 2553; 12 Jun 2012 p. 2451.]

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 subrule (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; 28 Jun 2011 p. 2552.]

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 subrule (1)(b) or subrule (2) on such terms (if any) as it thinks just.

[Rule 5 amended in Gazette 28 Jun 2011 p. 2552.]

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 defendant and another 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 subrule (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 subrule (1) and that claim could be made by him by counterclaim in the action, subrule (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”.

[Rule 8 amended in Gazette 28 Jun 2011 p. 2552.]

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 subrule (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 subrule (1) is that subrule (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.

[Rule 9 amended in Gazette 28 Jun 2011 p. 2552.]

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, rules 1 to 10 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.

[Rule 11 amended in Gazette 28 Jun 2011 p. 2553.]

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.Statement of claim, service of

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 is served on that defendant or at any time after service of the writ but before the expiration of 14 days after that defendant enters an appearance.

[Rule 1 amended in Gazette 12 Jun 2012 p. 2451.]

2.Statement of claim, content of

(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 subrule (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.

[Rule 2 amended in Gazette 28 Jun 2011 p. 2552.]

3.Pleadings etc. to be filed before service

(1)Subject to subrule (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 one working day after the date of filing the original.

(2)This rule does not apply where the statement of claim is indorsed on the writ.

[Rule 3 amended in Gazette 28 Jul 2010 p. 3462; 28 Jun 2011 p. 2552.]

4.Defence, service of

(1)Subject to subrule (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, subrule (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.

[Rule 4 amended in Gazette 28 Jun 2011 p. 2552.]

5.Reply and defence to counterclaim, service of

(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 etc., leave required for

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 of

(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; and

(b)the title of the action; and

(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 subrule (5) if the pleading is signed by a solicitor who — 

(a)is employed by the party’s solicitor; and

(b)has settled the pleading; and

(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; 28 Jun 2011 p. 2552.]

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 subrule (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.

[Rule 8 amended in Gazette 28 Jun 2011 p. 2552.]

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 subrule (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; and

(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; 28 Jun 2011 p. 2552.]

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.Party’s pleadings to be consistent

(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)Subrule (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.

[Rule 11 amended in Gazette 28 Jun 2011 p. 2552.]

12.Points of law may be pleaded

A party may by his pleading raise any point of law.

13.Particulars of claims etc.

(1)Subject to subrule (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 subrule (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; 28 Jun 2011 p. 2552.]

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, traverses etc.

(1)Subject to subrule (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 subrule (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.

[Rule 14 amended in Gazette 28 Jun 2011 p. 2552.]

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 subrule (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.

[Rule 15 amended in Gazette 28 Jun 2011 p. 2552.]

16.Defence of tender not available without payment into court

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 etc.

(1)The Court may at any stage of the proceedings, subject to subrule (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 subrule (1)(a).

(3)Subject to subrule (4) an application for an order under subrule (1) must — 

(a)be made within 21 days of the service of any pleading, or amended pleading, or writ to which the application refers; and

(b)where the application is to strike out certain pleadings, specify — 

(i)the paragraph of subrule (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; 28 Jun 2011 p. 2552 and 2553.]

20.Close of pleadings

(1)Subject to subrule (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.

[Rule 20 amended in Gazette 28 Jun 2011 p. 2552.]

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)If the Court makes an order under subrule (2), it must, and if it dismisses an application for such an order, it may, make such case management directions under Order 4A as to the further conduct of the action as it considers just.

(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.

[Rule 21 amended in Gazette 28 Jul 2010 p. 3466.]

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.Collision between vessels, content etc. of Preliminary Act

(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 — 

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

(b)the date and time of the collision;

(c)the place of the collision;

(d)the direction and force of the wind;

(e)the state of the weather;

(f)the state, direction and force of the tidal or other current;

(g)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;

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

(i)the distance and bearing of the other vessel if and when her echo was first observed by radar;

(j)the distance, bearing and approximate heading of the other vessel when first seen;

(k)what light or combination of lights (if any) of the other vessel was first seen;

(l)what other lights or combination of lights (if any) of the other vessel were subsequently seen before the collision, and when;

(m)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;

(n)the parts of each vessel which first came into contact and the approximate angle between the 2 vessels at the moment of contact;

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

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

(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.

[Rule 23 amended in Gazette 28 Jun 2011 p. 2553‑4.]

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.Amending writ without leave

(1)Subject to subrule (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 by filing its amended writ before the closure.

[(2)deleted]

(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; or

(c)without prejudice to rule 3, an amendment of the statement of claim, if any, indorsed on the writ.

[Rule 1 amended in Gazette 28 Jul 2010 p. 3462; 28 Jun 2011 p. 2552.]

2.Amending memorandum of appearance

A defendant may not amend his memorandum of appearance without the leave of the Court.

3.Amending pleadings without leave

(1)A party may amend any of its pleadings, without the leave of the Court, by filing its amended pleading not later than 7 weeks before the date fixed for the start of the trial of the case.

(2)A party served with a pleading amended under subrule (1) may make any amendment needed to any of its pleadings as a consequence of the amended pleading, without the leave of the Court, by filing its amended pleading within 10 working days after the date on which it is served with the amended pleading.

(3)A party served with a pleading amended under subrule (1) or (2) may apply to the case manager for any amendment in the pleading to be struck out.

(4)A party’s application under subrule (3) must be made within 7 working days after the date on which the party is served with the amended pleading.

(5)If, on an application made under subrule (3), the case manager is satisfied that, had an application for leave to make the amendment in question been made under rule 5 at the date when the amended pleading was filed under this rule, leave to make the amendment or part of the amendment would have been refused, the manager must order the amendment or that part of it to be struck out.

(6)An order made on an application under this rule may be made on such terms as to costs as the case manager considers just.

[Rule 3 inserted in Gazette 28 Jul 2010 p. 3462-3.]

[4.Deleted in Gazette 28 Jul 2010 p. 3462.]

5.Amending writ or pleading with leave

(1)Subject to — 

(a)Order 18 rules 6, 7 and 8; and

(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 subrule (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 subrule if it thinks it just to do so.

(3)An amendment to correct the name of a party may be allowed under subrule (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 subrule (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 subrule (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; 28 Jun 2011 p. 2552.]

6.Amending 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.Amending 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 file the document, amended 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.

[Rule 8 amended in Gazette 28 Jul 2010 p. 3463.]

9.How amendments to be made

(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 subrule (1), and subject to any direction given under rule 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.

[Rule 9 amended in Gazette 24 Jan 1995 p. 272; 28 Jul 2010 p. 3463; 28 Jun 2011 p. 2552.]

10.Clerical errors etc., correcting (slip rule)

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.

11.Service of amended documents

An amended writ, pleading or other document that is filed under this Order must be served on each other party within one working day after it is filed unless the Court orders otherwise.

[Rule 11 inserted in Gazette 28 Jul 2010 p. 3463-4.]

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 to 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.Default of defence to 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.Default of defence to 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.Default of defence to 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.Default of defence to 2 or more claims in r. 2 to 5

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.Default of defence to 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 subrule (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 subrule (1) against more than one defendant, then, if one of the defendants makes default as mentioned in that subrule, the plaintiff may — 

(a)if his claim against the defendant in default is severable from his claim against the other defendants, apply under that subrule 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 subrule (1) must be by summons.

[Rule 7 amended in Gazette 15 Jun 1973 p. 2248; 28 Jun 2011 p. 2552.]

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 in case of doubt

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 in default

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.Withdrawing 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 etc. 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 subrule (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.

[Rule 2 amended in Gazette 28 Jun 2011 p. 2552.]

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 subrule (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; 28 Jun 2011 p. 2552.]

[10.Deleted in Gazette 5 Apr 1991 p. 1398.]

11.Intestate’s estate, Court may direct some payments 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 (Sch. 3)

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 Schedule 3.

[Rule 12 amended in Gazette 28 Jun 2011 p. 2554.]

Order 24A — Offer of compromise

[Heading inserted in Gazette 5 Apr 1991 p. 1398.]

1.Parties entitled to make offer

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 1 inserted in Gazette 4 Sep 2015 p. 3696.]

2.Application of this Order to counterclaims and third party notices

Where a party makes a claim by way of counterclaim or third party notice, this Order applies in relation to the proceeding on that claim as if —

(a)the party making the claim were the plaintiff; and

(b)the party against whom the claim is made were the defendant.

[Rule 2 inserted in Gazette 4 Sep 2015 p. 3696.]

3A.How to make 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 is to —

(a)be in writing; and

(b)bear a statement to the effect that the offer is made under this Order.

[Rule 3A inserted in Gazette 4 Sep 2015 p. 3696‑7.]

3.Time etc. for making, accepting etc. offer

(1)An offer may be made at any time before the time prescribed by subrule (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 subrule (3) or, if no time is specified, the expiration of 28 days after the offer is made; or

(b)the time prescribed by subrule (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 subrule (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 subrules (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; 28 Jun 2011 p. 2552‑3.]

4.Time for payment of sum offered

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.Withdrawing acceptance of offer

(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 subrule (2); and

(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; amended in Gazette 28 Jun 2011 p. 2552.]

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 another party in the proceedings has made a claim which is not the subject of the accepted offer, the Court may make such order or give such judgment under subrule (1), and make such order that the proceeding on that other party’s 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; 28 Jun 2011 p. 2552; 4 Sep 2015 p. 3697.]

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 subrule (1), that term shall be of no effect for any purpose under this Order.

(3)Subrules (4) and (5) apply to an offer which has not been accepted in the time prescribed by rule 3(5) if the Court is satisfied by the party who made the offer that the party was at all material times willing and able to comply with the terms of the offer.

(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, except as provided in subrule (5A).

[(4a)deleted]

(5A)If the Court is satisfied that the failure by the defendant to accept the offer made by the plaintiff was unreasonable, the plaintiff’s costs from the date on which the offer was made are to be taxed on an indemnity basis, unless the interests of justice require otherwise.

(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, except as provided in subrule (7A).

(6)For the purpose of subrule (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, except as provided in subrule (7A).

(7A)If the Court is satisfied that the failure by the plaintiff to accept the offer made by the defendant was unreasonable, the defendant’s costs are to be taxed on an indemnity basis, unless the interests of justice require otherwise.

(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 subrules (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 subrule (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)deleted]

[Rule 10 inserted in Gazette 5 Apr 1991 p. 1400‑1; amended in Gazette 28 Feb 1992 p. 996; 21 Feb 2007 p. 536; 28 Jun 2011 p. 2552‑3; 4 Sep 2015 p. 3697‑8.]

Order 25 — Security for costs

1.Factors that are not grounds for ordering security for costs

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 security for costs

Without limiting the generality of rule 1 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.

[Rule 2 amended in Gazette 28 Jun 2011 p. 2554.]

3.Court has 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.Term used: plaintiff

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.Terms used

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.]

1B.Documents not wholly discoverable

(1)If under this Order a party in a cause or matter is required to give discovery of a document —

(a)the party must discover the document even if it contains —

(i)information that is not related to a matter in question in the cause or matter; or

(ii)information that the party objects to producing,

as well as information relating to a matter in question in the cause or matter that the party may be required to produce; but

(b)if the party has possession, custody or power of the document, the party may edit the document to hide the information referred to in paragraph (a)(i) and (ii).

(2)If a party edits a document under subrule (1), the party must do the following —

(a)in Part 1B of its list of documents (Form No. 17) —

(i)list the document; and

(ii)identify the document as one that contains hidden information; and

(iii)state why the information is hidden; and

(iv)if the party objects to producing any of the hidden information, state the grounds for objecting;

and

(b)modify Form No. 17 for the purposes of complying with paragraph (a); and

(c)if an affidavit verifying the list of documents is required, modify Form No. 18 for the purposes of complying with paragraph (a).

(3)If a party edits a document under subrule (1), the party is not required —

(a)to produce the hidden information to another party; or

(b)to allow another party to inspect or copy the hidden information,

unless the Court orders otherwise.

[Rule 1B inserted in Gazette 28 Jul 2010 p. 3469-70.]

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 subrule (1) shall not be given without the leave of the Court.

(3)The statements in the Form No. 17 (list of documents) filed by a party giving discovery of documents must —

(a)be verified by an affidavit of a person listed in rule 4(4); or

(b)if the party requiring discovery, in its notice given under subrule (1), so consents, be certified as correct by a person listed in rule 4(4) or the party’s practitioner.

[Rule 1 amended in Gazette 28 Oct 1996 p. 5675; 28 Jul 2010 p. 3470; 28 Jun 2011 p. 2552.]

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 subrule (1) or (2) shall be given in accordance with subrules (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 subrule (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; amended in Gazette 28 Jun 2011 p. 2552‑3.]

[2A.Deleted in Gazette 28 Oct 1996 p. 5675.]

3.Determination of issue relevant to right to 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.List of documents and verifying affidavit, form, content and making of

(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 etc.

(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 subrule (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; 28 Jun 2011 p. 2552.]

6.Order for information as to 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 subrule (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; 28 Jun 2011 p. 2552.]

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 subrule (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; amended in Gazette 28 Jun 2011 p. 2552.]

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 subrule (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 subrule (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.

[Rule 9 amended in Gazette 28 Jun 2011 p. 2552.]

10.Order for production to 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.Order for production etc. 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 preparing 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.Inspection of copies 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.Public interest immunity not affected

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 subrule (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 subrule (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; 28 Jun 2011 p. 2552.]

[15A.Deleted in Gazette 28 Jul 2010 p. 3471.]

16A.Certificate by practitioner

The practitioner of a party giving discovery must —

(a)sign a certificate addressed to the Court that —

(i)states that the duty of discovery has been fully explained to the party; and

(ii)if the party is a corporation, identifies the individual, or individuals, to whom the duty was explained;

and

(b)file the certificate when or immediately after the party’s list of documents is served.

[Rule 16A inserted in Gazette 28 Jul 2010 p. 3471.]

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.Terms used

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 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 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.]

8.Certificate by practitioner for non‑party or potential party

(1)This rule applies to these practitioners —

(a)the practitioner (if any) who drafts the list of documents, or the affidavit verifying the list, for a non‑party who has been ordered under rule 3 or 5 to give discovery;

(b)the practitioner (if any) who drafts the list of documents, or the affidavit verifying the list, for a potential party who has been ordered under rule 4 to give discovery.

(2)This rule does not limit the operation of rule 6(2).

(3)A practitioner to whom this rule applies must —

(a)sign a certificate addressed to the Court that —

(i)states that the duty of discovery has been fully explained to the non‑party or potential party (as the case requires); and

(ii)if that party is a corporation, identifies the individual, or individuals, to whom the duty was explained;

and

(b)file the certificate when or immediately after the list of documents is served.

[Rule 8 inserted in Gazette 28 Jul 2010 p. 3471-2.]

Order 27 — Interrogatories

1.Notice of and answers to 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)deleted]

(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; 28 Jul 2010 p. 3472.]

2.Answers, time for and manner of giving

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.Interrogatories given to 2 or more parties etc., who has 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.Content of answers

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 objecting to answer

(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.Answers, who can make

(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 subrule (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 subrule (2) a party to which subrule (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 subrule (1)(b) or (c), as the case may be, and has knowledge of the facts.

[Rule 6 amended in Gazette 19 Apr 2005 p. 1298; 28 Jun 2011 p. 2552 and 2554.]

7.Failing to answer or to answer sufficiently

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 under r. 7

(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 subrule (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; 28 Jun 2011 p. 2552.]

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.Revoking and varying 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 a party

(1)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.

(2A)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.

(2B)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 subrule (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.

[Rule 1 amended in Gazette 28 Jun 2011 p. 2552 and 2554.]

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  Directions

[Heading inserted in Gazette 28 Jul 2010 p. 3464.]

1.Summons for directions

(1)Any party in a cause or matter may apply for directions —

(a)at any time before entry for trial; or

(b)with the leave of the Court, after entry for trial.

(2)If the defendant in a cause or matter is required to appear in the proceedings, an application for directions cannot be made before the defendant has entered an appearance.

(3)An application for directions must —

(a)be made by summons; and

(b)specify the directions or orders sought.

(4)So far as practicable, a party appl