Local Court Rules 1961

 

Local Court Rules 1961

CONTENTS

Order 1 — Preliminary

1.Citation and commencement1

2.2Interpretation1

Order 2 — Offices and officers

1. 2Office opening hours3

2. 2Clerk to keep books and issue process3

3. 2Transmission of summons for service by bailiff of foreign court3

4. 2Copies of documents, how made4

5. 2Searches and payment out of court4

5A.Clerk to provide searchable information to approved recipients4

6. 2Acknowledgment of payments and deposits5

7. 2No officer to act as agent to parties5

8. 2Absence of bailiff from court5

9. 2Bailiff to keep books5

10. 2Attendance at office of clerk6

11. 2Service of process6

12. 2Return of copy of judgment summons served by bailiff of foreign court6

13. 2Where return of service to home court is not made, foreign bailiff may be ordered to pay costs6

14. 2Execution and entries of warrants and orders7

15. 2Procedure where bailiff required to hold moneys under Bankruptcy Act7

16. 2Endorsement of levy — moneys to be paid in within 3 days8

17. 2Notice of withdrawal on receipt of notice of sequestration8

18. 2Non-execution of warrant by bailiff of foreign court8

19. 2Duties of bailiff as to sale of property9

20. 2Taking possession of goods9

21. 2Where possession ordered to be taken until security given9

22. 2Bailiff to make return of arrest10

Order 3 — Parties

1. 2Persons may be joined as plaintiffs who claim relief jointly, severally, or in the alternative11

2. 2Persons may be joined as defendants against whom relief claimed jointly, severally, or in the alternative11

3. 2All defendants joined need not be interested in all the relief prayed for11

4. 2All or any of the persons liable under any one contract may be joined12

5. 2Where plaintiff in doubt from whom he is entitled to redress12

6. 2Trustees, executors, and others may sue or be sued without joining parties beneficially interested12

7. 2Where parties numerous, one or more may sue or be sued or defend for the benefit of all12

8. 2Where defendant desires to defend on behalf of others13

9. 2Infants13

10. 2Appointment of guardian13

11. 2Appointment of guardian ad litem for infant or person of unsound mind15

12. 2Entry of appointment on summons, etc.16

13. 2Limitation of liability of guardian for costs17

14. 2Power to set aside judgment against infant or person of unsound mind where no guardian appointed17

15. 2Infants and others suing by next friends17

16. 2Persons of unsound mind18

17. 2Persons under disability — how consent can be given18

19. 2Partners19

Order 4 — Joinder of causes of action

1. 2What claims may be joined with action for recovery of possession of land20

2. 2As to joinder of claims by trustee in bankruptcy20

3. 2Joinder of causes of action generally20

4. 2Claims by or against husband and wife20

5. 2Claims by or against executor or administrator21

6. 2Joint and separate claims by plaintiffs21

7. 2Separate trials may be ordered21

Order 5 — Commencement of action, claim and summons

1. 2Actions to be commenced by plaint22

2. 2Trials by agreement under section 3922

3. 2Form of plaints22

4. 2Action against company23

5. 2Particulars of parties required in plaint23

6. 2Action by or against representatives23

7. 2Action by assignee of debt23

9. Time to be limited for notice of defence24

10. 2Time when more than one defendant24

11. 2Endorsement of fees25

12. 2Security for or undertaking as to costs, where plaintiff not resident in Commonwealth25

13. 2Security by person temporarily resident in Commonwealth25

14. 2Service by plaintiff or his solicitor25

15. 2Particulars of claim26

16. 2Abandonment of excess26

17. 2Particulars in cases of account27

18. 2Particulars in actions for recovery of possession of land27

19. 2Particulars where more than one cause of action27

20. 2Further particulars28

21. 2Fraction of a cent28

22. 2Signature to particulars by solicitor or authorised clerk28

Order 6 — Service

1. 2No service outside British Commonwealth of Nations30

2. 2Leave for service outside Commonwealth30

3. 2Fixing time for defence30

4. 2Non‑personal service30

5. 2Proof of service by post31

6. 2Proof of service31

7. 2Rules applicable to other process31

8. 2Time for service31

9. 2Service on solicitor32

10. 2Service on infant32

11. 2Service on insane person or patient32

12. 2Service on partners32

13. 2Service where person carries on business in name other than his own33

15. 2Service where defendant on board ship33

16. 2Service on soldier, marine or airman33

17. 2Service on prisoner33

18. 2Service on miner34

19. 2Service where defendant employed in public asylum or prison34

20. 2Where defendant keeps his house closed34

21. 2Service in case of vacant possession34

22. 2Service where violence threatened34

23. 2Service of summons on corporation etc.35

24. 2Service of summons in proceedings to recover taxes35

25. 2Where leave given to proceed as if personal service effected35

26. 2Substituted service, and notice in lieu of service36

27. 2Magistrate may inquire into service36

28. 2Notice of service or non‑service36

29. 2Time allowed for service of summons37

Order 7 — Objections to jurisdiction — transfer — of actions

1. 2Notice of objection to jurisdiction38

2. 2Affidavit justifying choice of court38

3. 2Form of affidavit38

4. 2Transfer of action38

5. 2Notice to plaintiff when more than one objection39

Order 8 — Consolidation of actions or stay of proceedings — transfer

1. 2Consolidation of pending actions and matters40

2. 2Magistrate may impose terms40

3. 2Transfer of actions commenced in different courts40

4. 2Application for transfer — costs before or occasioned by transfer — transmission of certified copy of proceedings40

5. 2Filing order for change of venue41

6. 2Payment of costs in certain cases by party obtaining change of venue41

7. 2Transfer of proceedings41

7A. 2Action for small debt ordered to be dealt with under general provisions42

8. 2Notice of trial42

9. 2Changing venue to a place other than a court42

Order 9 — Discontinuance, confession, admission, and payment into or out of court

1. 2Discontinuance43

2. 2On discontinuance costs may be taxed43

3. 2Confessions under section 5043

4. 2Admission by letter addressed to court44

5. 2Consent judgments under sections 50 and 5144

6. 2Admission of truth of plaintiff’s statement44

7. 2Admission by any party45

8. 2Payment into court45

9. 2Acceptance of amount paid in in satisfaction of claim46

10. 2Payment by plaintiff in answer to counterclaim48

11. 2Fees and costs on payment of amount admitted after deducting set‑off or counterclaim48

12. 2Acceptance of money paid into court under defence of tender — costs48

13. 2Money paid in to abide trial48

14. 2Payment to plaintiff instead of into court49

15. 2Payment out where plaintiff under disability49

16. 2Transmission of money from one court to another50

Order 10 — Defence, pre‑trial conference, notice of trial, and default of defence

1. 2Notice of defence51

1A. 2Claims referred to Small Claims Tribunal51

2. 2Notice of trial — dismissal for want of listing52

2A. 2Pre‑trial conference53

3. 2Service of notices by post, telegram or personal delivery53

4. 2Default of defence53

5. 2Notice of assessment of damages54

6. 2Time for which notice to be screened for defendant in default54

7. 2Where plaintiff sues on behalf of others54

8. 2Set‑off and counterclaim54

9. 2Objection by plaintiff under section 34(2)54

10. 2In action for recovery of possession, any person not named as a defendant may, by leave, appear55

11. 2In action for recovery of possession, defendant may give notice that he will limit his defence to part of the property56

12. 2Where one of several persons jointly answerable is sued56

13. 2Misjoinder of plaintiffs not to defeat counterclaim56

14. 2Disclaimer, admission, and other statements by defendant56

15. 2Notice to be given of special defence57

16. 2Set‑off or counterclaim57

17. 2Infancy57

19. 2Statute of Frauds58

20. 2Statute of limitations58

21. 2Bankruptcy58

22. 2Equitable relief58

23. 2Tender58

24. 2Notice of defence to counterclaim59

25. 2Where counterclaim affects other persons59

Order 11 — Affidavits

1. 2Form of affidavits60

2. 2Sources of knowledge to be stated60

3. 2How affidavits to be intituled60

4. 2Affidavits to show on whose behalf filed60

5. 2Costs of affidavits when disallowed60

6. 2Affidavits made by 2 or more deponents61

7. 2Filing of affidavits61

8. 2Affidavits not to be filed if sworn before party’s solicitor61

9. 2Erasure, blotting, interlineation etc. in affidavits61

10.Illiterate or blind deponent62

11. 2Use of defective affidavit62

12. 2Affidavits of service62

13. 2Notice of rejection of imperfect affidavits or documents62

Order 12 — Proceedings in chambers

1. 2Application made to clerk63

2. 2Affidavits first filed63

3. 2Form of applications63

4. 2When summons returnable63

5. 2Magistrate may dispose of business in chambers63

6. 2Summons to be signed and sealed64

7. 2Grounds of application64

8. 2Copies of affidavits to be served64

9. 2Orders may be absolute or on terms64

10. 2Costs of applications in chambers64

11. 2Special applications in chambers65

Order 13 — Claim for contribution or indemnity

1. 2Notice of claim to contribution or indemnity — issue and service66

2. 2Third party when served may act as if original defendant67

3. 2Appearance of third party — default of appearance67

4. 2Proceedings on default of the appearance by third party68

5. 2Application for directions — what directions may be given68

6. 2Costs69

Order 14 — Interlocutory and interim orders and proceedings

1. 2Where defence is an alleged right to be relieved of a prima facie case of liability70

2. 2Order for sale of perishable articles etc.70

3. 2Order for detention, preservation etc.70

4. 2Order for clerk to take deposition of person ordered to weigh, inspect etc.71

5. 2Order for inquiries or accounts71

6. 2Application for interlocutory injunction or order71

7. 2Where specific property other than land is sought to be recovered, but is claimed to be retained under lien or as security72

8. 2Settlement, signing, sealing, filing, and service of orders under preceding rules72

9. 2Deposit by plaintiff may be ordered where defendant resident more than 32 kilometres from court shows defence on merits73

10. 2Application for order that loss of bill shall not be set up73

11. 2Practice on interlocutory applications74

12. 2Clerk may refer applications to magistrate74

13. 2Postponement of trial pending interlocutory proceedings74

Order 15 — Security

1. 2Security by bond75

2. 2Affidavit of sufficiency75

3. 2Execution of bond75

4. 2Deposit in lieu of bond75

5. 2Bond to be deposited75

6. 2Officer of court not to be surety75

Order 16 — Amendment

1. 2Change or addition of plaintiff76

2. 2Action not to be defeated by misjoinder or nonjoinder of parties76

3. 2Where too few persons made plaintiffs77

4. 2Change of defendant77

5. 2Where party wrongly sues or is sued in representative character77

6. 2Where party ought to have sued or been sued in representative character78

7. 2Amendment of proceedings78

8. 2Where all defendants have not been served78

9. 2Notice to an added or substituted defendant78

10. 2Amendment of particulars and notice of defence79

11. 2Abandonment of part of claim79

12. 2Powers of clerk as to amendment when acting under sections 76 and 7779

13. 2Amendment of particulars where plaintiff entitled to more than amount claimed79

14. 2Where plaintiff in case of account found entitled to more than $25 00080

15. 2Correction of clerical mistakes and omissions80

Order 17 — Discovery and inspection

1. 2Discovery of documents81

2. 2Objection to discover documents81

3. 2Production of documents81

4. 2Notice under section 6781

5. 2Time within which inspection to be given — place of inspection82

6. 2Order for inspection82

7. 2Actions against or by sheriff or bailiff83

8. 2Verified copies83

9. 2Privilege83

10. 2Inquiry as to present or past possession of specified documents83

11. 2Premature discovery84

12. 2Order to apply to infants84

Order 18 — Interrogatories

1. 2Discovery by interrogatories85

2. 2Grounds of objection to answering interrogatories85

3. 2Voluntary compliance with request85

4. 2Compulsory compliance — application for order and proceedings thereon86

5. 2Onus of proof where alleged evasive or insufficient answers to interrogatories87

6. 2Contested claim of privilege87

7. 2Statements and affidavits — by whom made87

8. 2Effect of non‑compliance with order88

9. 2Order for interrogatories may be served on solicitor88

10. 2Solicitor neglecting to give notice to client may be liable88

11. 2Use in evidence of answers to interrogatories88

12. 2Actions against or by sheriff or bailiff89

13. 2Costs of improper interrogatories89

14. 2Costs on order and security for costs89

15. 2Payment out of amount paid in as security89

16. 2Order to apply to infants etc.90

Order 19 — Change of parties by death, etc.

1. 2No abatement caused by death etc.91

2. 2Order to carry on proceedings91

3. 2Form and service of order91

4. 2Application for discharge of order92

5. 2Provision for cases in which person entitled to proceed does not do so92

6. 2Alteration of records after addition of party92

7. 2Appointment of guardians93

8. 2Persons under disability93

Order 20 — Evidence

1. 2Evidence to be taken orally94

2. 2Power to order particular facts to be proved by affidavit, or witnesses to be examined before examiner94

3. 2Summonses to witnesses and service94

4. 2Witnesses may require payment before giving evidence94

5. 2Time and mode of service95

5A. 2Enforcement of summons95

6. 2When witness does not produce documents, order for production may be made95

7. 2Production of papers on summons by head of Government department etc.96

8. 2Admission of facts or documents97

9. 2Notice to admit or produce97

10. 2Costs of notice to admit or produce98

11. 2Documents produced from proper custody to be read without proof unless objected to98

12. 2Where it is desired to use an affidavit, notice may be given — costs of objection98

13. 2Evidence taken after trial98

14. 2Practice as to taking evidence at any stage of action or matter99

15. 2Affidavits are evidence of persons using them99

16. 2Expenses of persons attending before examiner99

17. 2How depositions taken99

18. 2Failure to comply with summons, or refusal to be sworn or answer100

19. 2Objection to answer100

20. 2Witness may be ordered to pay costs100

21. 2Filing of depositions100

22. 2Special report by examiner100

23. 2Power to administer oaths101

Order 21 — Arbitration

1. 2Arbitration102

Order 22 — Trial

1. 2Actions to be heard in order, with exception103

2. 2Right to begin and addresses to court at hearings and trials103

3. 2Magistrate may request statement of defence before hearing evidence103

4. 2Where plaintiff does not appear103

5. 2Judgment on counterclaim where plaintiff does not appear104

6. 2Restoring case struck out for non‑appearance of plaintiff104

7. 2Subsequent action after non‑suit or striking out104

8. 2Action pending in another court for same cause104

9. 2Disallowance of vexatious questions in cross‑examination105

10. 2General jurisdiction of magistrate on trial of action105

11. 2Application for injunction105

12. 2Inspection of property by magistrate106

13. 2Absent parties may be added on hearing106

14. 2Counterclaim where action stayed, discontinued, or dismissed106

15. 2Counter or other claim may be ordered to be tried by independent action106

16. 2When a person brought in does not appear at the trial106

17. 2Judgment may be given for balance found due to defendant107

18. 2Leave to clerk to exercise jurisdiction107

19. 2When clerk authorised to hear disputed claims107

20. 2Postponement of trial on joint application of parties107

21. 2Postponement of trial by magistrate107

22. 2Adjournment to enable party to comply with rules108

Order 23 — Judgments and orders

1. 2Entries to be made in minute book109

2. 2Form of ordinary judgment109

4. 2Certain orders need not be drawn up or served109

5. 2Orders directed to be drawn up by magistrate — time to be stated for doing any act ordered to be done — memorandum to be endorsed109

6. 2Purposes for which certificate of judgment required to be stated110

7. 2How money payable under ordinary judgment to be payable110

8. 2Fresh order for payment by instalments on application of judgment creditor110

9. 2Fresh order for payment of sum not exceeding $100 on application of judgment debtor111

10. 2Fresh order for payment in one sum or by increased instalments on application of judgment creditor112

11. 2Assessment of value of goods112

Order 24 — Accounts

1. 2How accounts to be taken113

2. 2Clerk to appoint time and place for taking account113

3. 2Hearing before clerk113

4. 2Accounts to be verified by affidavit113

5. 2Vouchers to be produced114

6. 2Clerk’s certificate114

7. 2Books of account to be prima facie evidence114

Order 25 — Enforcement of judgments and orders

Division 1 — By warrants of execution

1. 2Orders enforceable like judgments115

2. 2Enforcing judgment or order against corporation115

4. 2Examination where difficulty arises in execution115

5. 2Date and duration of warrants of execution115

6. 2Applicant to furnish praecipe116

7. 2Where default made, execution may issue116

8. 2Separate executions for money recovered and for costs116

9. 2Execution may issue within 6 years without leave117

10. 2Execution on judgment against a firm117

11. 2Application for leave to issue execution after six years or on change of parties after judgment etc. — order thereon117

12. 2Application to stay execution118

13. 2Notice of execution to be left with debtor119

14. 2Concurrent warrants119

15. 2Cost of warrants119

16. 2Possession fee120

17. 2Sale120

18. 2Requirements where land taken in execution121

19. 2Inventory and notice of sale of goods removed under execution122

20. 2Account of sale under execution122

21. 2Part payment after issue of warrant of execution123

22. 2Notice of sale124

Division 2 — Transmission of proceeds of warrants, from foreign courts

1. 2Transmission of warrants to be executed by bailiff of foreign court124

2. 2Accounting for and transmission of proceeds levied124

3. 2Payment into foreign court under order of commitment125

Order 26 — Enforcement of judgments and orders by judgment summons

1. 2No commitment except after judgment summons — judgment summons to be served personally126

2. 2Praecipe for summons126

3. 2Summons for 2 or more defendants126

4. 2Issue of summons against debtor without leave126

5. 2Application for leave for judgment summons127

6. 2Judgment summons on judgment against a firm etc.128

7. 2Where judgment summons applied for at a court in which judgment was not obtained128

8. 2Where judgment summons required on judgment of a court other than a local court129

9. 2Issue and service of judgment summons129

10. 2Where judgment debtor about to remove129

11. 2Time allowed for service of judgment summons130

12. 2Summons of judgment debtor and witnesses to prove means — when expenses paid to judgment debtor may be allowed — arrest of judgment debtor130

13. 2Evidence by affidavit where creditor or debtor resides at a distance from court issuing judgment summons131

13A. 2Consent affidavit under judgment summons131

14. 2On issue of judgment summons, any warrant of execution issued to be lodged in court132

15.Minute that certificate of judgment has been given to be made — restriction on proceedings in court issuing certificate132

16. 2Where order of commitment made or order altered by another court — proceedings to be transferred to and continued in that court133

17. 2Where order of commitment sent to a foreign court133

18. 2No commitment after bankruptcy or administration order in respect of debt provable thereunder134

19. 2Commitment not to be enforced where sequestration or administration order made after order of commitment134

20. 2Discharge of judgment debtor on filing affidavit as to bankruptcy etc.135

21. 2Hearing, adjournment and order on judgment summons135

22. 2Suspension of order of commitment135

23. 2Payments to be made into court136

24. 2Form, date, and duration of order of commitment136

25. 2Power to suspend order for payment of future instalments during suspension of order of commitment in respect of past instalments136

26. 2Application by party to vary order of commitment137

27. 2Payment on arrest138

28. 2Part payment after issue of order of commitment138

29. 2Payment after debtor lodged in gaol139

30. 2Part‑payment after debtor lodged in gaol140

31. 2Discharge of prisoner on request of judgment creditor140

32. 2Certificate of payment141

33. 2Costs on default of appearance of judgment creditor141

34. 2Where no costs are to be allowed on judgment summons141

35. 2Provisions as to amount for which debtor has been imprisoned, where fresh order made on judgment summons or under Order 23, rule 9, and as to subsequent judgment summons under such order141

36. 2Costs of abortive execution not to be included in judgment summons, or fresh order under Order 23, rule 8, 9 or 10142

Order 27 — Further methods of enforcement of judgments and orders

1. 2Proceedings under section 155143

2. 2Enforcement of order for discovery — warrant of attachment143

3. 2Discharge of person in custody by magistrate143

4. 2Recovery of land or possession to be enforced by warrant of possession144

5. 2Enforcement of judgment for delivery of goods — warrant of delivery144

6. 2Warrant may issue without assessment of value144

7. 2Separate warrants for damages and costs144

8. 2Option to enforce delivery or payment of value144

9. 2Certifying assessment to bailiff145

10. 2Application of rules relating to execution145

11. 2Recovery of value and damages and costs by warrant of execution145

12. 2Wilful disobedience of judgment for delivery of goods145

13. 2Examination of debtor when judgment etc. for recovery of money145

13A.Court may impound documents147

14.Costs under rule 13147

15. 2Impounded documents147

Order 28 — Attachment of debts

1. 2Proceedings against garnishee148

2. 2Where garnishee resides at a distance from court148

3. 2Service of garnishee summons148

4. 2Payment into court by garnishee149

5. 2Payment out of court of money paid in by garnishee150

6. 2Order on return day, if garnishee does not appear or dispute liability150

7. 2Certificate where garnishee sued in court other than that in which judgment obtained151

8. 2Costs151

9. 2Magistrate may refuse to interfere151

10. 2Application by judgment creditor as to money paid into court under judgment or order obtained by debtor against third person151

11. 2Attachment of debts owing from a firm152

Order 29 — Appointment of receivers

1. 2Receiver’s security and allowance153

2. 2Fixing days for receiver to pass accounts and pay balances153

3. 2Form of receiver’s accounts153

4. 2Consequences of default by receiver154

5. 2Appointment of receiver by way of equitable execution154

6. 2Bailiff may be appointed154

Order 30 — Interpleader

1. 2Notice of claim to execution creditor155

2. 2Order for possession fees where claim admitted155

3. 2Power to make order protecting bailiff from action by claimant, where execution creditor admits claim before interpleader summons issued155

4. 2Issue of summons where the execution creditor does not admit claim156

5. 2Proceedings generally156

6. 2Claimant to lodge particulars and grounds of claim156

7. 2Bailiff’s fees157

8. 2Power to delay sale157

9. 2Interpleader summons157

10. 2From what court issued157

11. 2Magistrate may direct sale of goods claimed under bill of sale etc.158

12. 2Order on interpleader158

13. 2Interpleader in action by assignee, where assignor disputes assignment, or in action for debt, chose in action, or chattel, where defendant has notice of conflicting claims158

Order 31 — Proceedings by and against executors and administrators

1. 2Costs where plaintiff fails162

2. 2Costs on non‑appearance162

3. 2Waste of assets162

4. 2Judgment where waste charged162

5. 2Judgment where representation admitted, but demand denied163

6. 2Judgment where representation admitted, and demand denied but proved, and administration alleged and proved163

7. 2Judgment in like case where administration not proved163

8. 2Judgment where representation and demand admitted, and administration alleged and proved164

9. 2Judgment in like case where administration not proved, and no other defence established164

10. 2Proceedings after judgment on assets, quando acciderint164

11. 2Payment into court on defendant’s admission of demand and of assets165

12. 2Judgment in other cases165

Order 32 — New trial

1. 2Application for new trial166

2. 2Affidavit in support166

3. 2When new trial not granted167

4. 2When new trial may be granted167

Order 32A — Practice and procedure relating to warrants under the Fines, Penalties and Infringement Notices Enforcement Act 1994

1.Interpretation168

2.Examination in aid of seizure168

3.Claims to property seized169

Order 33 — Appeals

1. 2Order of Supreme Court to be filed170

2. 2New trial170

3. 2Proceedings on judgment of Supreme Court170

Order 34 — Actions or matters remitted from or transferred to the Supreme Court

1. 2Where action or matter remitted from Supreme Court171

2. 2Order to be filed — proceedings in local court171

3. 2Defendant to proceed as if action originally brought in local court171

4. 2Special notice in action for libel or slander172

5. 2Transmission of documents etc. to Supreme Court by clerk after order of transfer172

Order 35 — Replevin

1. 2No other cause of action to be joined173

2. 2Particulars173

3. 2Mode of trial173

4. 2Where defendant succeeds in action where distress is for a sum of money173

5. 2Where defendant entitled to a return in damage feasant173

6. 2Where defendant succeeds in other cases174

Order 36 — Fines. Neglect or misconduct of officers. Committal for contempt. Enforcement of fines

1. 2Summons for neglect175

2. 2Order175

3. 2Order imposing fine on witness175

4. 2Committal or fine for contempt of court176

5. 2Report by clerk to magistrate if fine not paid176

Order 37 — Fees, costs, and allowance to witnesses

1. 2Generally costs to be awarded to successful party177

2. 2Conduct disentitling successful party to costs177

3. 2Unnecessary costs177

4. 2Cost where counterclaim raised and tried177

5. 2Where plaintiff recovers less than claim178

6. 2Scales on which costs are to be taxed178

6A. 2Court may order increased costs179

6B. 2Exceptional award of costs in the Small Disputes Division179

7. 2Costs may be fixed at trial180

8. 2Entry of costs on summons180

9. 2Allowance of costs without taxation180

10. 2When costs to be taxed — delivery of bill180

11. 2Notice of taxation181

12. 2Forms of bills of costs181

13. 2Taxing costs on bill as taxed181

14. 2Party dissatisfied to make objections in writing — clerk may obtain directions181

15. 2Review of taxation upon objections182

16. 2Costs of objection to jurisdiction182

17. 2How order for particular costs to be made and obtained182

18. 2Actions for recovery of possession182

19. 2Costs on judgment for delivery of goods183

20. 2Jurisdiction by consent183

21. 2Interpleader proceedings183

22. 2Taxation of costs ordered to be paid by or to third party184

23. 2Fees where party recovers less than he claims184

24. 2No costs allowed if not sanctioned by scales184

26. 2Fee for service of summons184

27. 2Discretion of clerk184

28. 2When costs unnecessarily incurred185

29. 2Discretionary fees and allowances185

30. 2Costs incurred before transfer of action185

31. 2Where separate judgments against defendants185

32. 2Costs of solicitor appearing in person as plaintiff or defendant186

34. 2Folio186

35. 2Costs of persons in fiduciary position etc.186

36. 2Disallowance of costs of improper, vexatious, or unnecessary matter in documents or proceedings186

37. 2Set‑off of costs187

38. 2Allowances to witnesses for attendance187

39. 2Travelling expenses187

40. 2When attending in more than one case187

41. 2Costs of witnesses not summoned188

42. 2Compensation to seamen188

43. 2Allowances to expert or scientific witnesses188

44. 2Allowances for proof and costs of plans etc.188

45. 2Taxation as between solicitor and client189

46. 2Scale applicable to taxation as between solicitor and client189

47. 2Application for review of taxation by magistrate189

48. 2Fees189

49. 2Recovery of fees paid190

Order 38 — General provisions

1. 2Party may act by solicitor191

2. 2Service of notices etc. where no mode of service prescribed191

3. 2Service by or upon solicitor acting for party191

3A. 2Service at a document exchange192

4. 2Solicitor may give notice that he is acting — service by or on such solicitor — change of solicitor192

5. 2Practice on service by solicitor193

6. 2No notice of employment of legal practitioner required194

7. 2Enlargement or abridgement of time194

8. 2Filing of documents and copies for service194

9. 2Sealing of documents194

10. 2Notices to be in writing194

11. 2Form of notices195

12. 2Computations of periods not exceeding 48 hours195

13. 2When time for doing any act expires on day when offices are closed195

15. 2Transmission of notices etc. by post195

16. 2Notices by post delivered after office hours195

17. 2Use of forms in Appendix — where no forms prescribed196

18. 2Rules and forms to be adhered to196

19. 2Non‑compliance with rules not to render proceedings void196

20. 2Application to set aside proceedings for irregularity196

21. 2Duplicate of warrant etc. — lost or destroyed197

22. 2Duplicate summons may be issued197

23. 2Service of telegram197

24. 2Designation of local courts197

25. 2Service by post197

26. 2Change of address for service198

Schedule199

Appendix199

Part I199

1 — General form of heading and conclusion of all notices and admissions199

2 — General form of heading and conclusion of judgments and orders200

3 — General form of heading and conclusion of all warrants and summonses for enforcement of a judgment201

4 — General form of heading and conclusion of affidavits202

5 — Memorandum to be placed at foot of summons and warrant202

6 — Plaint in personal action203

6A — Plaint in action for a small debt203

7 — Affidavit justifying a plaintiff’s choice of court204

8 — Notice transferring action under section 36a205

9 — Notice to plaintiff of objection to jurisdiction by 2 or more defendants206

10 — Agreement to give jurisdiction to a Local Court207

11 — Agreement not to appeal207

12 — Undertaking by solicitor to be responsible for costs208

13 — Undertaking by next friend of infant to be responsible for defendant’s costs208

14 — Summons209

14A — Summons in action for a small debt Western Australia212

15 — Leave to serve summons outside the Commonwealth216

16 — Notice by plaintiff of consent to accept instalments216

17 — Notice of non‑service of summons217

18 — Notice of service or non‑service of process other than summons on a plaint218

19 — Certificate of service219

20 — Certificate of service by registered letter220

21 — Affidavit of service at abode or place of business of defendant221

22 — General form of certificate of service and affidavit of service222

23 — Order for substituted service223

24 — Substituted service — notice by advertisement223

25 — Affidavit on application on behalf of infant or person of unsound mind for appointment of guardian ad litem224

26 — Order appointing guardian ad litem225

27 — Notice to plaintiff of appointment of guardian ad litem225

28 — Notice to plaintiff where no application made on behalf of infant or person of unsound mind for appointment of guardian ad litem226

29 — Application by plaintiff for appointment of guardian ad litem to defendant who is an infant or a person of unsound mind227

30 — Affidavit in support of application by plaintiff for appointment of guardian ad litem to defendant228

31 — Order appointing guardian ad litem on application of plaintiff229

32 — Order appointing guardian ad litem named by infant defendant appearing at the trial230

33 — Order appointing guardian ad litem of infant defendant appearing at the trial and not naming a guardian230

34 — Order for consolidation231

35 — Undertaking by defendant applying for stay of proceedings232

36 — Order to stay proceedings233

37 — Notice to other plaintiffs of judgment in selected action234

38 — Notice to be sent to clerk of court to which action transferred by judge235

39 — Notice of discontinuance of action235

40 — Order for costs against plaintiff on discontinuance236

41 — Confession of debt under section 50236

42 — Notice to plaintiff of confession of debt under section 50237

43 — Notice to plaintiff of confession of part of debt under section 50237

44 — Agreement as to debt under section 50237

45 — Defendant’s admission238

46 — Notice of payment of part of claim into court239

47 — Notice of payment into court with denial of liability240

48 — Order against defendant paying money into court or to plaintiff for payment of further costs241

49 — Notice of acceptance of sum paid into court241

50 — Notice of entry of intention to defend242

50A — Notice of entry of small claims certificate Western Australia243

50B — Certificate of readiness243

50C — Request for pre‑trial conference244

50D — Notice of pre‑trial conference244

51 — Application to list action for trial (or assessment of damages)245

51A — Requirement to furnish particulars Western Australia246

52 — Notice of trial247

52A — Notice of trial under section 38B248

53 — Praecipe for entry of judgment249

54 — Notice of special defence250

55 — Notice of set‑off or counterclaim250

56 — Notice of objection to jurisdiction to try counterclaim251

57 — Notice by defendant to third party252

58 — Notice to plaintiff to deposit sum in court under Order 14, rule 9253

59 — Notice to defendant of deposit under Order 14, rule 9, having been made, or not having been made253

60 — Notice to defendant of non‑sufficiency of affidavit under Order 14, rule 9254

61 — Interlocutory or chamber summons254

62 — Order for name to be added255

63 — Notice to parties whose names are added as defendants255

64 — Order for defendant to defend on behalf of others having the same interest256

65 — Notice to plaintiff that defendant defends on behalf of others256

66 — Notice to persons on whose behalf defendant has obtained leave to defend257

67 — Order for affidavit as to documents257

68 — Affidavit as to documents258

69 — Order to produce documents for inspection259

70 — Notice to produce documents for inspection259

71 — Notice to inspect documents260

72 — Notice to admit and inspect261

73 — Notice to produce262

74 — Notice to admit facts262

75 — Admission of facts, pursuant to notice263

76 — Affidavit of signature to admission, under Order 20, rule 9264

77 — Notice of intention to use affidavit264

78 — Order to continue proceedings against a new party265

79 — Order to compel the person entitled to proceed to proceed with action266

80 — Summons to witness266

81 — Order under section 63 of the Local Courts Act 1904, fining a witness for non‑attendance267

82 — Praecipe for bench/chamber warrant to arrest witness268

83 — Warrant to arrest witness under section 64 of the Act269

84 — Affidavit in support of application for de bene esse examination270

85 — Order for examination of witness de bene esse270

86 — Form of jurat271

87 — Form of jurat when deponent illiterate or blind271

88 — Form of jurat when affidavit sworn through interpreter271

89 — Notice by clerk rejecting affidavit272

90 — Order of reference272

91 — Precedent for award on reference273

92 — Order for costs to defendant where plaintiff does not appear274

93 — Judgment for defendant, or of non‑suit274

94 — Judgment for plaintiff275

95 — Judgment where a counterclaim has been made276

96 — Judgment for delivery of goods277

97 — Praecipe for certified copy of judgment order and other proceedings278

98 — Certified copy of judgment, order and other proceedings279

99 — Notice to plaintiff of payment into court under judgment or order280

100 — Order to proceed after death of plaintiff after judgment, where such order affects more actions than one281

101 — Order to proceed after change of interest by assignment or otherwise after judgment, where such order affects more actions than one282

102 — Praecipe for warrant of execution283

103 — Notice to be sent with all warrants of execution against goods and land284

104 — Warrant of execution against the goods and land of execution debtor286

106 — Warrant to clerk of foreign court288

107 — Bailiff’s return to warrant289

108 — Particulars and conditions of sale of land under warrant of execution291

109 — Notice of application for sale of goods otherwise than by auction293

110 — Notice of non‑execution of warrant or order of commitment293

111 — Notice of return to warrant of execution294

112 — Notice of sequestration order294

113 — Application for stay of warrant of execution295

114 — Interim order for stay of warrant of execution295

115 — Chamber application for stay of execution296

116 — Order for stay of Warrant of Execution296

117 — Praecipe for Judgment Summons297

118 — Affidavit for leave to issue judgment summons against defendant in certain cases299

119 — Judgment summons300

119A — Consent affidavit under judgment summons301

120 — Affidavit where judgment summons is sought on a judgment or order of a court other than a Local Court304

121 — Praecipe for listing of an adjourned judgment summons305

122 — Summons for attendance of debtor on adjourned judgment summons306

123 — Application for variation of order made on judgment summons307

124 — Affidavit in support of application for leave to issue a judgment summons on a judgment or order against a firm, or a person carrying on business in a name other than his own308

125 — Judgment summons on a judgment or order of a Local Court against a firm or a person carrying on business in a name other than his own309

126 — Affidavit where judgment summons is sought on a judgment of another Local Court311

127 — Order upon a judgment summons altering original order of judgment312

128 — Order on judgment summons altering original order or judgment when obtained in Supreme Court313

128A — Praecipe for bench/chamber warrant to arrest judgment debtor under section 130(2a) of the Act314

128B — Warrant to arrest judgment debtor under section 130(2a) of the Act315

129 — Praecipe for order of commitment316

130 — Order of commitment on judgment summons318

131 — Notice of an order under a judgment summons319

132 — Notice to debtor where order of commitment made but directed to be suspended320

133 — Affidavit under Order 26, rule 19321

134 — Request by creditor for discharge of prisoner321

135 — Certificate of payment by prisoner322

136 — Certificate by clerk for discharge of judgment debtor323

137 — Notice of arrest of debtor under commitment order323

138 — Endorsement of an order of commitment issued in a foreign court324

139 — Affidavit to ground garnishee order324

140 — Summons to garnishee325

141 — Notice to judgment debtor of payment into court by garnishee326

142 — Judgment on garnishee summons327

143 — Execution against garnishee328

144 — Notice of claim to goods taken in execution328

145 — Notice by execution creditor of admission of title of claimant329

146 — Interpleader summons to execution creditor330

147 — Interpleader summons to a claimant of goods331

148 — Particulars of claim under interpleader summons331

149 — Order on an interpleader summons where the claim is not established332

150 — Order on an interpleader summons where the claim is established333

151 — Warrant of execution against the goods of claimant334

152 — Affidavit by defendant sued by an assignee who has had notice that the assignment is disputed by the assignor, or by defendant in action for debt, chose in action, or chattel, who has had notice of any opposing or conflicting claim336

153 — Interpleader summons to assignor or other person disputing assignment, or person making, opposing or conflicting claim to debt, chose in action, or chattel sued for337

154 — Notice to plaintiff where interpleader summons issued to assignor or other person disputing assignment, or person making, opposing, or conflicting claim to debt, chose in action, or chattel sued for338

155 — Notice to defendant of issue of interpleader summons339

156 — Particulars of grounds on which assignment is disputed or subject matter claimed340

157 — Order where assignment is adjudged invalid, or opposing claim is sustained341

158 — Order where assignment is valid or opposing claim fails342

159 — Order where assignment is invalid, or opposing claim is sustained, and defendant files a counterclaim against plaintiff343

167 — Summons for recovery of possession of land344

168 — Summons for recovery of possession of land for non‑payment of rent345

169 — Order for recovery of possession of land for non‑payment of rent346

170 — Summons for recovery of possession of land under section 103347

171 — Order for recovery of land under section 99 or 103348

172 — Warrant of possession349

173 — Notice in action for recovery of land that a person not originally made a defendant will appear and defend350

174 — Notice in action for recovery of land that a defendant will limit his defence to part of the property351

175 — Warrant of delivery351

176 — Notice to distrainer of goods intended to be replevied352

177 — Bond in replevin where action to be commenced in Supreme Court353

178 — Bond in replevin where action to be commenced in Local Court354

179 — Warrant to bailiff to replevy355

180 — Judgment for defendant in replevin for rent356

181 — Judgment for defendant in replevin of cattle damage feasant356

182 — Interlocutory order in the nature of an injunction357

183 — Notice to be endorsed on order under Order 23, rule 5357

184 — Praecipe for summons for examination in aid of execution358

185 — Summons for examination in aid of execution on a judgment or order of a Local Court359

185A — Praecipe for bench/chamber warrant to arrest judgment debtor under section 144(2) of the Act360

185B — Warrant to arrest judgment debtor under section 144(2) of the Act360

185C — Order under section 144(4) for production of books, deeds, papers or writings361

185D — Application for order for examination in aid of seizure under the Fines, Penalties and Infringement Notices Enforcement Act 1994362

185E — Order for examination in aid of seizure under363

185F — Interpleader summons to a claimant of property364

185G — Particulars of claim under interpleader summons365

186 — Warrant of attachment365

187 — Notice of application for discharge from custody366

188 — Order of discharge from custody366

189 — Notice of change of solicitor367

190 — Notice to bailiff of foreign court of complaint against him367

191 — Notice to bailiff of foreign court of order against him for neglect368

192 — Summons under section 21 of the Act, for neglect to levy execution369

193 — Order under section 21 of the Act, awarding damages for neglecting to levy execution370

194 — Summons under section 24 of the Act for extortion or misconduct371

195 — Order under section 24 of the Act, for repayment of money extorted, or payment of money levied, and for damages, costs, and fine372

196 — Order under section 156 of the Act for imprisonment or fine for insult or misbehaviour373

197 — Warrant of commitment under section 156 of the Act, for insult or misbehaviour374

198 — Notice of judgment or order to party directed to be served with notice thereof375

199 — Summons to parties to attend upon taking accounts375

200 — Clerk’s certificate376

201 — Notice that clerk’s certificate may be inspected377

Part II378

Part III388

Notes

Compilation table392

 

Local Courts Act 1904

Local Court Rules 1961

Order 1  Preliminary

1.Citation and commencement

(1)These rules of court may be cited as the Local Court Rules 1961 1.

(2)[Omitted under the Reprints Act 1984 s.7(4)(f).]

(3)These rules shall come into operation at the expiration of one month from the publication of these rules in the Government Gazette 1.

2.2Interpretation

In these rules, unless the context otherwise requires — 

the Act means the Local Courts Act 1904, as amended from time to time;

bailiff includes deputy and assistant bailiff and police officer when acting as a bailiff;

Bankruptcy Act means the Bankruptcy Act 1924, of the Parliament of the Commonwealth of Australia and any Act passed in amendment of or substitution for that Act;

clear days means that in all cases in which any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned exclusive both of the first and of the last day;

clerk delegate means the clerk to whom a delegation in writing is made by the Minister or magistrate under section 130 of the Act;

court means the local court having jurisdiction in the action or matter, and includes a magistrate exercising the powers of the court in chambers;

disadvantaged person means — 

(a)a person who produces, or in respect of whom there is produced, to the clerk evidence to the satisfaction of the clerk showing that the person holds — 

(i)a Health Care Card;

(ii)a Health Benefit Card; or

(iii)a Pensioner Health Benefit Card,

issued by the Department of Social Security or the Department of Veteran’s Affairs of the Government of the Commonwealth; or

(b)a person who satisfies the clerk that he is, by reason of his financial circumstances, unable to pay the prescribed fees;

foreign court means the court into which process is issued from another court;

home court means the court from which process is originally issued;

order means the final decision of the court in any matter, and also any decision of the court other than a final decision in any action or matter, and also the decision of the magistrate on an interlocutory application;

trial means the hearing of any action or matter in court.

[Rule 2 of Order 1 amended in Gazette 20 January 1984 p.136; 28 June 1985 p.2299.]

Order 2 — Offices and officers

1. 2Office opening hours

An office shall be kept open by the clerk at each place where the court of which he is clerk is held, and that office shall be kept open on such days and for such hours as the Minister may from time to time appoint, except on public holidays prescribed by or proclaimed under the Public Service Act 1904 3. A memorandum of the hours during which the offices of a court will be open shall be written on all summonses and warrants issued from that court.

2. 2Clerk to keep books and issue process

The clerk shall — 

(1)(a)file all documents issued to him in any action or matter;

(b)number each plaint with a distinguishing number;

(c)distinguish each document by the number of the plaint in respect of which it is filed;

(d)enter in the register the fact of the receipt and despatch of all documents.

(2)Issue each summons, warrant, order of commitment, or other process forthwith after the respective plaint is entered, or the warrant, order or other process is applied for.

(3)Without derogating from the provisions of subrule (1) keep books and make returns in the form and in the manner from time to time directed and approved by the Minister.

3. 2Transmission of summons for service by bailiff of foreign court

Where a summons is required to be served by the bailiff of a foreign court, the clerk shall transmit the same to the bailiff of the foreign court forthwith after the plaint is entered, unless the magistrate of the home court orders the summons in any particular case to be served by the bailiff of the home court; and where any summons is returned to the clerk of the home court by a bailiff of a foreign court, not served, the clerk of the home court shall forthwith give notice to the plaintiff of that non‑service.

4. 2Copies of documents, how made

Copies of all proceedings or documents in the custody of the court or its officers shall be prepared by the clerk for any party entitled to require the same, upon payment of the fee prescribed by these rules.

5. 2Searches and payment out of court

The clerk shall allow searches to be made, and shall pay out the money to which suitors are entitled, on such proof of title thereto as he shall deem sufficient.

5A.Clerk to provide searchable information to approved recipients

(1)In this rule —

approved recipient means a person who is approved in writing by the Attorney General as a person entitled to receive information from the court;

searchable information, in relation to an action or matter in the court, means —

(a)the names and addresses of the parties and the amount and nature of the claim;

(b)the amount of any judgment entered; and

(c)whether the action or matter has been discontinued.

(2)Except as provided in subrule (4), the clerk shall on each working day provide an approved recipient with such searchable information that has not already been provided to the recipient in relation to each action or matter in the court.

(3)An approved recipient to whom information has been provided under subrule (1) is liable to a fee in the amount prescribed in Appendix Part II Table of court fees item 8(aa) for each action or matter specified in the information.

(4)If suitable facilities exist at the court to enable searchable information to be provided by email, then the information shall not be provided except by email to an approved recipient who has paid the annual fee prescribed in Appendix Part II Table of court fees item 8(ab).

[Rule 5A inserted in Gazette 17 Dec 2002 p. 5921-2.]

6. 2Acknowledgment of payments and deposits

Whenever money is paid into or deposited in court, whether before or after judgment, an acknowledgment in writing of the payment or deposit shall be given by the clerk to the parties to the action.

7. 2No officer to act as agent to parties

No clerk, bailiff, or other officer of the court shall, on account of suitors, sign the ledger or any other book, or receive money or otherwise act as an agent for that purpose.

8. 2Absence of bailiff from court

When the bailiff is absent from the sitting of the court, he shall inform the clerk of the cause of his absence, and an entry of the cause of that absence shall be made by the clerk on the minutes of the then sitting or the next succeeding court.

9. 2Bailiff to keep books

The bailiff shall keep books and make returns according to the forms and in the manner from time to time directed and approved by the Minister, and keep the books available and open for inspection by the clerk at all times.

10. 2Attendance at office of clerk

The bailiff shall attend for the purpose of receiving process, and for the performance of other duties, at the office of the clerk once at least every day during the hours it is open.

11. 2Service of process

The bailiff shall as soon as practicable, serve or cause to be served every summons, or other process issued to him out of the court of which he is bailiff, or sent to him for service from other courts.

12. 2Return of copy of judgment summons served by bailiff of foreign court

Where a judgment summons is required to be served by the bailiff of a foreign court he shall, 3 clear days at least before the return day, return the copy thereof duly endorsed and signed by him, or the summons itself if not served, to the clerk of the court out of which it was issued.

13. 2Where return of service to home court is not made, foreign bailiff may be ordered to pay costs

(1)Where the bailiff of a foreign court neglects to return a copy of a judgment summons, as required by rule 12, the magistrate of the home court may, upon evidence of such summons having been delivered for service to the bailiff of the foreign court, direct notice, according to the form in the Appendix, to be given to that bailiff that the magistrate will, on a day to be mentioned, unless the bailiff shows cause to the contrary, make an order directing him to pay to the judgment creditor such sum as the magistrate may think reasonable, as compensation for any loss of time and expense which may have been caused to the judgment creditor by such neglect.

(2)If on the day mentioned the magistrate makes an order for payment by the bailiff, a memorandum of the order shall be made in the minute book, and the clerk of the home court shall transmit to the bailiff of the foreign court a notice thereof according to the form in the Appendix.

(3)If the bailiff within the time limited by the order remits to the clerk of the home court the sum directed by the order to be paid, the clerk shall pay the same to the judgment creditor.

(4)If the bailiff does not, within the time limited by the order, remit to the clerk of the home court, the sum directed by the order to be paid, the clerk shall pay that sum to the judgment creditor out of any money in his hands, and shall transmit to the clerk of the foreign court a copy of the notice, certifying thereon the neglect of the bailiff to pay the money as required, and the payment thereof by the clerk of the home court; and the clerk shall be allowed by the Treasury at his audit the amount so paid; and the clerk of the foreign court shall deduct such sum from any payment he may be required to make to the bailiff.

14. 2Execution and entries of warrants and orders

The bailiff shall execute, as soon as possible after delivery to him, every warrant, order of commitment, or other order of the court, and shall enter in the proper book every warrant and order which he has been required to execute, and shall state from time to time therein what he has done under each warrant or order, and if the same be not executed within one month from the day of delivery to him why it has not been executed; and he shall at all reasonable times give to the clerk all information which he may reasonably require as to the execution or non­-execution of any warrant or order.

15. 2Procedure where bailiff required to hold moneys under Bankruptcy Act

(1)Where the bailiff is required by or under the provisions of the Bankruptcy Act, or any other statute to hold the proceeds of sale under an execution or the money paid to avoid a sale for a period of 14 days or such other period of time as is prescribed, he shall forthwith pay the amount of the moneys so received to the clerk of the court of which he is the bailiff.

(2)Upon receipt of the money the clerk shall — 

(a)in the case of a home court retain the amount in his trust account; and

(b)in the case of a foreign court forthwith transmit the same to the clerk of the home court, and in either case the money shall be held for the requisite period of time.

16. 2Endorsement of levy — moneys to be paid in within 3 days

Subject to the provisions of rule 15 a bailiff levying or receiving money by virtue of the process of any local court, shall forthwith enter in ink on the face of and at the foot or in the margin of the process, the amount levied or received and shall sign the entry and within 3 days from the receipt of the money pay over the same to the clerk of the court of which he is bailiff, who shall endorse upon the warrant a memorandum of having received the same, and return the process to the bailiff.

17. 2Notice of withdrawal on receipt of notice of sequestration

Where the bailiff withdraws from possession after he receives notice that a sequestration order in bankruptcy has been made, he shall, within 24 hours after such withdrawal, send to the clerk notice thereof according to the form in the Appendix, and the clerk shall communicate the fact to the execution creditor.

18. 2Non-execution of warrant by bailiff of foreign court

When a warrant, order of commitment, or other order of the court required to be executed by the bailiff of a foreign court has not been executed within one month from the day of delivery, the bailiff of the foreign court shall, on the day after the termination of the month, make a return to the clerk of the home court according to the form in the Appendix; and when any such warrant or order has not been executed during the time it is in force, such bailiff shall return the same to the clerk of the home court within 24 hours from the expiration of such time, and shall endorse on the warrant or order the reason why it could not be executed, and sign the endorsement; but the bailiff shall return the warrant or order, although unexecuted, to the home court at any time if he is directed so to do by the clerk of the home court, and give such information as that clerk may require respecting the warrant or order.

19. 2Duties of bailiff as to sale of property

When any property is directed to be sold by auction, detained, or preserved, the bailiff shall, if the magistrate so directs, effect or superintend the sale, detention, or preservation; and where the property is to be sold by private contract, he shall carry out the directions of the magistrate in respect of the sale.

20. 2Taking possession of goods

Where a warrant directs the bailiff to detain and preserve any goods, he shall take and retain possession of the goods until further order is made by the magistrate.

21. 2Where possession ordered to be taken until security given

(1)When a warrant directs the bailiff to take possession of any goods until security is given by some party for their safe keeping, or for the payment of the value in default of safe keeping, but does not specify the amount of the security, the bailiff shall make or cause to be made an inventory and appraisement of the goods which he may take into his possession; and, upon receiving as a deposit the amount of the appraisement, or sufficient security, to be approved by the clerk, for the safe custody of the goods, and for the delivery up of possession thereof upon request, the bailiff shall relinquish possession on condition that the goods shall be re-delivered to him on request, or held to abide the order of the magistrate.

(2)If the warrant specifies the amount of security, no less deposit or security shall be sufficient.

22. 2Bailiff to make return of arrest

Every bailiff to whom a warrant of commitment is forwarded shall immediately after the arrest of the judgment debtor notify the clerk of the court out of which the warrant issued, as well as the clerk of his court, the date of the arrest, and the prison in which the debtor is confined.

Order 3 — Parties

1. 2Persons may be joined as plaintiffs who claim relief jointly, severally, or in the alternative

All persons may be joined as plaintiffs in one action in whom any right to any relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if such persons brought separate actions, any common question of law or fact would arise: Provided that if upon the application of any defendant it appears that such joinder may embarrass or delay the trial, the magistrate may order separate trials, or make such other order as may be expedient: And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment; but the defendant, though unsuccessful, shall be entitled to any extra costs occasioned by so joining any person who is not found entitled to relief, unless the magistrate in disposing of the costs of the action otherwise directs.

2. 2Persons may be joined as defendants against whom relief claimed jointly, severally, or in the alternative

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

3. 2All defendants joined need not be interested in all the relief prayed for

It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the magistrate may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.

4. 2All or any of the persons liable under any one contract may be joined

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

5. 2Where plaintiff in doubt from whom he is entitled to redress

Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join 2 or more defendants, to the extent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties.

6. 2Trustees, executors, and others may sue or be sued without joining parties beneficially interested

Trustees, executors, and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons; but the magistrate may, at any stage of the proceedings, order any of such persons to be made parties to the action, either in addition to or in lieu of the previously existing parties thereto.

7. 2Where parties numerous, one or more may sue or be sued or defend for the benefit of all

Where there are numerous persons having the same interest in one action or matter, one or more of such persons may sue or be sued, or may be authorised by the magistrate, before or at the trial, to defend in such action or matter, on behalf or for the benefit of all parties so interested.

8. 2Where defendant desires to defend on behalf of others

When a defendant desires to defend on behalf or for the benefit of others having the same interest, he shall within 2 clear days of the date of service of the summons on him give notice to the plaintiff of his intention to apply, upon a day and an hour to be named in such notice, to the magistrate or clerk for leave so to defend, and shall file an affidavit of the facts upon which he relies to obtain such leave, together with the names, addresses, and occupations of such persons; and the magistrate or clerk may thereupon make an order for the defendant so to defend, and the names of the persons as to whom such order is made shall be added to that of the defendant in the plaint and minute book; and a copy of such order, with a copy of the summons and particulars in the action, and a notice according to the form in the Appendix, shall be personally served on each of such persons, and notice shall be sent to the plaintiff according to the form in the Appendix: Provided that the plaintiff or any of the persons whose names have been so added may at the trial object to the defendant defending on behalf of all or any of the persons as to whom such order has been made, and the magistrate or clerk may thereupon, if he thinks fit, strike the names of all or any of such persons out of the proceedings, and order the defendant to pay such costs as he may think fit.

9. 2Infants

Subject to the provisions of section 57 of the Act infants may sue as plaintiffs by their next friends, and may defend by their guardians appointed for that purpose.

10. 2Appointment of guardian

Where it appears on the face of the proceedings that any defendant to an action or matter is an infant not above the age of 18 years, or a person of unsound mind not being an insane person or patient within the meaning of the Lunacy Act 1903 4, as amended, the following provisions shall apply: 

(1)At any time after the service of the summons, and in personal actions not less than one clear day before the expiry of the time limited for giving notice of defence and in other cases not less than 6 clear days before the return day, a guardian ad litem to such infant or person of unsound mind may be appointed by the clerk, on application made to him on behalf of such infant or person of unsound mind, on affidavit according to the form in the Appendix, accompanied by a written consent of the proposed guardian to act as such guardian.

(2)Where such appointment is made, the clerk shall forthwith send notice by post of such appointment to the plaintiff, according to the form in the Appendix.

(3)Where no application for the appointment of a guardian ad litem is made on behalf of the infant or person of unsound mind within the time hereinbefore limited, the clerk shall, in personal actions before the expiry of the time limited for giving notice of defence and in other cases on the sixth day before the return day, send notice by post to the plaintiff that no such application has been made, according to the form in the Appendix.

(4)The plaintiff shall thereupon, before proceeding further with the action or matter against such infant or person of unsound mind, apply to the magistrate for an order that some proper person be assigned guardian ad litem of such defendant, by whom he may appear and defend, and, if necessary, for a postponement of the trial.

(5)Such application shall be made on affidavit according to the form in the Appendix; and notice of such application, together with a copy of such affidavit shall, 3 clear days at least before the day in such notice named for hearing the application, be served upon or left at the dwelling‑house of the person with whom or under whose care such defendant was at the time of service of the summons, and shall also (in the case of such defendant being an infant not residing with or under the care of a parent or guardian of the infant’s) be served upon or left at the dwelling‑house of the parent or guardian (if any) of such infant: Provided that the clerk may, on the application of the plaintiff, dispense with such last-mentioned service.

(6)On the hearing of the application the magistrate, if satisfied with the proposed guardian, may appoint him to act as such guardian; but if not so satisfied, the magistrate may appoint any other person willing to act as guardian; or in default of such person, the magistrate may appoint the clerk to act as guardian; and the action or matter shall thenceforth proceed as if a guardian had been appointed on behalf of the defendant. The magistrate may, if necessary, on the hearing of such application, postpone the trial.

(7)Provided, that where an infant is sued for a debt or other liquidated demand, the notice required by paragraph (3) need not be sent, nor shall paragraphs (4) to (6) apply, unless in any case the clerk thinks it necessary for the protection of such infant that such notice should be sent, or the magistrate directs such notice to be sent.

(8)The expression insane person has the same meaning herein as in Order 6, rule 11.

[Rule 10 of Order 3 amended in Gazette 30 June 2003 p.2613.]

11. 2Appointment of guardian ad litem for infant or person of unsound mind

Where it does not appear on the face of the proceedings, but is made to appear in the course of the proceedings, that any defendant to an action or matter is an infant not above the age of 18 years, or a person of unsound mind not being such an insane person or patient as aforesaid, the following provisions shall apply: 

(1)If on any defendant appearing at the trial it appears that such defendant is an infant, and such defendant names a person as his guardian who then assents so to act, such person shall be appointed guardian accordingly; but if the defendant does not name a guardian, the magistrate may appoint as guardian any person in court who is willing to act as such guardian; or in default of any such person the magistrate may appoint the clerk to act as guardian; and the action or matter shall thenceforth proceed as if the infant had named a guardian, and the name of the guardian appointed shall be entered according to one or other of the forms in the Appendix.

(2)In any other case, on its being made to appear that any defendant is an infant or a person of unsound mind not being such an insane person as aforesaid, a guardian ad litem to such defendant may be appointed at any time within 6 days of its being made to appear that such defendant is an infant or a person of unsound mind, on application made on behalf of such defendant in accordance with paragraphs (1) and (2) of the last preceding rule; and if no such application is made within such period of 6 days, the clerk shall send notice to the plaintiff in accordance with paragraph (3) of the same rule; and thereupon the plaintiff shall, before proceeding further with the action or matter against such defendant, apply for such appointment in accordance with paragraphs (4) to (6) of the same rule: and the trial shall, if necessary, be postponed to allow an application for the appointment of a guardian to be made.

(3)Provided, that paragraph (7) of the last preceding rule shall apply to cases falling within this rule.

12. 2Entry of appointment on summons, etc.

Where a guardian is appointed under either of the 2 preceding rules such appointment shall be entered on the summons and in the minute book, and on all subsequent proceedings.

13. 2Limitation of liability of guardian for costs

A guardian ad litem to an infant or a person of unsound mind shall not be personally liable to any costs not occasioned by his personal negligence or misconduct.

14. 2Power to set aside judgment against infant or person of unsound mind where no guardian appointed

Where judgment has been obtained or an order made against a defendant who was at the time an infant not above the age of 18 years or a person of unsound mind not being an insane person or patient as aforesaid, without a guardian ad litem having been appointed to such defendant, the magistrate may set aside such judgment or order and order a new trial, or make such other order as may be just.

15. 2Infants and others suing by next friends

(1)Where an infant not above the age of 18 years desires to commence or become a plaintiff in an action (other than for wages or piecework, or for work or services as a clerk, servant, mechanic, or labourer), or is a claimant in an interpleader proceeding, he may sue by a next friend, and the christian name and surname description, and residence or place of business of the next friend shall be stated in the summons or claim; and such next friend shall, at the time of entering the plaint or delivering the particulars of the goods alleged to be the property of the infant, either attend at the office of the clerk and give an undertaking, according to the form in the Appendix, to be responsible for costs, or transmit such an undertaking to the clerk; and if such undertaking is not given at the office of the clerk, it shall be attested by a solicitor. The plaint shall not be entered or the particulars received until such undertaking has been given and on entering into such undertaking the next friend shall be liable in the same manner and to the same extent as if he were himself the plaintiff; and the action or interpleader proceeding shall proceed in the name of the infant by such next friend, and the undertaking shall be filed by the clerk; but no order of the court shall be necessary for the appointment of such next friend. If the infant fails in or discontinues his action or proceeding, and does not pay the amount of costs ordered to be paid by him to the defendant, proceedings may be taken for the recovery of such amount from the next friend as for the recovery of a judgment debt.

(2)This rule shall apply mutatis mutandis to all cases in which a party sues by a next friend.

16. 2Persons of unsound mind

A person who is an insane person or patient within the meaning of the Lunacy Act 1903 4, as amended, or is or is deemed to be an incapable person within the meaning of that Act may sue or defend by the committee of his estate or the person having the powers of such a committee.

17. 2Persons under disability — how consent can be given

In any action or matter to which any person under any disability is a party, any consent as to the mode of taking evidence, or as to any other procedure given by the next friend, guardian, committee, or other person acting on behalf of the person under disability shall, with the consent of the magistrate, have the same force and effect as if such party were under no disability and had given such consent: Provided that no such consent by any committee or a person exercising the powers of a committee of an insane person or patient or of an incapable person or a person deemed to be an incapable person shall be valid as between him and the person on whose behalf the consent is given unless given with the sanction of a Judge or the Master of the Supreme Court.

[18.Repealed in Gazette 30 June 2003 p.2613.]

19. 2Partners

(1)Partners may sue or be sued in the firm name and action against a firm in the firm name shall be sufficient to include all partners constituting the firm.

(2)Where a firm sues or is sued in a firm name the other party to the action may apply to the magistrate in chambers for an order that the names and addresses of the partners of the firm be supplied to that party and the magistrate may order any partner in the firm to file an affidavit setting forth the full names and addresses of the partners at the time the cause of action accrued.

(3)If the party required to supply the particulars mentioned in subrule (2) fails to comply with the terms of the order the magistrate may — 

(a)stay any action by a firm in its firm name until; or

(b)order that any defence by a firm in its firm name be struck out, unless,

particulars of the constituent partners have been furnished in the terms of the order.

Order 4 — Joinder of causes of action

1. 2What claims may be joined with action for recovery of possession of land

(1)No cause of action shall, unless by leave of the magistrate, be joined with an action for the recovery of possession of land, except claims in respect of rent or mesne profits in respect of the premises claimed or any part thereof, or damages for breach of any contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed, or damages under section 103 of the Act.

(2)Notwithstanding anything in subrule (1), an action for the recovery of possession of land shall not be joined in an action for a small debt.

[Rule 1 of Order 4 amended in Gazette 9 December 1983 p.4812.]

2. 2As to joinder of claims by trustee in bankruptcy

Claims by the Official Receiver or a trustee in bankruptcy as such shall not, unless by leave of the magistrate, be joined with any claim by him in any other capacity.

3. 2Joinder of causes of action generally

Subject to the 2 preceding rules, a plaintiff may unite in the same action several causes of action without leave of the magistrate.

4. 2Claims by or against husband and wife

Claims by or against husband and wife or de facto partners who are living in a de facto relationship with each other, may be joined with claims by or against either of them separately.

[Rule 4 of Order 4 amended in Gazette 30 June 2003 p.2613.]

5. 2Claims by or against executor or administrator

Claims by or against an executor or administrator as such may be joined with claims by or against him personally, provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator.

6. 2Joint and separate claims by plaintiffs

Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant.

7. 2Separate trials may be ordered

If at any time it appears or is made to appear to the magistrate that any causes of actions united or claims joined in any action cannot be conveniently tried and disposed of together, he may order separate trials, or may exclude any such cause of action or claim, and may order the proceedings to be amended accordingly, and may make such order as to costs as may be just.

Order 5  Commencement of action, claim and summons

1. 2Actions to be commenced by plaint

All proceedings authorised to be commenced in a local court by or under the Act shall, except when otherwise provided by the Act or these rules, be commenced by the entry of a plaint, and shall be called actions.

2. 2Trials by agreement under section 39

Where the parties, in pursuance of section 39 of the Act, agree to try any action in a local court, a plaint shall be entered and a summons shall be issued thereon as in other cases, and all the rules and practice of the court shall apply in such cases, so far as the same are applicable. The plaintiff on entering the plaint shall file with the clerk the memorandum of consent required by the Act.

3. 2Form of plaints

(1)A plaint in a personal action shall be according to form 6 in the Appendix except where the plaintiff wishes to elect under section 106C(1) of the Act to have the action heard and determined under Part VIA of the Act, in which case the plaint shall be according to form 6A in the Appendix.

(2)A summons in a personal action shall be in the form of, and bear the endorsements and subscriptions indicated — 

(a)in the case of an action for a small debt, in form 14A in the Appendix;

(b)in any other case, in form 14 in the Appendix,

but the order in which the various matters are set out in those forms need not be strictly followed, and matters required to be endorsed may be subscribed and vice versa.

[Rule 3 of Order 5 inserted in Gazette 9 December 1983 p.4813.]

4. 2Action against company

Where a company having a registered office under the Corporations Act 2001 of the Commonwealth, is a defendant, the claim or summons shall state the situation of such office.

[Rule 4 amended in Gazette 19 October 2001 p.5609.]

5. 2Particulars of parties required in plaint

(1)Subject to Order 3, rule 19, where a plaintiff commences an action against one or more defendants he shall state in the plaint his own and the defendant’s or defendants’ full christian names and surnames, and his own and the defendants’ addresses for service; such address for service shall be the place of residence or business of the respective parties.

(2)Where the plaintiff is unable to comply with the provisions of subrule (1), the clerk may accept the plaint, but the magistrate may in his discretion subsequently make an order against the plaintiff, and the provisions of Order 3, rule 19, shall apply mutatis mutandis to the application for and the making of the order.

(3)Where a plaintiff commences an action against more than one defendant he shall in addition endorse in the margin of each copy of the summons for service the following — “For service on...............................of........................................................., one of the defendants.”

6. 2Action by or against representatives

If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, then such capacity shall be stated in the claim or summons.

7. 2Action by assignee of debt

Where an assignee of a debt or other legal chose in action sues, the fact that he is such assignee and the name of the assignor shall be stated in the claim.

[8.Repealed in Gazette 29 August 2000 p.4987.]

9. Time to be limited for notice of defence

(1)The time to be limited in a summons in a personal action for giving notice of defence is —

(a)where the place of service is within Western Australia, 14 days;

(b)where the place of service is outside Western Australia but within the Commonwealth —

(i)21 days; or

(ii)such shorter period as the magistrate, on application, allows;

and

(c)where the place of service is outside the Commonwealth, such time as is directed by the magistrate.

(2)For the purposes of subrule (1)(b)(ii), the matters that the magistrate must take into account in determining an application to allow a shorter period include —

(a)urgency;

(b)the places of residence or business of the parties; and

(c)whether a related or similar proceeding has been commenced against the person to be served with the summons or another person.

[Rule 9 of Order 5 inserted in Gazette 29 August 2000 pp.4987‑8.]

10. 2Time when more than one defendant

Where the time for giving notice of defence is not the same for each defendant, the proper time for each defendant shall be separately limited in the summons.

11. 2Endorsement of fees

On the issue of a summons, the clerk shall enter thereon all court and service fees.

12. 2Security for or undertaking as to costs, where plaintiff not resident in Commonwealth

The magistrate may order security for costs, by deposit of money or otherwise, to be furnished by a plaintiff (which term, in this rule, shall include a defendant who counterclaims by way of defence) who is not resident in the Commonwealth and upon such order being made the plaintiff shall not commence nor take any step or proceeding in an action until he has complied with the terms of the order: Provided that where the plaint is entered through a solicitor, an undertaking by him, according to the form in the Appendix, to be responsible for the costs shall be sufficient. If the plaintiff, or defendant, as the case may be, fails in or discontinues his action or proceeding, and does not pay the amount of costs ordered to be paid by him to the defendant, or plaintiff, as the case may be, proceedings may be taken for the recovery of such amount from him, or from his solicitor if he has given the undertaking, as for the recovery of a judgment debt.

13. 2Security by person temporarily resident in Commonwealth

A person ordinarily resident out of the Commonwealth may be ordered to give such security or undertaking as in the preceding rule mentioned, though he may be temporarily resident in Australia.

14. 2Service by plaintiff or his solicitor

When a plaint is entered by the plaintiff or his solicitor, he may, at the time of the entry, write in the margin of one copy of the summons the words “Service by plaintiff (or plaintiff’s solicitor)”.

If the plaintiff or his solicitor undertakes the service of a summons he shall not be required to pay the bailiff’s fees for service, and a plaintiff’s solicitor shall be allowed such service fee as is hereinafter provided for and a plaintiff may be allowed by the clerk a similar fee for such service.

15. 2Particulars of claim

(1)The plaintiff shall annex to or endorse on the summons a claim containing particulars in accordance with the Act, or such particulars as shall be reasonably sufficient to inform the defendant of the demand intended to be made against him.

(2)If the plaintiff’s particulars have been previously rendered to the defendant, it shall be sufficient, subject to the Act, to state the nature and amount or value of the claim, with the addition of the words “particulars whereof have been rendered”.

(2a)Where the plaintiff intends to seek an order under section 32 of the Supreme Court Act 1935 for the payment of interest, he shall include in the particulars annexed to or endorsed on the summons a statement to that effect.

(3)The magistrate may in any case order delivery of further and better particulars, on such terms (if any) as he shall think fit.

(4)Subrules (2) and (3) do not apply in relation to an action for a small debt.

[Rule 15 of Order 5 amended in Gazette 20 May 1983 p.1523.]

16. 2Abandonment of excess

Where the claim or demand — 

(a)exceeds $25 000 and the plaintiff desires to abandon the excess pursuant to section 59 of the Act; or

(b)exceeds $3 000 and the plaintiff desires to abandon the excess pursuant to section 106C(2) of the Act,

the abandonment of the excess shall be stated at the end of the particulars.

[Rule 16 of Order 5 inserted in Gazette 9 December 1983 p.4813; amended in Gazette 17 May 1985 p.1679; 27 November 1987 p.4254; 26 January 1993 p.840.]

17. 2Particulars in cases of account

Where the plaintiff in the first instance desires to have an account taken, the particulars shall contain a claim that such account be taken, and shall state the amount which the plaintiff claims subject to such account; and if such amount exceeds $25 000 and the plaintiff desires to abandon the excess, the abandonment of the excess shall be entered at the end of the particulars. If no amount is stated in the particulars, the plaintiff shall be deemed to claim $25 000.

[Rule 17 of Order 5 amended in Gazette 12 November 1982 p.4450; 27 November 1987 p.4254; 26 January 1993 p.840.]

18. 2Particulars in actions for recovery of possession of land

In actions for recovery of possession of land, the particulars shall contain a full description of the property sought to be recovered and of the annual value thereof, and of the rent, if any, fixed or paid in respect thereof.

19. 2Particulars where more than one cause of action

Where the plaintiff seeks to obtain payment or satisfaction, or relief, redress, or remedy upon more than one cause of action or claim, he shall in his particulars state the grounds of each claim separately, and shall also state separately the payment or satisfaction, relief, redress, or remedy he claims in respect of each.

20. 2Further particulars

(1)In any action other than an action for a small debt the defendant may, at any time not later than 5 clear days before the return day, give notice to the plaintiff that he requires further particulars, and the plaintiff shall, within 3 clear days of the service of such notice, file full particulars of his claim, and of the relief or remedy to which he claims to be entitled, and shall, within the same time, deliver to the defendant a copy thereof. If the plaintiff fails to comply with such notice, or complies therewith insufficiently, the magistrate, before or at the trial, if satisfied that the defendant is thereby prejudiced in his defence, may order the plaintiff to file and deliver full particulars, and may adjourn the action, and stay all proceedings therein, or strike out the action on such terms as he thinks fit.

(2)Where pursuant to section 106H of the Act the clerk or the court requires particulars to be furnished in relation to an action for a small debt, that requirement shall be made according to form 51A in the Appendix.

[Rule 20 of Order 5 amended in Gazette 9 December 1983 p.4813.]

21. 2Fraction of a cent

Where the amount claimed in any case includes a fraction of a cent, such fraction shall not be entered in the books of the court, and judgment shall not be given for any fraction of a cent.

22. 2Signature to particulars by solicitor or authorised clerk

Where a plaintiff sues by solicitor, the particulars must be signed by the solicitor in his own name or that of his firm, and he shall state thereon his place of business where he will accept service of proceedings in the action or matter on behalf of the plaintiff, otherwise the costs of entering the plaint by solicitor shall not be allowed: Provided that a clerk or other person, if duly authorised, may sign the particulars on behalf of and in the name of the solicitor.

If in the opinion of the magistrate the particulars are insufficient, he may disallow the solicitor’s costs of and incidental to entering the plaint, preparing the claim and procuring the summons to be issued.

Order 6  Service

1. 2No service outside British Commonwealth of Nations

A summons may be issued for service outside the State; but no summons issued out of a Local Court shall be served outside the British Commonwealth of Nations.

2. 2Leave for service outside Commonwealth

No summons shall be served outside the Commonwealth without the leave of the magistrate, which leave may be given in the form in the Appendix.

3. 2Fixing time for defence

In any order giving leave to serve a summons in a personal action outside the Commonwealth, the magistrate shall fix the time to be limited in the summons for giving notice of defence.

4. 2Non‑personal service

In case the bailiff or other person charged with the service of a summons in a personal action shall deliver the same to some person of the apparent age of 16 years, at the place of abode or business of the party to be served, then such summons shall be deemed to have been duly served on the said party.

Provided that such bailiff or other person shall, by certificate or by affidavit as the case may require (according to one of the forms in the Appendix) to be filed in the court, certify that the place where such summons was so delivered as aforesaid was to his certain knowledge, at the time of such delivery, the actual place of abode or business of the said party.

For the purpose of this rule, a place of business shall not be deemed the place of business of the defendant unless he is the master or one of the masters thereof.

5. 2Proof of service by post

When a summons in a personal action has been served by post, the magistrate or clerk may accept as proof of service a certificate of the clerk of the due posting of the summons as a prepaid registered letter, provided that the clerk has received through the post an acknowledgment of the delivery which appears to the magistrate or clerk to be an acknowledgment of the delivery of such letter, and to be signed by the party to whom such letter was addressed; and it shall be no objection that the said signature does not contain the full names or all the initials of the party.

6. 2Proof of service

Proof of service of any summons in a personal action may be given by the certificate of a bailiff, or by the affidavit of any other person according to one of the forms in the Appendix.

7. 2Rules applicable to other process

The provisions in the Act or made by any rules of court, applicable or relating to service or to proof of service of summonses in personal actions, shall extend and apply to every other process of a local court and also to a notice to quit to ground an action under the Act.

8. 2Time for service

Save as otherwise provided, the service at any place of any summons or other process, which requires the attendance of any party on the trial or hearing of an action or matter in a local court on a return day therein specified shall be effected the same number of days at least before the return day as would be limited for giving notice of defence in a summons in a personal action issued out of the same court and served at the same place.

9. 2Service on solicitor

(1)Where a solicitor represents to the bailiff that he is authorised to accept service on behalf of a party, it shall be sufficient service to deliver the summons to such solicitor.

(2)In this rule bailiff includes any person authorised to effect service of the summons.

10. 2Service on infant

Where an infant is a defendant, service on a parent or guardian of the infant’s, or (if none) on the person with whom the infant resides or under whose care he is, shall, unless the magistrate otherwise orders, be deemed good service on the infant: Provided that the magistrate may order that service made or to be made on the infant shall be deemed good service.

[Rule 10 of Order 6 amended in Gazette 30 June 2003 p.2613.]

11. 2Service on insane person or patient

(1)Where an insane person or patient within the meaning of the Lunacy Act 1903 4, as amended, is a defendant, service on the committee (if any) of such defendant or (if none) on the person with whom the defendant resides or under whose care he is, shall, unless the magistrate otherwise orders, be deemed good service on such defendant.

(2)Committee includes any committee of the person or estate and any person having the powers of such committee, and insane person includes an incapable person and any person deemed to be an incapable person.

12. 2Service on partners

Where persons are sued as partners in the name of their firm, the summons shall be served either upon any one or more of the partners, or at the principal place of the partnership business upon any person having or appearing to have at the time or service the control or management of the business there; and subject to these rules, such service shall be deemed good service on the firm so sued.

[Rule 12 of Order 6 amended in Gazette 19 September 1986 p.3410.]

13. 2Service where person carries on business in name other than his own

Where one person carrying on business in a name or style other than his own name is sued in such name or style as if it were a firm name, the summons may be served at the principal place of business of such person, upon any person having or appearing to have at the time of service the control or management of the business there; and, subject to these rules, such service shall be deemed good service on the person so sued.

[14.Repealed in Gazette 19 September 1986 p.3410.]

15. 2Service where defendant on board ship

Where a defendant is living or serving on board of any ship or vessel, it shall be sufficient service to deliver the summons to the person on board who is, at the time of such service, apparently in charge of such ship or vessel.

16. 2Service on soldier, marine or airman

Where a defendant is residing or quartered in any barracks or camp and serving Her Majesty as a soldier, marine or airman, it shall be sufficient service to deliver the summons at the barracks or camp to the adjutant, or to any officer, warrant‑officer or non‑commissioned officer not below the rank of sergeant of the company, troop or unit to which the defendant belongs.

17. 2Service on prisoner

Where a defendant is a prisoner in a gaol it shall be sufficient service to deliver the summons at the gaol to the superintendent, keeper, or any person appearing to be the head officer in charge thereof.

18. 2Service on miner

Where a defendant is working in any mine or other works underground, it shall be sufficient service to deliver the summons at the mine or works, to any person apparently in charge of the mine or works.

19. 2Service where defendant employed in public asylum or prison

Where a defendant is employed and dwells in any hospital for the insane or other public asylum, or in any common gaol or prison, it shall be sufficient service to deliver the summons to the gate‑keeper or lodge‑keeper of the asylum, gaol, or prison.

20. 2Where defendant keeps his house closed

Where a defendant keeps his house or place of dwelling or place of business closed, so as to prevent a bailiff from serving a summons, it shall be sufficient service to affix such summons on the door of such house or place of dwelling or place of business.

21. 2Service in case of vacant possession

Service of the summons in an action for the recovery of possession of land may, in case of vacant possession, if it cannot otherwise be effected, be made by posting a copy of the summons upon the door of the dwelling house or affixing it to a tree or other conspicuous part of the property.

22. 2Service where violence threatened

Where a bailiff or other person authorised to effect service is prevented by the violence or threats of the defendant, or of any other person in concert with him, from personally serving the summons, it shall be sufficient service to leave such summons as near to the defendant as practicable.

23. 2Service of summons on corporation etc.

In the absence of any statutory provision regulating the service of process, service on a municipal council, road board, or other corporation aggregate, may be made on the mayor, chairman, or other head officer, or on the town clerk, treasurer, or secretary of such corporation; and when by any statute provision is made for service of any summons or other process upon any corporation, or the inhabitants of any place, or any society or fellowship, or any body or number of persons, whether corporate or unincorporate, a summons may be served in the manner so provided.

24. 2Service of summons in proceedings to recover taxes

If in any proceedings for the recovery of land or income tax, or both, with or without fines, against any taxpayer, the defendant — 

(a)is absent from Western Australia and has not, to the knowledge of the Commissioner of Taxation 6 after reasonable inquiry in that behalf, any attorney or agent in Western Australia on whom service of process can be effected; or

(b)cannot, after reasonable inquiry, be found,

then good service of any summons may, without leave of the court, be effected on him by posting the same, or a copy thereof, in a letter addressed to him at his last‑known place of business or abode; and, in case the proceeding is for the recovery of land tax, with or without fines, by affixing a copy thereof on a conspicuous part of the land to which the tax relates.

25. 2Where leave given to proceed as if personal service effected

Where an order is made giving liberty to proceed as if personal service had been effected, the plaintiff shall (unless the defendant give notice of defence or files an admission of the debt), after the expiration of the time limited for giving notice of defence, but before or at the time of entering up judgment, deliver or transmit to the clerk the order giving liberty to proceed, and, where conditions are imposed by the order, an affidavit showing that such conditions have been complied with.

26. 2Substituted service, and notice in lieu of service

Where by reason of the absence of any party, or of some difficulty of effecting service, or from any other sufficient cause, the service of any summons (other than a judgment summons), notice, proceeding, or document cannot be made, the magistrate may, upon an affidavit showing grounds, make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise, as may be just.

27. 2Magistrate may inquire into service

If any dispute shall arise or the magistrate shall entertain any doubt as to the due service of any summons or document, the magistrate shall be at liberty to examine witnesses, and to decide whether such service has been good or otherwise, and either to proceed to hear the action or matter or defer the hearing as he shall think fit, or under special circumstances to order that a person who has not been regularly served, if notice of the summons shall have come to his knowledge, shall be deemed to have been sufficiently served, and the case or matter shall proceed as though such person had been regularly served.

28. 2Notice of service or non‑service

When a process which is required to be served by a bailiff has been served or has not been served within due time, the clerk shall forthwith give notice of such service or non‑service to the party requiring the service and such notice may be according to one of the forms in the Appendix with any necessary modifications.

29. 2Time allowed for service of summons

(1)The time within which a summons may be served shall, unless extended under the next succeeding paragraph, be limited to a period of 12 months from the issue of the summons.

(2)Where reasonable efforts have been made to serve the summons within the said period and service has not been effected, the magistrate may, on application, order that the time be extended for a further period not exceeding 12 months or for successive periods not exceeding 12 months each, but the time shall not be extended for any period unless the application is made within the currency of the last preceding period.

(3)A note of any extension of the time allowed for service shall be endorsed on the summons and on any copy and shall be entered in the books of the court.

(4)Where the summons has not been served within the time allowed for service by this rule, the action shall be struck out.

Order 7 — Objections to jurisdiction — transfer — of actions

1. 2Notice of objection to jurisdiction

The notice to be given to the plaintiff by the clerk of any objection to the jurisdiction of the court chosen for the commencement of an action may be served personally on the plaintiff or left for him at his address for service with some person of the apparent age of 16 years, or sent to him at his address for service through the post or by telegraph, or where a plaintiff acts by a solicitor, such notice may be served on the solicitor.

2. 2Affidavit justifying choice of court

The time to be allowed a plaintiff for filing an affidavit justifying his choice of such court shall be the time that would be allowed him under Order 5 rule 9 for giving notice of defence, if he were a defendant in a plaint.

[Rule 2 of Order 7 inserted in Gazette 23 March 1965 p.894.]

3. 2Form of affidavit

An affidavit justifying a plaintiff’s choice of court shall be according to the form in the Appendix; provided that when all the necessary facts cannot be deposed to by one person, different persons may severally depose to such of the facts as they respectively know, either in the same or in different affidavits.

4. 2Transfer of action

(1)When it becomes necessary to transfer an action under section 36A of the Act, the clerk shall transmit to the clerk of the court to which the action is to be transferred the originals of all proceedings in the action, with a memorandum according to the form in the Appendix, and shall give notice in writing to all parties of the transfer.

(2)The clerk of the court to which the action is transferred shall set it down for trial on receipt of the application provided for by Order 10, rule 2.

5. 2Notice to plaintiff when more than one objection

If there are more defendants than one, and more than one of such defendants object to the jurisdiction but each of the objectors does not require a transfer to the same court, then the notice of objection sent by the clerk to the plaintiff shall be according to the form in the Appendix.

Order 8 — Consolidation of actions or stay of proceedings — transfer

1. 2Consolidation of pending actions and matters

Whenever any issues between the same parties can be conveniently tried together, or whenever it appears desirable notwithstanding that the parties are not identical and that the evidence necessary to prove the issues is not identical, the magistrate may consolidate any number of actions or matters in order to quiet all claims relating to one subject matter, transaction or event, or to substantially similar matters, transactions or events.

2. 2Magistrate may impose terms

The magistrate may at the hearing or on motion in chambers make all necessary directions and impose such terms and conditions as he deems fit for the pre‑trial procedure and for the trial or determination of the consolidated actions or matters.

3. 2Transfer of actions commenced in different courts

Where actions are commenced in different courts by parties in the same interest, upon application by any of the parties they shall be transferred to the court in which the first plaint was entered, and shall there be proceeded with in the same way in all respects as if they had been commenced in that court.

4. 2Application for transfer — costs before or occasioned by transfer — transmission of certified copy of proceedings

Where application is intended to be made for the transfer of any action, matter, or proceeding under section 61 of the Act, or under the last preceding rule, 3 clear days’ notice in writing of such intended application shall be given by the applicant to the clerk of the court in which such action, matter, or proceeding is pending, and to all parties who may be affected by such application; but the magistrate may at any time, by consent of all parties, or without such consent if he thinks fit, order a transfer, although this rule has not been complied with. When a transfer is ordered the magistrate may make such order as to the costs incurred before or occasioned by such transfer as he may think fit; and a certified copy of the proceedings shall be transmitted in accordance with section 61 of the Act, and the provisions of that section shall apply. The costs of such copy and the costs of transmission shall be paid for in the first instance by the party on whose application the transfer has been made, or, if the transfer is made by the magistrate without any application to transfer being made to him, such costs shall be paid for in the first instance by the plaintiff in the action, matter, or proceeding; but such payment shall be without prejudice to any question as to the party by whom such costs are ultimately to be borne.

5. 2Filing order for change of venue

Any person obtaining an order under section 38A of the Act shall, as soon as practicable, file the same or an office copy thereof with the clerk of the court from which the action or matter is ordered to be transferred.

6. 2Payment of costs in certain cases by party obtaining change of venue

When an order with respect to any action made by a judge under section 38A of the Act has been made within 3 clear days before the day fixed for the hearing of the action, or when notice of such an order has not been served on the opposite party and the clerk at least 3 days before that day, the magistrate may order the party who obtained the order to pay the whole or any portion of the costs of the day, unless the judge has otherwise ordered.

7. 2Transfer of proceedings

The clerk of the court from which any action or matter is transferred under section 38A shall send, with the proceedings or certified copies thereof to be transmitted to the clerk of the court to which the action or matter is ordered to be transferred, a memorandum according to the form in the Appendix; and the clerk shall give notice in writing to all parties of the transfer of the action.

7A. 2Action for small debt ordered to be dealt with under general provisions

Where under section 106E(1)(b)(ii) or 106F of the Act a Local Court orders that an action that has been commenced as an action for a small debt be heard and determined under the general provisions, the court shall make a written record of the order and the clerk shall give notice thereof in writing to all parties to the action.

[Rule 7A of Order 8 inserted in Gazette 9 December 1983 p.4813.]

8. 2Notice of trial

On receipt of the memorandum referred to in rule 7, the clerk of the last-mentioned court in that rule shall, after receipt by him of an application from a party to the action in the form in the Appendix, give the parties notice of trial in the manner prescribed by these rules.

[Rule 8 of Order 8 amended in Gazette 27 November 1987 p.4254.]

9. 2Changing venue to a place other than a court

Where, pursuant to section 38B of the Act, the trial or hearing of an action is to be held in a place other than a court the clerk shall give not less than 14 days’ notice of the time and place appointed for the trial or hearing to all parties to the action in form number 52A in the Appendix.

[Rule 9 of Order 8 inserted in Gazette 27 November 1987 p.4254.]

Order 9 — Discontinuance, confession, admission, and payment into or out of court

1. 2Discontinuance

(1)If the plaintiff which term in this rule and rule 2 includes a defendant who counterclaims by way of defence desires to discontinue any action or matter against all or any of the parties thereto, he shall give notice in writing by post or otherwise thereof to the clerk, and to every party as to whom he so desires to discontinue; and after the receipt of such notice any such party may apply ex parte for an order against the plaintiff for the cost incurred before the receipt of such notice, and for the costs of attending the court to obtain the order.

(2)A discontinuance under this rule shall not be a defence to any subsequent action; but if after such discontinuance a subsequent action is brought for the same or substantially the same cause of action before payment of the costs allowed on such discontinuance, the magistrate may, if he thinks fit, order a stay of such subsequent action until such costs have been paid.

2. 2On discontinuance costs may be taxed

Every such party as to whom proceedings have been discontinued may take out an appointment to have his costs taxed, of which he shall give notice by post or otherwise to the plaintiff, and when such party attends the taxation he shall produce to the clerk the notice of discontinuance; whereupon, whether the plaintiff attends or not, the clerk shall proceed to tax such party’s costs, and enter judgment for the amount of the taxed costs, and, if the costs be not paid, such party may recover the same by execution.

3. 2Confessions under section 50

Confessions under section 50 of the Act shall be delivered to the clerk before the expiry of the time limited for giving notice of defence, or before a proceeding in default has been taken: Provided that, at any time before an action is called on, the defendant may withdraw his defence and confess and admit the claim according to the form in the Appendix, subject however to the payment of such costs as the plaintiff has incurred in consequence of the defendant not having delivered such confession as hereinbefore required, and the plaintiff may apply to the magistrate for his costs to be taxed.

4. 2Admission by letter addressed to court

Where a defendant has not signed a confession under section 50(1) of the Act, the magistrate or clerk may accept as an admission of the claim or any part thereof any document containing an admission of the claim or part of it in the manner prescribed in section 50(2) of the Act, if the magistrate or clerk is satisfied that such letter was in fact written by or by the authority of the defendant; and a note of such letter having been accepted as an admission shall be entered in the minute book.

5. 2Consent judgments under sections 50 and 51

In cases of judgment by consent under sections 50 and 51 of the Act, the defendant may confess the amount of the plaintiff’s costs besides the court fees, and judgment may be entered accordingly, and the amount of the plaintiff’s costs shall be stated separately.

6. 2Admission of truth of plaintiff’s statement

Where a defendant desires to admit the truth of the statements in the plaintiff’s particulars, and to submit to the judgment of the court thereon, he may, in the presence of the clerk of any court, or of a solicitor, or justice of the peace, sign an admission according to the form in the Appendix. Such admission shall be filed 5 clear days at least before the return day, and the clerk shall transmit a notice thereof by post to the plaintiff; and the plaintiff shall not, unless the magistrate otherwise orders, be allowed any costs incurred after the filing of such admission in relation to the proof of the matter so admitted: Provided that the plaintiff shall be entitled, notwithstanding such admission, to the costs of attending on the day of trial to enter up judgment and tax his costs.

7. 2Admission by any party

Any party to an action or matter may give notice in writing to any other party that he admits the truth of the whole or any part of the case or claim of such other party, and no costs incurred after the receipt of such notice in respect of the proof of any matters admitted therein shall be allowed; but the costs of any steps taken prior to the receipt of such notice may be allowed, if the clerk, on taxation, is of opinion that they were not taken unnecessarily or prematurely.

8. 2Payment into court

(1)A defendant who desires to pay money into court pursuant to section 49 of the Act shall pay the same within such time as shall allow of notice thereof being given to the plaintiff or his solicitor at least 3 clear days before the return day. Every such payment shall be taken to admit pro tanto the claim or cause of action in respect of which the payment is made, unless it is made with notice of defence and is accompanied by a notice in accordance with the form 47 in the Appendix. When any money is so paid in, the defendant must also pay in a sum sufficient to cover the costs incurred by the plaintiff up to the time of payment, in so far as such costs are sanctioned by the scale applicable to the amount paid in, unless the payment is made with a plea of tender, in which case it may be made without costs.

(2)The defendant shall, at least 3 clear days before the return day, send the plaintiff notice of such payment; and when such payment is made with a denial of liability, he shall also send therewith a copy of the notice prescribed by the last preceding paragraph.

(3)The defendant may also, at any time after the prescribed time, pay money into court, and notice thereof shall be given by the defendant to the plaintiff in accordance with the last preceding paragraph; but the defendant shall not be permitted, except by leave of the magistrate, to give a notice denying liability at the time of such payment.

(4)Where money is paid into court after the prescribed time, or where it is in any case paid in without costs, if the plaintiff does not elect to accept the money so paid in satisfaction, he may proceed as if no such payment had been made.

(5)Whenever money is paid into court pursuant to section 49 of the Act, a person shall not, except in an action to which a defence of tender is pleaded, disclose the fact of that payment — 

(a)in the pleadings concerned; or

(b)to the court at the trial or hearing of the action or matter concerned or of any question or issue as to debt or damages until all questions or issues of liability and of the amount of debt or damages have been decided,

but the court shall, in exercising its discretion as to costs, take into account the fact of that payment and the amount thereof.

(6)The clerk shall, in order to facilitate the operation of subrule (5), ensure that notice of payment into court pursuant to section 49 of the Act is ordinarily kept in a file separate from the file used by the court during the trial or hearing concerned.

[Rule 8 of Order 9 amended in Gazette 22 December 1978 p.4791.]

9. 2Acceptance of amount paid in in satisfaction of claim

(1)If the plaintiff elects to accept, in satisfaction of his claim, the money paid into court by the defendant, whether the same has been paid in in due time or not, or with or without costs, or with or without a notice of denial of liability, he shall send to the clerk and to the defendant by post, or leave at the clerk’s office and at the defendant’s dwelling or place of business, a written notice according to the form in the Appendix, stating such acceptance, within such reasonable time before the return day as the time of payment by the defendant has permitted.

(2)Thereupon the action shall abate, except as herein provided, and the plaintiff shall not be liable to any costs incurred by the defendant after receiving such notice.

(3)In any such case the magistrate may, in his discretion, subject to section 49 of the Act, order the defendant to pay such fees and costs beyond the fees and costs (if any) paid into court by the defendant, as the plaintiff may have properly incurred for work done before the receipt of notice of payment into court, and in attending the court to obtain the order for the same, including, if the magistrate on consideration of the facts of the case so orders, any of the items which might have been allowed by order of the magistrate at the trial.

(4)If the plaintiff intends to apply for such costs, he shall give notice of his intention in his notice of acceptance of the sum paid in, according to the form in the Appendix, or where the time of payment into court by the defendant does not permit of notice of acceptance being given, the plaintiff may apply for such costs without giving such notice.

(5)Where the plaintiff has not given notice of acceptance in accordance with paragraph (1), he may nevertheless accept the money paid into court at any time before the case is called on and opened, subject to the payment of any costs which may have been reasonably incurred by the defendant since the date of payment into court, and which may be allowed by the court.

(6)In default of acceptance by the plaintiff the action may proceed.

(7)Where money is paid into court without a denial of liability, or under a defence of tender, and the action proceeds, the sum paid into court shall be included for the purpose of calculating the amount on which any costs allowed to the plaintiff are to be charged; but if the plaintiff recovers more than the sum so paid, judgment shall be obtained and entered only for the additional amount recovered and the fees and costs so allowed; and in any such case the words “in addition to the sum of $................. paid into court by the defendant” shall be added to the first paragraph of the form of judgment in the Appendix.

10. 2Payment by plaintiff in answer to counterclaim

A plaintiff may, in answer to a counterclaim, pay money into court in satisfaction thereof, subject to the like conditions and rules as to costs, notice and otherwise as upon payment into court by the defendant.

11. 2Fees and costs on payment of amount admitted after deducting set‑off or counterclaim

Where a defendant pays into court any sum admitted by him to be due, after deducting any amount claimed by him as a set‑off or counterclaim, he must pay into court, in respect of the court fees and solicitor’s costs (if any) entered on the summons, a sum proportionate to the amount paid in in respect of the plaintiff’s claim.

12. 2Acceptance of money paid into court under defence of tender — costs

Where a defendant pays money into court under a defence of tender, the plaintiff may accept the same in satisfaction of his claim in accordance with rule 9; but he shall not be entitled to take out of court the amount so accepted, nor to any costs, without the order of the magistrate; and the magistrate may make such order as may be just as to the costs of either party, and may order any costs awarded to the defendant to be deducted from such amount and paid to the defendant.

13. 2Money paid in to abide trial

Where a defendant pays into court a sum less than the sum claimed, with or without a denial of liability, and the plaintiff does not accept the same in satisfaction of his claim, the money shall not be paid out until after the trial and judgment; and if the plaintiff recovers less than the amount paid into court, the balance of such amount shall be repaid to the defendant, unless the magistrate otherwise orders, and the magistrate may order any costs awarded to the defendant to be set off against the amount recovered by the plaintiff; and if the amount is paid into court with a denial of liability, and the defendant succeeds, the whole amount paid into court shall be repaid to him, unless the magistrate otherwise orders.

14. 2Payment to plaintiff instead of into court

(1)Where money is paid to the plaintiff instead of being paid into court, the provisions of rule 9 apply mutatis mutandis.

(2)If the action proceeds, the sum paid to the plaintiff shall be included for the purpose of calculating the amount on which any costs allowed to the plaintiff are to be charged; but if the plaintiff recovers more than the sum so paid, judgment shall be entered only for the additional amount recovered and for the fees and costs so allowed to the plaintiff; and if the plaintiff recovers no more than the sum so paid, the magistrate may order him to pay to the defendant the costs incurred by him after such payment.

15. 2Payment out where plaintiff under disability

(1)Where money has been paid into court in an action by an infant under the age of 18 years, or person of unsound mind, it shall not be paid out of court except in pursuance of an order of a magistrate; and in making such order the magistrate shall have regard to the interests of the plaintiff under disability, and may make any order he may think just as to the disposal or investment of the money for the use of the plaintiff.

(2)This rule does not apply to any case in which an infant under the age of 18 years sues as if he were of full age for money due to him for wages or piecework, or for work or services as a clerk, servant, mechanic or labourer pursuant to section 57 of the Act.

16. 2Transmission of money from one court to another

(1)A party to an action may pay money into a foreign court for transmission to a home court.

(2)The clerk of the foreign court shall forthwith after the receipt thereof forward the amount paid in to the clerk of the home court in the manner in which remittances between courts are forwarded, and the said clerk shall not be responsible for any delay in the receipt thereof by the clerk of the home court whereby further costs are incurred by the party so paying in.

Order 10  Defence, pre‑trial conference, notice of trial, and default of defence

[Heading amended in Gazette 27 November 1987 p.4255.]

1. 2Notice of defence

(1)Notice of defence shall be according to the form of notice of defence appearing on the form of summons, and, subject to rule 1A, shall be accompanied by the appropriate fee set out in the Table of Court Fees in the Appendix.

(2)The form of notice of defence referred to in subrule (1) shall contain the address for service of proceedings of the defendant, or if a solicitor files the notice of defence, the address for service of that solicitor; but where a defendant appears in person the address for service shall be either his residence or place of business as provided for in Order 6, rule 4.

[Rule 1 of Order 10 amended in Gazette 4 December 1981 p.4976; 7 December 1984 p.4020.]

1A. 2Claims referred to Small Claims Tribunal

(1)Where a defendant — 

(a)is sued with respect to an issue in dispute which is the subject of a claim referred to a Small Claims Tribunal; and

(b)files a certificate issued under section 17 of the Small Claims Tribunals Act 1974 in relation to that claim before or at the time of filing a notice that he intends to defend the action,

no fee is payable for the filing of the notice of defence.

(2)Where a defendant files a certificate referred to in subrule (1) and subsequently withdraws the claim before the Small Claims Tribunal the clerk may require the defendant to pay the prescribed fee for the filing of a notice of defence.

[Rule 1A of Order 10 inserted in Gazette 7 December 1984 pp.4020‑1.]

2. 2Notice of trial — dismissal for want of listing

(1)After notice of defence has been given in accordance with section 46(1) of the Act the clerk shall give to all parties to the action the notice in form number 50 in the Appendix accompanied — 

(a)in the case of an action for a small debt, by a copy of any reasons or particulars given by the defendant with his notice of defence; and

(b)in the case of an action where a certificate referred to in rule 1A has been filed, by a notice in form number 50A in the Appendix.

(2)Any party upon receipt of the notice referred to in subrule (1) or in rule 7A of Order 8 may — 

(a)within 14 days after being given that notice request a pre‑trial conference by filing with the clerk a request in form number 50C in the Appendix; or

(b)apply to the clerk to list the action for trial by filing with him an application in form number 51 in the Appendix, together with — 

(i)a certificate of readiness in form number 50B in the Appendix unless the requirement for such a certificate has been dispensed with; and

(ii)the hearing fee if the person applying to have the action listed is the plaintiff and the action is not an action for a small debt.

(3)Upon receipt of an application under subrule (2)(b) or rule 2A(2), and if applicable, the certificate of readiness and the hearing fee the clerk shall, unless a direction to hold a pre-­trial conference has been given, give notice of trial as prescribed by subrule (4) or rule 2A(3).

(4)A notice of trial shall be in form number 52 in the Appendix and shall be at least 14 days’ notice.

[Rule 2 of Order 10 inserted in Gazette 27 November 1987 p.4255.]

2A. 2Pre‑trial conference

(1)Where a request has been made under rule 2(2)(a) and a magistrate has directed under section 45B(2) of the Act that a pre‑trial conference be held the clerk shall give all parties a notice in form number 50D in the Appendix.

(2)After a pre‑trial conference any party may apply to the clerk to list the action for trial by filing with him an application in form number 51 in the Appendix together with a certificate of readiness, if required, and such hearing fee, if any, as is applicable under rule 2.

(3)A notice of trial under this rule shall comply with rule 2(4).

(4)The clerk shall ensure that notes of anything said or done at a pre‑trial conference in relation to an action are kept on a file which is separate from the file which is used by the court during the trial or hearing of that action.

[Rule 2A of Order 10 inserted in Gazette 27 November 1987 p.4255.]

3. 2Service of notices by post, telegram or personal delivery

Notice of defence and of trial may be given or served by post or telegram, or personal delivery.

4. 2Default of defence

(1)The plaintiff may apply for final judgment pursuant to section 46(2)(a) of the Act, by filing with the clerk the praecipe for entry of judgment in the form number 52 in the Appendix.

(2)Subject to the Act, if the defendant makes default in giving notice of defence, the plaintiff may set the action down for trial or assessment of damages, and notice of trial or assessment of damages shall be given to the defendant, and such judgment shall be given as the court shall consider the plaintiff entitled to.

5. 2Notice of assessment of damages

Notice of assessment of damages shall be according to the form prescribed for notice of trial, with the necessary alterations, and subject to section 46(2)(c) of the Act the rules applicable to length and service of notice of trial shall apply thereto.

6. 2Time for which notice to be screened for defendant in default

The length of time during which any notice or document intended for a defendant who has not given notice of defence shall be screened or exhibited under section 46(2)(c) of the Act shall be 3 days.

7. 2Where plaintiff sues on behalf of others

Where a plaintiff sues on behalf of or for the benefit of others having the same interest, the defendant may avail himself of any defence in respect of each of the persons in whose behalf or for whose benefit the plaintiff so sues which he would have had against such person if he had been plaintiff.

8. 2Set‑off and counterclaim

A defendant in an action may set off, or set up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sounds in damages or not, and such set‑off or counterclaim shall have the same effect as a cross action, so as to enable the magistrate to pronounce a final judgment in the same action, both on the original and on the cross claim.

9. 2Objection by plaintiff under section 34(2)

When the plaintiff objects in writing under the powers given by section 34(2) of the Act to the court giving any relief on any counterclaim exceeding that which the court would have jurisdiction to give independently of that section, he shall give notice in writing of his objection to the clerk and to the defendant, according to the form in the Appendix, within such time after receipt of notice of the counterclaim as would be allowed him under Order 5 rule 9 for giving notice of defence, if he were a defendant in a plaint. The plaintiff may, at the time of giving notice of objection, also give notice that he will, on the day fixed for the trial, apply to the magistrate to adjudicate upon the original claim (if not admitted), subject to such order as the magistrate may make for the stay of execution or otherwise in reference thereto.

[Rule 9 of Order 10 amended in Gazette 21 January 1965 p.894.]

10. 2In action for recovery of possession, any person not named as a defendant may, by leave, appear

In an action for the recovery of possession of land any person not named as a defendant in the summons may by leave of the magistrate be allowed to appear and defend on filing, 5 clear days at least before the return day, an affidavit together with as many copies thereof as there are plaintiffs and defendants, showing that he is in possession either by himself or his tenant of the property or some part thereof mentioned in the particulars (such part being described in the affidavit with reasonable certainty); and upon such affidavit being filed and leave given, the clerk shall enter the name, address, and description of the person filing the affidavit in the plaint book as a defendant in addition to the name of every person originally made defendant, and shall, 3 clear days at least before the return day, give notice, according to the form in the Appendix, by post or otherwise, to the plaintiffs and the original defendants, that the person filing the affidavit has filed the same, and will appear and defend at the trial of the action, annexing to each notice a copy of the affidavit. In all subsequent proceedings in the action the person filing the affidavit shall be named as a defendant.

11. 2In action for recovery of possession, defendant may give notice that he will limit his defence to part of the property

In an action for the recovery of possession of land any defendant may, 5 clear days at least before the return day, file with the clerk a notice in writing, together with a copy for the plaintiff, according to the form in the Appendix, that he intends to limit his defence to a part only of the property mentioned in the particulars, describing that part in such notice with reasonable certainty; and the clerk shall, 3 clear days at least before the return day, send the copy of such notice by post to the plaintiff.

12. 2Where one of several persons jointly answerable is sued

Where a plaintiff avails himself of the provisions of section 54 of the Act, and does not proceed against all of several persons jointly answerable, every defendant sued may avail himself of any defence or counterclaim to which he would have been entitled if all the persons liable were made defendants.

13. 2Misjoinder of plaintiffs not to defeat counterclaim

Where in an action any person has been improperly or unnecessarily joined as a co‑plaintiff, and a defendant has set up a set‑off or counterclaim, he may obtain the benefits thereof by establishing his set‑off or counterclaim as against the parties other than the co‑plaintiff so joined, notwithstanding the misjoinder of such plaintiff or any proceeding consequent thereon.

14. 2Disclaimer, admission, and other statements by defendant

A defendant in any action or matter may file a statement disclaiming any interest in the subject matter thereof, or admitting or denying any of the statements in the plaintiff’s particulars, or raising any question of law on such statements without admitting the truth thereof; or he may state concisely any new fact or document upon which he intends to rely as a defence, or which he intends to bring to the notice of the court; and a copy of such statement shall be filed therewith, and such copy shall be transmitted by the clerk to the plaintiff: Provided always, that in exercising his discretion as to costs the magistrate shall consider the fact of a defendant having or not having availed himself of the powers given by this rule. This rule shall apply to a plaintiff who is defendant by counterclaim.

15. 2Notice to be given of special defence

Where a defendant intends to rely on any of the grounds of defence mentioned in rules 17, 18, 19, 20, 21, 22 and 23, or upon any set‑off or counterclaim, he shall file, in duplicate, with his notice of defence, a notice stating thereon his name and address, together with a concise statement of such grounds of defence, or of his set‑off or counterclaim; and the clerk shall, thereupon, within 24 hours after receiving the same, transmit by post one copy of such notice and statement to the plaintiff: Provided that in case of non‑compliance with this and the abovementioned rules, and of the plaintiff’s not consenting at the trial to permit the defendant to avail himself of such defence, set‑off, or counterclaim, the magistrate may, on such terms as he may think fit, adjourn the trial of the action to enable the defendant to give such notice.

16. 2Set‑off or counterclaim

Where a defendant intends to rely on a set‑off or counterclaim against any of the claims of the plaintiff, his statement shall contain particulars of such set‑off or counterclaim and mutatis mutandis the provisions of Order 5 shall apply to such particulars.

17. 2Infancy

Where a defendant intends to rely on the defence of infancy, he shall, in his statement, set forth, so far as he is able, the place and date of his birth.

[18.Repealed in Gazette 30 June 2003 p.2614.]

19. 2Statute of Frauds

Where a defendant intends to rely on the defence of the Statute of Frauds or The Sale of Goods Act 1895 (section 4), his statement shall state that the requirements of the statute have not been complied with.

20. 2Statute of limitations

Where a defendant intends to rely on the defence of any statute of limitations, his statement shall state that the claim for which he is summoned is barred by a statute of limitations.

21. 2Bankruptcy

Where a defendant intends to rely on the defence of a discharge or release under any statute relating to bankruptcy or insolvency, he shall, in his statement, set forth the date and particulars of his discharge or release.

22. 2Equitable relief

Where a defendant claims to be entitled as matter of defence to any equitable estate or right, or to relief on any equitable ground against the claim of the plaintiff, or any part thereof, he shall, in his statement, show concisely the circumstance which give rise to such defence, and set forth separately each of the grounds of equitable defence.

23. 2Tender

Where the defence is a tender, such defence shall not be available unless, at the time of filing the notice of such defence, the defendant makes payment into court (which may be without costs) of the amount alleged to have been tendered.

24. 2Notice of defence to counterclaim

Where in answer to a counterclaim the plaintiff intends to rely on any of the defences mentioned in rules 16, 17, 18, 19, 20, 21, 22 and 23, he shall file notice thereof in accordance with the said rules. All the provisions of rule 15, mutatis mutandis, shall apply to such notice, provided that such notice shall be deemed to be duly given if filed in duplicate at least 3 clear days before the return day.

25. 2Where counterclaim affects other persons

Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff along with any other person, he may apply to the court under Order 16, rule 2, to add the name of such person as a party to the counterclaim; and that rule, and the other provisions of Order 16, and rule 24 of this Order, shall apply to a person made defendant to a counterclaim in the same manner as to a person made defendant to an action, or to a plaintiff made defendant to a counterclaim.

Order 11  Affidavits

1. 2Form of affidavits

All affidavits shall be expressed in the first person, and shall be drawn up in paragraphs and numbered, and shall be in accordance with sections 98A and 99 of the Evidence Act 1906.

2. 2Sources of knowledge to be stated

All affidavits, other than those for which forms are given in the Appendix, shall state the deponent’s full name, occupation and place of residence, and also what facts or circumstances deposed to are within the deponent’s own knowledge, and what facts or circumstances deposed to are known to or believed by him by reason of information derived from other sources than his own knowledge, and what such sources are.

The costs of every affidavit which unnecessarily sets forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same.

3. 2How affidavits to be intituled

Every affidavit shall be intituled in the action or matter in which it is sworn.

4. 2Affidavits to show on whose behalf filed

It shall be stated in a note at the foot of every affidavit, filed on whose behalf it is so filed, and such note shall be copied on every office or other copy furnished to a party.

5. 2Costs of affidavits when disallowed

The costs of affidavits not in conformity with the preceding rules of this Order may be disallowed on taxation, unless the magistrate otherwise directs.

6. 2Affidavits made by 2 or more deponents

In every affidavit made by 2 or more deponents the names of the several persons making the affidavits shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the abovenamed deponents.

7. 2Filing of affidavits

Before any affidavit is used it shall be filed in the office of the clerk; but this rule shall not hinder a magistrate from making an order in an urgent case upon the undertaking of the applicant to file any affidavit sworn before the making of such order, provided that such order shall not be issued until such affidavit has been filed.

8. 2Affidavits not to be filed if sworn before party’s solicitor

An affidavit shall not be filed which has been sworn before any person who was at the time of the swearing of the same the solicitor acting for the party on whose behalf such affidavit is to be used, or the agent, partner, or clerk of such solicitor, or who is the party himself.

9. 2Erasure, blotting, interlineation etc. in affidavits

No affidavit or other document shall be filed or used in any action or matter, unless the magistrate otherwise orders, which is blotted so as to obliterate any word, or which is illegibly written, or so altered as to cause it to be illegible, or in the body or jurat of which there is any interlineation, alteration, or erasure, unless the person before whom the same is sworn has duly initialled such interlineation or alteration, and in the case of an erasure has re‑written and signed in the margin of the affidavit or document the words or figures appearing to be written on the erasure, or which is so imperfect upon the face thereof by reason of having blanks thereon or otherwise that it cannot easily be read or understood.

10.Illiterate or blind deponent

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

11. 2Use of defective affidavit

The magistrate or clerk may receive any affidavit sworn for the purpose of being used in any action or matter, notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received.

12. 2Affidavits of service

Affidavits of service, when required, shall state when, where, how, and by whom service was effected.

13. 2Notice of rejection of imperfect affidavits or documents

Whenever an affidavit or other document is rejected, the clerk shall give notice, by post or otherwise, to the party offering the same for filing, of such rejection and the reasons thereof; but no such notice shall be necessary if the party offering the same is present when the affidavit or other document is rejected.

Order 12  Proceedings in chambers

1. 2Application made to clerk

All applications in reference to proceedings in chambers must be made to the clerk of the court having cognisance of the matter.

2. 2Affidavits first filed

All affidavits or papers upon which it is intended to move must first be filed with the clerk, and placed before the magistrate by him.

3. 2Form of applications

(1)The application may be made either ex parte or on summons, according to the form in the Appendix. When made on summons, the summons shall be served on the opposite party 2 days at least before the hearing of the application, unless the magistrate or clerk gives leave for shorter notice.

(2)No affidavit in support shall be necessary, unless required by the Act or these rules, but the magistrate or clerk, as the case may be, may, if he thinks fit, adjourn the hearing of the application and order affidavits in support to be filed.

4. 2When summons returnable

Unless otherwise directed by the magistrate, every summons shall be made returnable at the court whence the summons was issued by the clerk at such an hour of the day on which the court sits as the clerk may appoint.

5. 2Magistrate may dispose of business in chambers

Except where otherwise expressly or impliedly provided by statute or by the rules, a magistrate may dispose of such business in chambers as he thinks fit.

6. 2Summons to be signed and sealed

Every application returnable in chambers shall set out in plain and distinct terms the nature of the application to be made, and where the application is in the form of a summons shall be signed and sealed by the clerk of the court in which the action, suit, or proceeding is pending.

7. 2Grounds of application

The grounds of the application shall be stated in an affidavit, which shall be filed before the issue of the process.

8. 2Copies of affidavits to be served

Copies of affidavits intended to be used upon the hearing of any application before a magistrate must be served upon the opposite party before being used and in sufficient time to enable the party served to answer on affidavit any statement which he intends to contest.

9. 2Orders may be absolute or on terms

The magistrate or clerk, upon the hearing or adjourned hearing of the application, may make an order absolute in the first instance, or to be absolute at any time to be ordered by him, unless cause be shown to the contrary, or may make such other order or give such directions as may be just.

10. 2Costs of applications in chambers

(1)The allowance of the costs of and incidental to any application in chambers made under these rules shall be in the discretion of the magistrate or clerk; and no such costs shall be allowed on taxation without special order.

(2)The taxation of costs, when allowed, shall not take place until the general taxation of the costs of the action or matter in which the application is made or the action or matter is determined, unless the magistrate or clerk on the hearing of the application for good cause otherwise orders.

11. 2Special applications in chambers

Where an application is made in chambers in the manner provided by a particular statute and such application does not comply with the provisions of this order the magistrate may make such order as to costs as he is authorised to do by that particular statute.

Order 13 — Claim for contribution or indemnity

1. 2Notice of claim to contribution or indemnity — issue and service

(1)Where in any action a defendant claims as against any other defendant or as against any person not already a party (hereinafter in either case 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 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 subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined as between any of the parties,

the defendant claiming may, subject to these rules, issue and serve a third party notice on the other defendant or person against whom the claim is made.

(2)The notice in the form number 57 in the Appendix shall state the grounds of the claims, the question or issue sought to be determined, and the extent of any relief or remedy claimed and shall be filed and served on the third party in the same manner as a summons is filed and served, and with it shall be served a copy of the summons and of all other pleadings and affidavits up to the time of the bringing in of the third party.

(3)A copy of the notice shall be served on all other parties.

(4)The notice shall be served by the defendant within the time limited for giving notice of defence, or in the case of a defendant to a counterclaim, within the time limited by rule 9 of Order 5, as if the defendant is a defendant to a plaint.

2. 2Third party when served may act as if original defendant

A third party on whom a third party notice has been served may issue a third party notice against any other person as if the third party originally served were a defendant and the successive third party were an original third party and so on in succession, and the provisions of these rules with the necessary modifications shall apply.

3. 2Appearance of third party — default of appearance

If any person served with a notice under the last preceding rule (hereinafter called the third party) desires to dispute the plaintiff’s claim in the action as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, he must appear at the court on any day to which he may have received notice of trial from the clerk or on any day to which he may have received notice from the clerk that the trial has been adjourned or postponed; and in default of his so doing he shall be deemed to admit the validity of the judgment obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the said notice.

Provided that if it appears to the magistrate that the notice of claim has not been served on the third party in time to enable him to appear on the day hereinbefore mentioned, or that for any other sufficient cause the third party is unable to appear on such day, the magistrate may adjourn the proceedings against the third party, or the original action and the proceedings against the third party, on such terms, as to costs and otherwise, as may be just.

4. 2Proceedings on default of the appearance by third party

Where a third party fails to appear on the day mentioned in rule 3, or, if the proceedings are adjourned under that rule, on the day to which the proceedings are adjourned then — 

(a)if judgment in the original action is given in favour of the plaintiff on default of appearance by the defendant, the defendant may at any time, after satisfaction of the judgment against himself, or before such satisfaction by leave of the magistrate, apply to the magistrate to enter judgment against the third party to the extent of the contribution or indemnity claimed in the third party notice, and the magistrate may enter judgment accordingly; or

(b)if the original action is tried, and results in favour of the plaintiff, the magistrate may, on the application of the defendant at or after the trial enter such judgment as the nature of the case may require for the defendant giving the notice against the third party: Provided that execution thereon shall not be issued without leave of the magistrate until after satisfaction by such defendant of the judgment against him; or

(c)if the original action is finally decided in favour of the plaintiff otherwise than by trial, the magistrate may, on application by the defendant, order such judgment as the nature of the case may require to be entered for the defendant giving the third party notice against the third party, at any time after satisfaction by the defendant of the amount recovered by the plaintiff against him.

Provided that the magistrate may set aside or vary any judgment entered against the third party under this rule upon such terms as may be just.

5. 2Application for directions — what directions may be given

Any third party, or the defendant in the action, may apply at or before the trial to the magistrate for directions; and the magistrate, upon the hearing of the application, may, if satisfied that there is a question proper to be tried as to the liability of the third party to make the contribution or indemnity claimed, in whole or in part, order the question of such liability as between the third party and the defendant giving the notice to be tried in such manner at or after the trial of the action as the magistrate may direct, and if not so satisfied may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party; or the magistrate may, if it appears desirable so to do, give the third party leave to defend the action upon such terms as may be just, or to appear at the trial and take such part therein as may be just, or he may order such person to be substituted for or to be joined with the defendant in the action, upon such terms as to security or otherwise as may be just, and generally may direct such proceedings to be taken or amendments to be made, and give such directions as he may think proper for having the question most conveniently determined, and as to the mode or extent in or to which the third party shall be bound or made liable by the judgment in the action.

6. 2Costs

The magistrate may decide all questions of costs, as between a third party and the other parties to the action, and may order any one or more to pay the costs of any other or others, or give such directions as to the costs as the justice of the case may require.

Order 14  Interlocutory and interim orders and proceedings

1. 2Where defence is an alleged right to be relieved of a prima facie case of liability

When by any contract a prima facie case of liability is established, and there is alleged as matter of defence a right to be relieved wholly or partially from such liability, the magistrate may make an order for the preservation or interim custody of the subject matter of the litigation, or may order that the amount in dispute be brought into court or otherwise secured.

2. 2Order for sale of perishable articles etc.

The magistrate may, upon the application of any party to any action or matter, make any order for the sale by any person named in such order, and in such manner and on such terms as the magistrate may think desirable, of any goods, wares, or merchandise which may be of a perishable nature or likely to injure from keeping, or which incur charges for food or keep, or which, for any other just and sufficient reason it may be desirable to have sold at once.

3. 2Order for detention, preservation etc.

The magistrate may, upon the application of any party to an action or matter, and upon such terms as may be just, make any order for the detention, preservation, inspection, surveying, measuring, or weighing of any property or thing, being the subject of such action or matter, or as to which any question may arise therein, and may for all or any of the purposes aforesaid authorise any persons to enter upon or into any land or building in the possession of any party to such action or matter, and authorise any samples to be taken, or any observation, plan, or model to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.

4. 2Order for clerk to take deposition of person ordered to weigh, inspect etc.

When an order is made for inspecting, surveying, measuring, weighing, or making experiment, or for taking any sample, or making any plan or model, by any person to be named therein, such order may include an order for the clerk or some other person to be named therein to examine upon oath and take the deposition of the person so named, as to such measure, weight, or inspection, or the correctness of such survey, or the result of such experiment, or the fairness of such samples, or the accuracy of such plan or model, and such order may also empower any or either party to give the deposition so taken in evidence upon any trial or proceeding.

5. 2Order for inquiries or accounts

The magistrate may, after deciding or reserving any question of liability in an action or matter, direct any necessary inquiries or accounts to be made or taken by the clerk, notwithstanding that it may appear that there is some special or further relief sought or some special issues to be tried, as to which it may be proper that the action or matter should proceed in the ordinary manner.

6. 2Application for interlocutory injunction or order

When any party desires before the trial an immediate order upon any of the matters following (that is to say), an order in the nature of any injunction, or for taking any accounts (whether the particulars pursuant to Order 5, rule 17, claim such accounts, or the claim in the particulars involves taking such accounts), or for making any inquiries, he may apply to the magistrate, either in or out of court, upon affidavits setting forth the facts rendering such order immediately necessary; and the magistrate may, upon such application, make such order, and upon such terms, as he may think fit.

7. 2Where specific property other than land is sought to be recovered, but is claimed to be retained under lien or as security

Where an action is brought to recover, or a defendant in his defence seeks, by way of counterclaim to recover, specific property other than land, and the party from whom such recovery is sought does not dispute the title of the party seeking to recover the same, but claims to retain the property by virtue of a lien or otherwise as security for any sum of money, the magistrate, upon being satisfied by affidavit or otherwise of the existence of such lien or security, may order that the party seeking to recover the property be at liberty to pay into court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed, and such further sum (if any) for interest and costs as the magistrate may direct, and that upon such payment into court being made the property be given up to the party seeking to recover it.

8. 2Settlement, signing, sealing, filing, and service of orders under preceding rules

Notwithstanding the provisions of Order 12, the draft of any order applied for under any of the preceding rules of this Order shall be prepared beforehand by the party making the application, and shall be settled by the clerk. When the application is made to the magistrate, the applicant shall present the draft order settled by the clerk to the magistrate for his approval, and the magistrate shall sign the same if he approves thereof, or shall make such alterations as he may deem necessary, and sign the draft as so altered; and the draft so signed shall be transmitted by the applicant to the clerk, who shall seal and file the same, and issue a copy thereof under the seal of the court to the bailiff or the applicant or the applicant’s solicitor for service.

9. 2Deposit by plaintiff may be ordered where defendant resident more than 32 kilometres from court shows defence on merits

Where the residence as well as the place of business (if any) of a defendant is more than 32 kilometres distant from the court in which the plaint is entered, and such court is not the nearest court to the defendant’s residence or to his place of business, he may, with his notice of defence, forward by post to the clerk of such court an affidavit disclosing a good defence upon the merits of the action. The clerk upon receipt of such affidavit, if satisfied that it discloses such a defence, shall forthwith, by notice, according to the form in the Appendix, call upon the plaintiff to deposit in court, within such time as the clerk shall deem reasonable and sufficient and shall specify in the notice, such a sum as the clerk may, having reference to all the circumstances of the case, direct. The clerk shall, where the deposit is made or not made, or the affidavit does not disclose a defence, send notice to the defendant according to such one of the forms in the Appendix as shall be applicable to the case; and where the deposit is not duly made the action shall be struck out.

This rule shall apply mutatis mutandis in favour of a third party as against a defendant.

10. 2Application for order that loss of bill shall not be set up

An application under section 75 of the Bills of Exchange Act 1909 7, in an action or proceeding upon a bill, for an order that the loss of the instrument shall not be set up, may be made to the magistrate at any time before the hearing of the action, on summons in accordance with the next following rule. If not so made, it may, by leave of the magistrate, be made at the hearing. In dealing with any such application, the magistrate shall take into consideration any offer of indemnity proved to have been made on behalf of the applicant, and may grant the application upon such terms as to payment of costs by the applicant, postponement of the trial, and otherwise, as may be just.

11. 2Practice on interlocutory applications

Every interlocutory application shall be made in the manner provided by Order 12 except whereby any statute or by these rules it is expressly or by implication directed to be made otherwise.

12. 2Clerk may refer applications to magistrate

When the application may under the particular statute or rule be made to the clerk, and is so made, the following additional provisions shall apply: 

(1)The clerk may, if in doubt as to the proper order to be made, refer the matter to the magistrate forthwith or at the next court day or at the trial.

(2)The magistrate may vary or rescind any order made by the clerk, and may make such order as may be just, and if necessary adjourn the trial.

13. 2Postponement of trial pending interlocutory proceedings

Where in any action or matter interlocutory proceedings are contemplated or pending which cannot be concluded in time to enable the parties to prepare for the trial of such action or matter on the day fixed for the same, the magistrate may, upon the application of any party, and upon being satisfied that such interlocutory proceedings are necessary and proper, make an order postponing such trial upon such terms as to costs or otherwise as may be just; and such order, if made in the absence of the other party, shall be served upon him.

Order 15 — Security

1. 2Security by bond

Where a party proposes to give a bond by way of security, he shall serve, by post or otherwise, on the opposite party and upon the clerk, at his office, notice of the proposed sureties, according to the form in the Appendix; and the clerk shall forthwith give notice to both parties of the day and hour on which he proposes that the bond shall be executed, and shall state in the notice to the obligee that any valid objection which he may have to make to the sureties or either of them must be made on such day.

2. 2Affidavit of sufficiency

The sureties shall make an affidavit of their sufficiency according to the form in the Appendix, unless the opposite party dispenses with the affidavit.

3. 2Execution of bond

The bond shall be executed in the presence of the clerk, a justice of the peace, or other person authorised by law to administer oaths.

4. 2Deposit in lieu of bond

Where a party makes a deposit of money in lieu of giving a bond, he shall forthwith give notice to the opposite party, by post or otherwise, of such deposit having been made.

5. 2Bond to be deposited

In all cases where the security is by bond, the bond shall be given to the party or persons requiring the security, and shall be deposited with the clerk until the action is finally disposed of.

6. 2Officer of court not to be surety

No clerk, bailiff, or other officer of the court shall become surety in any case where by the practice of the court security is required.

Order 16  Amendment

1. 2Change or addition of plaintiff

Where an action or matter has been commenced in the name of the wrong person as plaintiff or otherwise, or where it is doubtful whether it has been commenced in the name of the right person, the magistrate, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, may order any other person to be substituted or added as plaintiff or otherwise upon such terms, as to notice and otherwise, as may be just.

2. 2Action not to be defeated by misjoinder or nonjoinder of parties

(1)No action or matter shall be defeated by reason of the misjoinder or nonjoinder of parties, and the magistrate may deal with the matter in controversy as regards the rights and interests of the parties actually before him.

(2)The magistrate may at any stage of the proceedings, either upon or without the application of any party, and with or without terms, order that any parties improperly joined be struck out and that any persons who ought to have been joined, or whose presence before him may be necessary in order to enable him effectually and completely to adjudicate upon and settle all the questions involved in the action or matter, be added as parties.

(3)Except as provided by subrule (2) no person shall be added as a plaintiff without his consent in writing.

(4)Every party added as defendant shall be served with a notice in manner hereinafter mentioned, or in such manner as may be prescribed in any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such notice.

3. 2Where too few persons made plaintiffs

Where it appears at the trial that a less number of persons have been made plaintiffs than is by law required, the name of any omitted person may, at the instance of either party, be added, by order of the magistrate, on such terms as he may think fit, and thereupon the action shall proceed, in all respects, as if the proper persons had been originally made parties; and if such person, either at the trial or at some adjournment thereof, personally or by writing, consents to become a plaintiff in manner aforesaid, the magistrate may then pronounce judgment as if such person had originally been made a plaintiff; but if such person does not consent to become a plaintiff in manner aforesaid, either at the trial or at the adjournment thereof, the action or matter shall be struck out.

4. 2Change of defendant

Where a person other than the defendant appears at the trial, and admits that he is the person whom the plaintiff intended to sue, or ought to have sued, his name may be substituted for that of the defendant, if the plaintiff consents; and thereupon the action shall proceed, in all respects, as if such person had been originally named in the summons; and the costs of the person originally named as the defendant shall be in the discretion of the magistrate.

5. 2Where party wrongly sues or is sued in representative character

Where a party sues or is sued in a representative character, but it appears that he ought to have sued or been sued in his own right, the magistrate may, at the instance of either party, on such terms as may be just, amend the proceedings accordingly; and thereupon the action shall proceed, in all respects, as if the proper description of the party had been given in the summons.

6. 2Where party ought to have sued or been sued in representative character

When a party sues or is sued in his own right, but it appears that he ought to have sued or been sued in a representative character, the magistrate may, at the instance of either party, on such terms as may be just, amend the proceedings accordingly; and thereupon the action shall proceed, in all respects, as if the proper description of the party had been given in the summons.

7. 2Amendment of proceedings

The magistrate may at any time before or after judgment and on such terms as to costs or otherwise as he may think just, amend any defect or error in the proceedings, including the names of the parties thereto, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.

8. 2Where all defendants have not been served

Where 2 or more persons are made defendants and some of them have not been served, the names of the defendants who have not been served may, at the instance of either party, be struck out by order of the magistrate, on such terms as may be just; and thereupon the action shall proceed, in all respects, as if the parties whose names have not been struck out had alone been made defendants; or the action may be adjourned for service upon any defendant not served.

9. 2Notice to an added or substituted defendant

Where a defendant is added or substituted, except where a defendant is substituted under rule 4, an order shall be drawn up; and such order shall be served on the defendant, together with a copy of the summons, and a notice according to the form in the Appendix as to the day upon which he is to attend at the court, according to the rules applicable to the service of the original summons in the action.

10. 2Amendment of particulars and notice of defence

A plaintiff may file and deliver amended particulars of demand, and a defendant, whether by original action, counterclaim, or otherwise, may file and deliver an amended notice or particulars of any special defence set up or intended to be set up by him under Order 10, rule 15, at any time before the return day, without obtaining any order for the purpose; but the magistrate at the trial, if satisfied that the opposite party has not had a reasonable opportunity of preparing his case to meet any new matter introduced by such amendment, or for any sufficient cause, may disallow the amendment, or may adjourn the trial, and may make such order as to costs as he may think fit.

11. 2Abandonment of part of claim

The plaintiff may at any time before an action or matter is called on for trial, or in opening his case when called on, abandon any part of his claim, and such abandonment shall be entered on the particulars (if any), and in the minute book: Provided that, if the defendant succeeds, the magistrate may allow him costs on the scale which would have been applicable to the amount originally claimed; and in any case the magistrate may allow the defendant any costs properly incurred by him in respect of that part of the plaintiff’s claim which is abandoned.

12. 2Powers of clerk as to amendment when acting under sections 76 and 77

The clerk, when acting under the provisions of sections 76 and 77 of the Act, shall have the same power as the magistrate has of amending the proceedings in any action or matter.

13. 2Amendment of particulars where plaintiff entitled to more than amount claimed

Where upon taking an account or otherwise, it appears that the plaintiff is entitled to recover an amount larger than that mentioned in the particulars, but not exceeding $25 000, he may, by leave of the magistrate, and on payment of the difference (if any) between the fees payable on the amount so mentioned and those payable on the larger amount amend his particulars so as to claim such larger amount, and thereupon judgment may be entered for the same.

[Rule 13 of Order 16 amended in Gazette 12 November 1982 p.4450; 27 November 1987 p.4254; 26 January 1993 p.840.]

14. 2Where plaintiff in case of account found entitled to more than $25 000

Where upon taking an account it appears that the plaintiff is entitled to a larger amount than $25 000 and he has not, by his particulars, abandoned the excess over $25 000, he may, by leave of the magistrate, abandon such excess, and thereupon judgment may be entered for $25 000; and if the plaintiff does not abandon such excess, the action shall be struck out.

[Rule 14 of Order 16 inserted in Gazette 12 November 1982 p.4450; amended in Gazette 27 November 1987 p.4254; 26 January 1993 p.840.]

15. 2Correction of clerical mistakes and omissions

Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the magistrate either ex parte or on application made in the manner prescribed by these rules.

Order 17 — Discovery and inspection

1. 2Discovery of documents

An order made under section 66 of the Act directing any party to an action or matter to make discovery on oath of the documents which are or have been in his possession or power relating to the matters in dispute shall be according to the form in the Appendix, and shall specify the time within which the affidavit in answer is to be filed.

2. 2Objection to discover documents

The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which, if any, of the documents therein mentioned he objects to produce, and on what grounds, and it shall be according to the form in the Appendix, with such variations as circumstances may require. Such affidavit shall be filed, and a copy thereof delivered to the party who obtains the order within the time named in the order.

3. 2Production of documents

The magistrate may, at any time during the pendency of any action or matter, order the production upon oath, by any party thereto, of such of the documents in his possession or power relating to any question in such action or matter as the magistrate may direct; and the magistrate may deal with such documents, when produced, in such manner as may be just.

4. 2Notice under section 67

Notice to any party to produce any documents under section 67 of the Act shall be according to the form in the Appendix, with such variations as circumstances may require.

5. 2Time within which inspection to be given — place of inspection

The party to whom such notice is given shall, within 2 days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit as is mentioned in rule 2, or if any of the documents referred to in such notice have not been set forth by him in any such affidavit, then within 4 days from the receipt of such notice deliver to the party giving the same a notice stating a time within 3 days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, or in the case of banker’s books or other books of account, or books in constant use for the purposes of any trade or business, or in case the party is not acting by a solicitor, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what grounds. Such notice shall be according to the form in the Appendix, with such variations as circumstances may require.

6. 2Order for inspection

(1)If any party served with notice omits to give notice of a time for inspection, or objects to give inspection, or offers inspection elsewhere than is provided by rule 5, the magistrate may, on the application of the party desiring it, make an order for inspection at such place and in such manner as the magistrate may think fit: Provided that the order shall not be made when and so far as the magistrate is of opinion that it is not necessary either for disposing fairly of the action or matter, or saving costs.

(2)Any application to inspect documents, except such as are referred to in the particulars, notices, or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The magistrate shall not make an order for inspection of such documents when and so far as he is of opinion that it is not necessary either for disposing fairly of the action or matter, or for saving costs.

7. 2Actions against or by sheriff or bailiff

In an action against or by a sheriff or bailiff, or other officer discharging the like functions, in respect of any matters connected with the execution of his office, the magistrate may, on the application of either party, order that the affidavit to be made in answer to an order for discovery shall be made by the officer actually concerned.

8. 2Verified copies

When inspection of any business books is applied for the magistrate may, if he thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, 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 magistrate may order inspection of the book from which the copy was made.

9. 2Privilege

Where on an application for an order for inspection privilege is claimed for any document, the magistrate may inspect the document for the purpose of deciding as to the validity of the claim of privilege.

10. 2Inquiry as to present or past possession of specified documents

The magistrate may, on the application of any party to an action or matter at any time, and whether an affidavit of documents has or has not been already ordered or made, make an order requiring any other party to state by affidavit whether any specific documents, to be specified in the application, are or have at any time been in his possession or power; and if not then in his possession, when he parted with the same, and what has become thereof. Such application shall be made on affidavit stating that in the belief of the deponent the party against whom the application is made has or has at some time had in his possession or power the documents specified in the application, and that they relate to the matters in question in the action or matter, or to some of them.

11. 2Premature discovery

If a party from whom discovery of documents or inspection is sought objects to the same or any part thereof, the magistrate may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the action or matter, or that for any other reason it is desirable that any issue or question in dispute in the action or matter should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

12. 2Order to apply to infants

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

Order 18  Interrogatories

1. 2Discovery by interrogatories

A party may give notice in writing to any other party requiring him to answer specified interrogatories relating to any matter in issue.

2. 2Grounds of objection to answering interrogatories

A party may object to answer an interrogatory on all or any of the following grounds — that it is — 

(a)irrelevant;

(b)scandalous or indecent;

(c)vexatious or oppressive;

(d)not bona fide required for the purpose of the litigation;

(e)not sufficiently material at that stage;

(f)inadmissible under the laws of evidence:

Provided that interrogatories which do not relate to any matters in issue shall be deemed irrelevant notwithstanding that they might be admissible on the cross‑examination of the witness.

3. 2Voluntary compliance with request

(1)If the party making the requisition for answers to interrogatories so elects in the notice the answers may take the form of an unsworn statement of the person answering, which shall be attested by the solicitor for the party interrogated or by some other person authorised by the Supreme Court to take affidavits.

(2)A party or person wilfully making a false statement in answer to an interrogatory shall be guilty of a contempt of court.

(3)If the party making the requisition does not agree to accept the statement then the answers to interrogatories shall be made on affidavit.

4. 2Compulsory compliance — application for order and proceedings thereon

(1)If the party requested to answer interrogatories neglects or refuses to do so within the time prescribed or such extended time as may be agreed by the parties; or shall answer interrogatories or any of them evasively or insufficiently, the party making the request may apply to the magistrate for an order to compel compliance with the requisition of the notice. The summons in support of the application shall state the reason for the making of the application.

(2)No affidavit shall be necessary in support of any application for answers to interrogatories.

(3)If the magistrate is satisfied that no legitimate objection exists under rule 2 he may make an order for answers to the interrogatories, or for further or better answers as the case may require.

(4)The party against whom an order is obtained shall pay the costs of the application unless the magistrate on good cause shown shall order otherwise.

(5)If the magistrate is satisfied that there is a legitimate objection under rule 2 he may refuse the application or grant it as to particular interrogatories or adjourn the application wholly or in part.

(6)Without limiting the generality of the preceding subrule, if the magistrate is satisfied that the right to answers to interrogatories depends on the determination of any issue or question in dispute or that for any other reason it is desirable that any issue or question in dispute should be determined before deciding such right he may order the issue or question to be determined first and reserve the application for further consideration.

5. 2Onus of proof where alleged evasive or insufficient answers to interrogatories

Where it is alleged that a party has answered an interrogatory evasively or insufficiently, the party alleging may, if he can, demonstrate the evasion or insufficiency by the form of the answer to the question; and in cases where it cannot be so demonstrated, the onus shall lie on the party alleging to adduce evidence of reasonable grounds for suspecting such evasion, or failure.

6. 2Contested claim of privilege

Any objection to answering one or more of several interrogatories may be taken by affidavit setting out the grounds of objection.

7. 2Statements and affidavits — by whom made

Any statement or affidavit in answer to interrogatories or any affidavit of objection to interrogatories may be made as follows: 

(a)by the party;

(b)where the party is the Crown or an officer of the Crown sued or suing in his official capacity — by some officer of the Crown having personal knowledge of the facts;

(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 some member or officer of the corporation or body having knowledge of the facts;

(d)where the party is not sui juris — by his next friend, guardian ad litem, or committee, as the case may be,

and in the case of an order against any party to which paragraph (b) or (c) or (d) applies the order shall specify the person who is to comply with the order on behalf of the party.

8. 2Effect of non‑compliance with order

If any party fails to comply with any order to answer interrogatories, he shall be liable to the penalties provided by section 155 of the Act. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended; and the party who obtained the order may apply to the magistrate for a further order to that effect and an order may be made accordingly.

9. 2Order for interrogatories may be served on solicitor

Service of an order for interrogatories made against any party on his solicitor shall be sufficient service to make the party liable to the penalties provided in section 155 of the Act for disobedience to the order. But the party liable may show to the magistrate that he has had no notice or knowledge of the order.

10. 2Solicitor neglecting to give notice to client may be liable

A solicitor upon whom an order against any party for interrogatories is served under the last preceding rule, who neglects without reasonable excuse to give notice thereof to his client shall be liable to the same penalties as are provided in rule 8 as if he was the party failing to comply with the order.

11. 2Use in evidence of answers to interrogatories

Any party may use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer: Provided always that in such case the magistrate may look at the whole of the answers and if he shall be of the opinion that any others of them are so connected with those put in that the last‑mentioned answers ought not to be used without them he may direct them to be put in.

12. 2Actions against or by sheriff or bailiff

In an action against or by a sheriff or bailiff, or other officer discharging the like functions, in respect of any matters connected with the execution of his office, the court may, on the application of either party, order that the affidavit to be made in answer to interrogatories shall be made by the officer actually concerned.

13. 2Costs of improper interrogatories

In adjusting the costs of the action or matter inquiry shall, at the instance of any party, be made into the propriety of exhibiting interrogatories, and if it is the opinion of the clerk on taxation, or of the magistrate, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.

14. 2Costs on order and security for costs

(1)In granting any application for an order under the preceding rules of this Order, the magistrate may order the party applying to give security for any costs which may be incurred by the other party in complying with the order, and may fix the sum of the costs.

(2)An order for discovery by interrogatories shall state the amount ordered to be paid into court, or that payment into court is dispensed with; and where payment into court is ordered the party seeking discovery shall, with his interrogatories, serve a copy of the receipt for the payment into court, and the party from whom discovery is sought shall not be bound to answer, unless and until the said copy has been served.

15. 2Payment out of amount paid in as security

Unless the court otherwise orders, the amount paid in under the last preceding rule in any action or matter shall after the action or matter has been finally disposed of, be paid out to the party by whom the same was paid in, on his request, or to his solicitor on such party’s written authority, except in the event of his being ordered to pay costs, in which case the amount in court shall be subject to a lien for the costs ordered to be paid to any other party: Provided that, if after the action or matter has been finally disposed of, by consent or otherwise, no taxation of costs is required, the clerk shall, by consent of the parties, or on being satisfied that the party by whom the amount was paid in is entitled thereto, pay out the same to such party, or to his solicitor on such written authority as aforesaid.

16. 2Order to apply to infants etc.

This order shall apply to infants and their next friends and guardians ad litem, and to the next friends, guardians ad litem, or committees of lunatics or persons of unsound mind.

Order 19  Change of parties by death, etc.

1. 2No abatement caused by death etc.

An action or matter shall not become abated by reason of the marriage, death, or bankruptcy of any of the parties, or the execution of any statutory deed of assignment by any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite, but may be carried on under the order of the magistrate as hereinafter provided; and, whether the cause of action survives or not, there shall be no abatement, by reason of the death of either party, between the finding of the issues of fact and the judgment, but judgment may in such case be entered, notwithstanding the death.

2. 2Order to carry on proceedings

Where, by reason of marriage, death, bankruptcy, or statutory assignment or by any other assignment or transaction or any other event whatsoever made entered into or occurring after the commencement of a cause or matter, and causing a change, transfer, creation, devolution, or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the action or matter, it becomes necessary or desirable that any person not already a party should be made a party or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties and such new party or parties may be obtained ex parte on application to the magistrate, upon an allegation of such change, transfer, creation, devolution, or transmission of interest or liability, or of such person interested having come into existence.

3. 2Form and service of order

An order obtained as in the last preceding rule mentioned may be according to the form in the Appendix, and shall, unless the magistrate shall otherwise direct, be served upon the continuing party or parties, other than any party at whose instance the order has been made, and also upon any new party not being the applicant, and the order shall from the time of such service, subject nevertheless to the succeeding rules of this Order, be binding on the persons served therewith. Such order may limit the time for giving notice of defence, fix the time for the trial or for the continuation of any proceedings, provide for any adjournment that may be advisable and may make such other provisions for the disposal of the action or matter as may be just.

4. 2Application for discharge of order

Where any person not already a party to the action or matter is served with such order as is mentioned in the 2 last preceding rules, such person may, within 7 days from the service of the order apply to the magistrate to discharge or vary such order.

5. 2Provision for cases in which person entitled to proceed does not do so

When the plaintiff or defendant in the action or matter dies, and the cause of action survives, but the person entitled to proceed fails to proceed, the defendant (or the person against whom the action or matter may be continued) may apply to the magistrate for an order directing the plaintiff (or person entitled to proceed) to proceed within such time as may be ordered; and in default of such proceeding the action or matter may be struck out, and the magistrate may award costs to the defendant, or, as the case may be, to the person against whom the action or matter might have been continued, in the same manner as in other cases of striking out; and in such case, if the plaintiff has died, execution may issue for such costs as provided by Order 25, rule 11.

6. 2Alteration of records after addition of party

Where a plaintiff or defendant is substituted or added under any of the rules of this Order, the minute book shall be altered, and all subsequent proceedings shall be carried on under the altered title.

7. 2Appointment of guardians

The magistrate may, for the purposes of this order, appoint a guardian ad litem in any proceeding to any person under disability, at the instance of any party to the proceeding or of any person acting on behalf of the person under disability.

8. 2Persons under disability

Where any person is under such disability that an action or matter, in which he has been served with such an order as is mentioned in rules 2 and 3, could not be carried on against him without the appointment of a guardian ad litem and no such guardian has been appointed, then application to discharge or vary such order may be made at any time within 7 days from the appointment of a guardian, and until the expiry of such period the order shall have no force or effect as against such person.

Order 20  Evidence

1. 2Evidence to be taken orally

Except where otherwise provided by these rules, the evidence of witnesses on a trial of any action or hearing of any matter shall be taken orally on oath; and where by these rules evidence is required or permitted to be taken by affidavit, such evidence shall nevertheless be taken orally on oath if the magistrate, on any application before or at the trial or hearing, so directs.

[Rule 1 of Order 20 amended in Gazette 28 January 1983 p.320.]

2. 2Power to order particular facts to be proved by affidavit, or witnesses to be examined before examiner

The magistrate may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the trial or hearing, on such conditions as he may think reasonable, or that any witness whose attendance in court ought for some sufficient cause to be dispensed with be examined before an examiner; provided that, where it appears to the magistrate that the other party bona fide desires the production of a witness for cross‑examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

3. 2Summonses to witnesses and service

Summonses to witnesses may be issued without leave, and served by the party applying for the same or by his solicitor, or by the agent or servant of such party or solicitor, but in any case only one name shall be inserted in any such summons. Such summonses shall be according to the form in the Appendix.

4. 2Witnesses may require payment before giving evidence

If any witness who has been summoned to attend shall, before he is sworn, require the magistrate to fix the amount to be paid to him as a witness, the magistrate shall do so, and no witness shall be compelled to give his evidence until the amount so fixed shall have been paid to him or security given to the satisfaction of the magistrate.

5. 2Time and mode of service

(1)It shall be sufficient if a summons to a witness is served within a reasonable time; and such summons may be served by delivering the same to the witness in the same manner as a summons in an action.

(2)Notwithstanding any other provisions in these rules, where the person serving a witness summons on a witness intends to pay or tender payment at the same time of the expenses of that witness in accordance with the Act or these rules, he must effect personal service of the summons on the witness.

5A. 2Enforcement of summons

(1)Orders fining witnesses pursuant to section 63 of the Act, praecipes for warrants to arrest witnesses pursuant to section 64 of the Act, and warrants to so arrest witnesses, shall be according to the forms in the Appendix.

(2)A warrant to arrest a witness pursuant to section 64 of the Act shall not be issued, except by leave of the magistrate, where more than 28 days have elapsed since the magistrate made an order for its issue.

[Rule 5A of Order 20 inserted in Gazette 28 January 1983 p.320.]

6. 2When witness does not produce documents, order for production may be made

Where a witness served with a summons containing a direction for the production of any documents at the trial does not produce the same, the magistrate may, upon admission or proof that the summons was served within a reasonable time, and that such documents are in the possession or power or under the control of the party so served, and that they relate to the matter then pending before him, make an order for their production by the witness, and may deal with them, when produced, and with all costs occasioned by their non‑production as may be just: Provided that nothing herein shall prevent the receiving of secondary evidence where admissible.

7. 2Production of papers on summons by head of Government department etc.

(1)When a witness summons containing a direction to produce books, papers, or writings, is served upon the head of any Government department or sub­-department, public hospital or bank, such books, papers or writings may be forwarded to the clerk of the court in which their production is required.

(2)The production of such books, papers, or writings by such clerk, or any of his officers, upon the trial or hearing of any action or matter, when the production of the said books, papers or writings, shall be formally called for, shall be deemed to be production by the head of the Government department or sub‑department, public hospital or bank, who has been summoned to produce such books, papers, or writings.

(3)At the conclusion of such trial or hearing, the clerk shall, on request, hand out to an officer of the department, sub‑department, public hospital or bank by which it was produced, any such books, papers or writings, put in as an exhibit, unless the magistrate shall otherwise order.

(4)At the time of handing out any such exhibit, the clerk shall obtain an undertaking, signed by the head of the Government department or sub‑department, public hospital or bank by which such exhibit was produced, to return the exhibit to the clerk whenever called upon prior to the final determination of such action or matter.

(5)Where a party to a cause or action requires one of the class of persons described in this rule to attend personally at the trial and produce the books, papers, or writings, the magistrate may order, either before or at the trial, that person to attend and when an order is made the person obtaining the same shall serve the order on the person required to attend in the manner provided for the service of a summons.

8. 2Admission of facts or documents

A notice by any party to an action or matter calling on any other party thereto to admit any factor or document, saving all just exceptions, shall be according to the forms in the Appendix and shall be given not less than 5 clear days before the trial; and if such other party does not, within 3 clear days after receiving such notice, make such admission, in the prescribed form, any expense of proving the same at the trial shall be paid by him, whatever may be the result, unless the court otherwise orders; and no costs of proving any documents shall be allowed unless such notice has been given except in cases where, in the opinion of the magistrate at the trial, or of the clerk on taxation, the omission to give such notice has been a saving of expense.

9. 2Notice to admit or produce

Notices to admit or to produce documents shall be according to the forms in the Appendix, with such variations as circumstances may require.

An affidavit of the party, or his solicitor, or of some clerk or servant of either of them, of the service of any notice to admit or to produce, and of the time when it was served, with a copy of the notice to admit or to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served.

An affidavit of the signature to any admission made in pursuance of such notice shall be in the form in the Appendix.

10. 2Costs of notice to admit or produce

If a notice to admit or produce comprises documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice.

11. 2Documents produced from proper custody to be read without proof unless objected to

Where any documents which would, if duly proved, be admissible in evidence are produced from proper custody they shall be read without further proof, if in the opinion of the magistrate they appear genuine, and if no objection is taken thereto; and if the admission of any documents so produced is objected to, the magistrate may adjourn the hearing for the proof of the documents, and the party objecting shall pay the costs caused by such objection, in case the documents shall afterwards be proved, unless the magistrate otherwise orders.

12. 2Where it is desired to use an affidavit, notice may be given — costs of objection

Where a party desires to use at the trial an affidavit by any particular witness, or an affidavit as to particular facts as to which no order has been made under rule 2 he may, not less than 4 clear days before the trial, give a notice with a copy of such affidavit annexed, to the party against whom such affidavit is to be used; and unless such last‑mentioned party shall, 2 clear days at least before the trial, give notice to the other party that he objects to the use of such affidavit, he shall be taken to have consented to the use thereof, unless the magistrate otherwise orders; and the magistrate may make such order as he may think fit as to the cost of or incidental to any such objection.

13. 2Evidence taken after trial

Evidence taken subsequently to the trial or hearing of any action or matter shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial or hearing.

14. 2Practice as to taking evidence at any stage of action or matter

The practice with reference to the examination, cross‑examination, and re‑examination of witnesses at a trial shall extend and be applicable to evidence taken in any action or matter at any stage.

15. 2Affidavits are evidence of persons using them

Affidavits and depositions shall be read as the evidence of the person by whom they are used.

16. 2Expenses of persons attending before examiner

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

17. 2How depositions taken

The depositions taken before any person appointed to take the examination shall be taken down in writing by or in the presence of the examiner, not ordinarily by question and answer, but so as to represent as nearly as may be the statements of the witness, and when completed shall be read over to the witness and signed by him in the presence of the parties, or such of them as may think fit to attend. If the witness refuses to sign the depositions, the examiner shall sign the same. The examiner may put down any particular question or answer if there appears to be any special reason for doing so, and may put any question to the witness as to the meaning of any answer or as to any matter arising in the course of the examination. Any questions which are objected to shall be taken down by the examiner in the depositions and he shall state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statements in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question.

18. 2Failure to comply with summons, or refusal to be sworn or answer

If any person duly summoned to attend for examination or to produce any document refuses to attend, or if, having attended, he refuses to be sworn or to answer any lawful question or to produce any document, a certificate of such refusal, signed by the examiner, shall be filed with the clerk, and thereupon the party requiring the attendance of the witness may apply to the magistrate for an order directing the witness to attend or to be sworn, or to answer any question, or to produce such document, as the case may be.

19. 2Objection to answer

If any witness objects to any question which may be put to him before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the clerk to be filed, and the validity of the objection shall be decided by the magistrate.

20. 2Witness may be ordered to pay costs

In any case under the 2 last preceding rules, the magistrate may order the witness to pay any costs occasioned by his refusal or objection.

21. 2Filing of depositions

When the examination of any witness before any examiner has been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the clerk to be filed.

22. 2Special report by examiner

The person taking the examination of a witness under these rules may, and if need be shall, make a special report to the court touching such examination and the conduct or absence of any witness or other person thereon; and the magistrate may direct such proceedings and make such order upon the report as he may think just.

23. 2Power to administer oaths

Any officer of the court, or other person directed to take the examination of any witness or person under section 69 of the Act, may administer oaths for the purpose of the examination.

Order 21 — Arbitration

1. 2Arbitration

(a)At any time after an action is commenced, the magistrate may, with the consent of the parties, in cases within the ordinary jurisdiction of the court, or in cases of agreement under section 39 of the Act, make an order for a reference under the provisions of section 92 of the Act; and the provisions in that section contained as to references shall apply to a reference proceeding under such an order.

(b)The same fees shall be paid as would have been payable on entering judgment under a summons, but where any reference is ordered to the clerk of the court the same hearing fee shall be paid as if the action had been tried.

Order 22  Trial

1. 2Actions to be heard in order, with exception

Actions shall be heard in the order in which they stand in the list, unless the magistrate or clerk otherwise orders.

2. 2Right to begin and addresses to court at hearings and trials

(a)Upon the hearing of actions and trials of issue, the right to begin is the same as in the Supreme Court, and the party who begins shall be allowed at the close of his case to address the court a second time for the purpose of summing up the evidence if his opponent does not announce any intention to adduce evidence, and the opposite party shall be allowed to open his case and also to sum up the evidence (if any), and the right to reply shall be the same as in the Supreme Court.

(b)If persons having the same interest are represented by different counsel, the magistrate may in his discretion allow one or more of such counsel to address the court, or to take part in the examination of witnesses.

3. 2Magistrate may request statement of defence before hearing evidence

At the close of the opening of the plaintiff’s case and before any evidence is taken, the defendant, shall, if called upon by the magistrate to do so, by himself or the advocate appearing for him, give a concise statement of his defence to the action and of the points upon which he relies, and he shall not, except by leave of the magistrate, be at liberty to enter upon or to give evidence as to any matter not included in the defence and points so stated, and the provisions of this rule apply mutatis mutandis to defences to counterclaims.

4. 2Where plaintiff does not appear

If, when an action is called on for trial the plaintiff does not appear, and the defendant appears and does not admit the plaintiff’s claim, the magistrate may, in his discretion, award costs to the defendant in the same manner, and to the same amount as if the action had been tried.

5. 2Judgment on counterclaim where plaintiff does not appear

(a)If when an action is called on for trial the plaintiff does not appear, and the defendant has given notice of a counterclaim, he may prove that counterclaim as far as the burden of proof lies upon him, and have judgment accordingly.

(b)Any judgment obtained under this rule may be set aside upon the application of the plaintiff in like manner as a judgment obtained under section 73 of the Act.

6. 2Restoring case struck out for non‑appearance of plaintiff

Where a plaintiff has been non‑suited, or an action or matter has been struck out under section 72 of the Act, the magistrate may on application in chambers order the action or matter to be restored to the list for hearing on the same day or any subsequent day, and may set aside any order awarding costs to the opposite party which may have been made under rule 4, upon such terms as to payment of costs of the day, adjournment of the hearing, notice to the opposite party, and otherwise, as may be just.

7. 2Subsequent action after non‑suit or striking out

If after the magistrate has directed a non‑suit under section 72 or section 90 of the Act, or after an action has been struck out, a subsequent action is brought for the same or substantially the same cause of action before payment of the costs (if any) allowed on non‑suit or striking out, the magistrate may, if he thinks fit, order a stay of subsequent action until those costs have been paid.

8. 2Action pending in another court for same cause

Where at the trial it appears that an action for the same cause at the suit of the same plaintiff is pending in any other court of record, the magistrate shall order the trial to stand adjourned to a certain day, and unless before that day the action in the other court has been discontinued the action shall be struck out.

9. 2Disallowance of vexatious questions in cross‑examination

The magistrate may in all cases disallow any question put in cross‑examination of any party or other witness which may appear to him to be vexatious, and not relevant to any matter proper to be inquired into in the action or matter.

10. 2General jurisdiction of magistrate on trial of action

At the trial the magistrate may try the whole matter of the action and give judgment thereon, or grant any relief, redress, or remedy, or may make any order or give any direction which he may consider necessary to enable final judgment to be given upon a day to which the trial may be adjourned, and may also make such order as to costs as he may think fit.

11. 2Application for injunction

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

An application under this rule may be made — 

(a)before the trial or hearing, or subsequent to the judgment and in either case it shall be made in accordance with Order 14, rule 11; or

(b)at or immediately after the trial or hearing, in which case the order, if any, shall be included in the judgment.

12. 2Inspection of property by magistrate

The magistrate may, in his discretion, inspect any property or thing concerning which any question may arise in any action or matter.

13. 2Absent parties may be added on hearing

Where at the trial it appears to the magistrate that there are claims or rights, or any duties or liabilities, which cannot be disposed of by reason of all the proper parties not being before the court, the magistrate may order such parties as may be necessary to be made plaintiffs or defendants, upon such terms as to adjournment, notices and costs as he may think fit; but no person shall be added as a plaintiff without his consent. Where a defendant is added, the provisions of Order 16, rule 9, shall apply.

14. 2Counterclaim where action stayed, discontinued, or dismissed

If in any case in which the defendant sets up a counterclaim the action of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with.

15. 2Counter or other claim may be ordered to be tried by independent action

In any case of counterclaim or otherwise, or where any incidental claim arises at the trial, if the magistrate thinks that such claim can be better disposed of by an independent action, he may order such claim to be excluded, whether any application for that purpose is made or not.

16. 2When a person brought in does not appear at the trial

If a person not originally a party to the action who has been served with a notice of counter­claim does not appear at the trial, the magistrate may proceed with the trial notwithstanding, and give such judgment or make such order as may be just against the person so served and not appearing, or may adjourn the trial and give such directions and make such order as to costs as he may think fit.

17. 2Judgment may be given for balance found due to defendant

Where in any action a set‑off or counterclaim is established as a defence against the plaintiff’s claim, the magistrate may, if the balance is in favour of the defendant, give judgment for the defendant for such balance or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.

18. 2Leave to clerk to exercise jurisdiction

Where by the Act the leave of the magistrate is required for the exercise of any powers or jurisdiction by the clerk, such leave may be either general or special.

19. 2When clerk authorised to hear disputed claims

Where a clerk is authorised by the magistrate to hear and determine disputed claims when the sum claimed or amount involved does not exceed $10, he shall, when any such case is called on before him, ask the parties whether they desire to have the case heard by him or by the magistrate.

20. 2Postponement of trial on joint application of parties

The magistrate or clerk may at any time postpone the trial of any action or matter upon the joint application of the parties.

21. 2Postponement of trial by magistrate

Where it appears that from the course of proceedings in any action or matter the trial cannot be held on the return day, the magistrate may postpone the trial until such other day as the state of the proceedings may require, and notice of such postponement shall be given by the clerk to all parties and persons interested who are not present when the order is made.

22. 2Adjournment to enable party to comply with rules

When anything required by the practice of the court to be done by either party before or during the trial has not been done, the magistrate may, in his discretion, and on such terms as he shall think fit, adjourn the trial to enable such party to comply with the practice.

Order 23  Judgments and orders

1. 2Entries to be made in minute book

The clerk shall enter in the minute book a minute of all judgments and orders.

[Rule 1 of Order 23 amended in Gazette 30 June 2003 p. 2614.]

2. 2Form of ordinary judgment

An ordinary judgment for debt or damages shall be according to the form in the Appendix.

A judgment, when a counterclaim has been made, and a judgment for the delivery of goods may be according to forms 95 and 96 respectively.

[3.Repealed in Gazette 30 June 2003 p. 2614.]

4. 2Certain orders need not be drawn up or served

(1)No order giving leave to take any proceedings, and no interlocutory order, need be drawn up or served unless the magistrate otherwise orders.

(2)Except where a judgment or order is required to be served on the opposite party, it shall not be necessary to draw up any formal judgment or order to warrant further proceedings on such judgment or order, but the entry of such judgment or order by the clerk in the minute book shall be sufficient to warrant any further proceedings.

5. 2Orders directed to be drawn up by magistrate — time to be stated for doing any act ordered to be done — memorandum to be endorsed

Every judgment or order given or made in any action or matter requiring any person to do an act thereby ordered, other than the payment of money or costs, shall state the time, or the time after service of the judgment or order, within which the act is to be done, and a copy of the judgment or order shall be served personally upon the person required to obey the same, on which copy shall be endorsed a memorandum according to the form in the Appendix.

6. 2Purposes for which certificate of judgment required to be stated

(1)Any person requiring a certificate of any judgment or order shall state in writing whether such certificate is required for the purpose of taking proceedings thereon in any other court, or for proving the debt in bankruptcy, or for the purpose of evidence only; and in such latter case the clerk shall state thereon the purpose for which it is required.

(2)The clerk before issuing any certificate of judgment may require the person applying for the same to furnish a praecipe in the form number 97 in the Appendix.

7. 2How money payable under ordinary judgment to be payable

Money payable under an ordinary judgment shall be paid forthwith, unless the magistrate at the time of giving judgment otherwise orders. Where judgment is given for payment by instalments, such instalments shall be payable at such periods as the order directs; and if no period is mentioned, the first shall become due on the seventh day from the day of making the order, and such instalments shall be paid into court in accordance with section 91 of the Act.

8. 2Fresh order for payment by instalments on application of judgment creditor

(1)Where there is an unsatisfied judgment or order the party entitled to enforce it may apply ex parte to the court in which the same was given or made to order that the amount due and unpaid be paid by instalments, or if payable by instalments, by the like or smaller instalments; and the magistrate may thereupon make an order accordingly.

(2)An application under this rule may be made at any sitting of the court, or it may be made at any other time by request in writing, giving the number of the plaint and the names of the parties to the action or matter in which the judgment or order was given or made, and the instalments by which the applicant desires that the amount due and unpaid may be ordered to be paid. Such request shall be left at or sent by post to the office of the clerk, accompanied by a stamped and directed envelope; and when the request has been dealt with the clerk shall forward the party notice thereof.

(3)The clerk may, by leave of the magistrate, deal with any application under this rule out of court, and without requiring the attendance of the applicant; but he may, and where no payment has been made within 6 years before the date of the application, he shall, refer such application to the magistrate, who may make such order in the matter as he shall think right, and may require the attendance of the applicant.

(4)An order made on an application under this rule shall be entered in the minute book, and shall have the same effect as a fresh order for payment by instalments made on the hearing of a judgment summons.

9. 2Fresh order for payment of sum not exceeding $100 on application of judgment debtor

Where a judgment has been given or an order made for the payment of any sum not exceeding $100, exclusive of costs, by instalments or otherwise, and it appears to the satisfaction of the magistrate that the person liable under the judgment or order is unable to pay the sum ordered to be paid at the time or by the instalments ordered he may, on the application of such person, made on notice served on the party entitled to enforce the judgment or order 2 days at least before the hearing of the application, order the amount due and unpaid under the judgment or order to be paid by instalments, or, if already payable by instalments, by the like or smaller instalments, and may from time to time vary such order.

10. 2Fresh order for payment in one sum or by increased instalments on application of judgment creditor

In like manner, if it appears to the satisfaction of the magistrate that the person liable under any such judgment or order is able to pay the sum ordered to be paid either in one sum or by larger instalments than those ordered, he may, on the application of the person entitled to enforce the judgment or order, made on the like notice to the person liable thereunder, order the amount due and unpaid to be paid in one sum, or by larger instalments than those previously ordered, and may from time to time vary such order.

An order made on an application under this or the last preceding rule shall be entered in the minute book, and shall have the same effect as a fresh order for payment made on the hearing of a judgment summons.

11. 2Assessment of value of goods

When a judgment for delivery of goods has been obtained in default of defence, the plaintiff may have the value of the goods or any of them assessed in the same manner as damages are assessed and rules 5 and 6 of Order 10 shall apply in respect of such assessment. When the judgment has been obtained at the trial, the value of the goods shall be thereupon assessed by the magistrate.

Order 24  Accounts

1. 2How accounts to be taken

Where, pursuant to section 77 of the Act, the magistrate refers to the clerk any matter of account all parties shall have the same power of summoning witnesses, including as witnesses any parties in the action, and of examining them, and of compelling the production of documents, as they would have upon the trial of an action; and all rules as to the summoning, swearing, and examining of witnesses, and the production of documents at the trial, shall be applicable (as far as may be) to such summoning, swearing, examining, and production on taking any such accounts.

2. 2Clerk to appoint time and place for taking account

Where any matter of account is referred to the clerk he shall by summons, according to the form in the Appendix, addressed to all parties entitled to attend, direct such parties to attend at his office for the purpose of proceeding with the inquiry.

3. 2Hearing before clerk

Upon the day so appointed or at any adjourned sitting, the clerk shall sit at the time and place appointed, and shall hear all parties interested.

4. 2Accounts to be verified by affidavit

Where any account is directed to be taken, the accounting party, unless the magistrate shall otherwise direct, shall make out his account and verify the same by affidavit. The items on each side of the account shall be numbered consecutively, and the account shall be referred to by the affidavit as an exhibit and be left with the clerk.

5. 2Vouchers to be produced

Upon the taking of any account the magistrate may direct that the vouchers shall be produced at the office of the solicitor of the accounting party, or at any other convenient place, and that only such items as may be contested or surcharged shall be brought before the clerk.

6. 2Clerk’s certificate

The result of the proceedings before the clerk shall be stated in the form of a certificate in writing, signed by the clerk, and presented to the magistrate.

7. 2Books of account to be prima facie evidence

Any books of account in which the accounts required to be taken, or any of them, have been kept shall, unless the magistrate otherwise directs, be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised.

Order 25 — Enforcement of judgments and orders

Division 1 — By warrants of execution

1. 2Orders enforceable like judgments

Every order of the court in any action or matter may be enforced against all persons bound thereby in the same manner as a judgment to the same effect.

2. 2Enforcing judgment or order against corporation

When any judgment or order against a corporation is wilfully disobeyed the magistrate may order the judgment or order to be performed or observed and carried into effect by some responsible director or officer of the company.

[3.Repealed in Gazette 30 June 2003 p. 2614.]

4. 2Examination where difficulty arises in execution

(1)In case of any judgment or order other than for the recovery or payment of money, if any difficulty arises in or about the execution or enforcement thereof, any party interested may apply to the magistrate, and the magistrate may make such order thereon for the attendance and examination of any party or otherwise as may be just.

(2)The costs of any applications under this rule and of any proceedings arising from or incidental thereto shall be in the discretion of the magistrate and rule 10 of Order 12 shall apply to such costs.

5. 2Date and duration of warrants of execution

A warrant of execution shall bear date on the day on which it is issued, and if unexecuted shall remain in force for one year only from its issue, unless renewed in the manner hereinafter provided: but such warrant may at any time before its expiration by leave of the magistrate, be renewed by the party issuing it for one year from the date of such renewal, and so on from time to time during the continuance of the renewed warrant, and a warrant of execution so renewed shall have effect, and be entitled to priority, according to the time of the original issue thereof. The party issuing the warrant shall apply on motion to the magistrate to renew the warrant and if an order is made the order shall be served by that party on the bailiff who is executing or attempting to execute the warrant.

6. 2Applicant to furnish praecipe

(1)The clerk before issuing any warrant may require the person applying for the same to furnish a praecipe containing the number of the plaint, and the residence, or place of business, and description of the person against whose goods or land the warrant is to be issued.

(2)Upon receipt of the praecipe the clerk shall issue a warrant in form number 104 in the Appendix and he may amend that form in such manner as is appropriate to each case.

7. 2Where default made, execution may issue

Where a defendant has made default in payment of the whole amount awarded by the judgment, or of an instalment thereof, a warrant of execution without leave of the magistrate may issue, and such execution shall be for the whole amount of the judgment and costs then remaining unsatisfied, unless in the case of instalments the magistrate shall otherwise direct.

8. 2Separate executions for money recovered and for costs

Where judgment is given or an order made for the recovery or payment of a sum of money exceeding $100 and costs, a warrant of execution may, in default of payment, issue for the recovery of the sum and costs after the latter have been taxed; or, if default is made in payment of the sum of money before the costs have been taxed, separate warrants may issue for the recovery of such sum on default in payment thereof, and for the recovery of the costs after the same have been taxed and default has been made in payment thereof; but a second warrant shall only be for costs.

9. 2Execution may issue within 6 years without leave

As between the original parties to a judgment or order, execution may issue at any time within 6 years from the recovery of the judgment or the date of the order.

10. 2Execution on judgment against a firm

Where a judgment or order is against a firm, execution may issue in manner following: 

(a)against any property of the partnership;

(b)against any person who has admitted before the court in the proceedings in which the judgment or order was obtained that he was a partner at the time of the accruing of the cause of action, or who has been adjudged to be liable as a partner;

(c)against any person who was individually served with the summons as a partner or a person sought to be made liable and failed to appear at the trial.

If the party who has obtained the judgment or order claims to be entitled to issue execution against any other person as a member of the firm, he may, after giving to such person 2 clear days’ notice of his intention, apply to the magistrate for leave so to do; and the magistrate may give such leave if the liability is not disputed, or, if such liability is disputed, may order that the liability of such person be tried and determined in an action to be commenced by plaint and summons in the ordinary way.

11. 2Application for leave to issue execution after six years or on change of parties after judgment etc. — order thereon

In the following cases, viz.: 

(a)where 6 years have elapsed since the judgment or date of the order, or any change has taken place by death, assignment, or otherwise in the parties entitled or liable to execution;

[(b)deleted]

(c)where a party is entitled to execution upon a judgment of assets in futuro;

(d)where a party is entitled to execution against any of the shareholders of a joint‑stock company upon a judgment recorded against such company, or against a public officer or other person representing such company,

the party alleging himself to be entitled to execution may apply to the magistrate for leave to issue execution accordingly, and the magistrate may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action maybe tried, and in either case the magistrate may impose such terms as to costs or otherwise as shall be just.

Any order made ex parte under this rule shall be drawn up and served by post or otherwise on the persons to be affected thereby; and proceedings thereon shall not issue until 6 clear days at least after the day on which the copy of the order was served on, or in the normal course of events it would be received by the persons affected.

[Rule 11 of Order 25 amended in Gazette 30 June 2003 p.2614.]

12. 2Application to stay execution

(1)An execution debtor may apply to the magistrate in chambers to stay any warrant of execution issued in the action by lodging with the clerk an application in form number 113 in the Appendix together with an affidavit verifying the particulars set out in that form.

(2)The magistrate may make an interim order in the form number 114 in the Appendix and thereupon the clerk shall issue the chamber summons in duplicate on form 115 in the Appendix and cause a copy to be served on the bailiff who shall thereupon comply with the interim order and the execution debtor shall serve or cause a further copy of the summons to be served on the execution creditor.

(3)On the return day of the chamber summons, the magistrate after hearing the parties may further extend the interim order or make such further order as he deems just.

(4)Where a further order extending the stay of the warrant is made under subrule (3), a copy of the order shall be served on the bailiff.

(5)In this rule the term, magistrate includes a magistrate of the home court or any foreign court.

(6)No fee is chargeable on the filing of the application or extraction of an order.

13. 2Notice of execution to be left with debtor

The clerk shall, on issuing a warrant of execution, prepare and deliver to the bailiff with the warrant a notice according to the form in the Appendix; and the bailiff, upon levying, shall deliver such notice to the party against whom the execution has issued, or leave the same at the place where the execution is levied.

14. 2Concurrent warrants

Warrants of execution may be issued concurrently, provided that the costs of more than one warrant shall not be allowed against the execution debtor unless by order of the magistrate.

15. 2Cost of warrants

Except as otherwise provided by these rules, the costs of warrants, whether executed or unexecuted or unproductive, shall be allowed against execution debtor, unless the magistrate otherwise directs.

16. 2Possession fee

No possession fee shall be payable where execution is paid out within half an hour of the bailiff’s entry.

17. 2Sale

(1)Except where the magistrate otherwise orders all land or goods sold in execution of the process of the court shall be sold publicly and for ready money by the bailiff or his deputy to the highest bidder, either at the place where the same were levied upon or at such other place as the bailiff or his deputy considers is more suitable or convenient for the sale thereof; and the bailiff or his deputy shall advertise notice of the sale at least once in a newspaper circulating in the town or district in which the land or goods are to be sold, in cases where there is such a newspaper in circulation, or otherwise the bailiff or his deputy shall affix notice of the sale conspicuously at or near the place where the sale is to be held.

Subject as hereinafter provided, the day appointed for the said sale shall not be earlier than the sixth day from the day of levying, and notice of the sale shall be advertised or affixed as aforesaid at least 4 days before the day appointed for the sale.

Provided that — 

(i)where goods to be sold are of a perishable nature, or where the execution debtor so requests, the goods may be sold immediately without notice of sale, or may be sold earlier than 4 days after notice of the sale given as aforesaid; and

(ii)the day appointed for the sale may be extended, and notice of such extended date may be advertised by the bailiff or his deputy, where he considers that the nature or value of the property or goods to be sold warrants such extension; and

(iii)this rule shall not (except insofar as it provides that the sale shall be public) apply to land of which an actual seizure has not been made.

(2)(a)Notwithstanding the provisions of subrule (1), if, in the opinion of the bailiff, the value of any goods seized by him under a warrant of execution, is less than $100, he may sell the goods by public auction in any public auction room approved by the magistrate without advertising notice of the sale in any newspaper.

(b)The magistrate shall notify the bailiff in writing of his approval of any public auction room, and the written notification shall be sufficient authority for the bailiff to sell goods in the auction room so approved.

18. 2Requirements where land taken in execution

(1)Before the bailiff shall take any land under a warrant of execution the execution creditor by whom such warrant has been issued shall deliver to the bailiff a statement in writing verified by the Registrar of Titles or Registrar of Deeds, as the case may be, containing particulars of the land proposed to be taken, the date of service of the warrant of execution upon the Registrar of Titles or the Registrar of Deeds, as the case may be, and particulars of all encumbrances registered against the said land at the date of such service of the warrant of execution.

(2)The sale of land shall be made subject to such conditions as the bailiff shall deem suitable. Such conditions may be according to form 108 set out in the Appendix hereto, with such modifications as the circumstances of the case may require.

(3)The magistrate may on the request of the execution creditor settle the conditions of sale.

(4)The purchase money shall be lodged by the bailiff with the clerk of court until the transfer or conveyance of the property sold shall have been delivered to the purchaser, unless the magistrate shall otherwise order.

(5)If for any reason the sale shall be rescinded the bailiff shall have authority under the warrant of execution to cause the land to be again offered for sale.

(6)The fees paid by the execution creditor to the Registrar of Titles or the Registrar of Deeds, as the case may be, for the said statement in writing, verified as aforesaid, shall, upon the receipt for such payment being produced to the clerk of the court, be added to and form part of the cost of the warrant of execution, and thereafter shall be recoverable by the execution creditor under such warrant of execution or in any subsequent proceedings taken by the execution creditor to enforce the judgment.

19. 2Inventory and notice of sale of goods removed under execution

Where goods taken in execution are removed, the bailiff shall give to the execution debtor a sufficient inventory of the goods so removed, and shall also give to the execution debtor notice in writing, signed by the bailiff, of the time when and place where such goods will be sold. Such inventory and notice shall be given to the execution debtor personally, or sent to him by post to his place of residence, if known, or if such residence is not known, they shall be left at or sent by post addressed to the execution debtor at the place from which the goods are removed. The inventory shall be given or sent at the time of or immediately after the removal of the goods; and the notice shall be given or sent at least 24 hours before the time fixed for the sale.

20. 2Account of sale under execution

Where goods or land are sold in execution the bailiff shall, on the request of the execution debtor, furnish him with a detailed account in writing of the sale, and of the application of the proceeds thereof.

21. 2Part payment after issue of warrant of execution

(1)Where after the issue of a warrant of execution, but before sale, money is paid into the home court, or into any foreign court, or to the bailiff holding the warrant, the following provisions shall apply.

(2)Where payment is made into the court, the bailiff whereof is charged with the execution of the warrant, the fact and amount of such payment shall forthwith be notified by the clerk to the bailiff holding the warrant.

(3)Where payment is made into the home court after the warrant has been sent for re‑issue to any foreign court, the fact and amount of such payment shall forthwith be notified by post by the clerk of the home court to the clerk of the foreign court, who shall forthwith notify the same to the bailiff holding the warrant.

(4)The bailiff holding the warrant, on receiving any payment or notice of any payment, shall forthwith endorse on the warrant the amount of such payment, and shall sign the endorsement; and if the amount paid is not sufficient to satisfy the amount to be levied and the costs of execution incurred before payment or notice of payment is received, the execution, unless withdrawn by the bailiff, shall proceed only for the balance of the original amount to be levied and the costs of execution calculated on that amount, less the amount so paid.

(5)Money paid into court under paragraph (2) shall be deemed to have been received by the bailiff at the time when such money is received by the clerk; and money paid into the home court under paragraph (3) shall be deemed to have been received by the bailiff of the foreign court at the time when he receives notice of such money having been received; and such money shall be applied as if it had been received by the bailiff; and where, if the money paid into court had been received by the bailiff, it would be his duty under the Bankruptcy Act, to pay over the same to the official receiver or trustee in bankruptcy, the bailiff shall pay over the amount paid into court, whether under paragraph (2), (3) or (4); and the clerk of the court to which the bailiff is appointed shall pay such amount to the bailiff, and shall be allowed, at his audit, the amount so paid; and if any part of such amount was paid into the home court under paragraph (3), the clerk of the home court shall account for and pay over such amount.

22. 2Notice of sale

Unless the magistrate otherwise directs, the publication pursuant to section 123 of the Act of notice of a warrant and of the intended day and place of sale, and of particulars of the property concerned shall be by advertisement appearing twice in a newspaper circulating in the neighbourhood of such property, and such advertisement shall appear first at least 14 days before the day appointed for the sale.

Division 2 — Transmission of proceeds of warrants, from foreign courts

1. 2Transmission of warrants to be executed by bailiff of foreign court

In all cases of warrants of execution or orders of commitment to be executed by the bailiff of a foreign court, the clerk of the court from which the warrant or order issued shall send the same with a warrant according to the form in the Appendix, signed by him and sealed with the seal of the court, to the clerk of the foreign court, as required by section 135 of the Act; and the clerk of the foreign court shall, immediately on the receipt of the warrant or order, make an entry of the receipt thereof in the Foreign Executions Re‑issue Book.

2. 2Accounting for and transmission of proceeds levied

When by virtue of any warrant sent to a foreign court any money has been received by the bailiff of the foreign court, such bailiff shall, within 3 days from the receiving of such money, pay over the same to the clerk of the foreign court, and shall, unless an interpleader summons as to such money is pending, make a return in writing of the amount received, according to the form in the Appendix; and in the case of a levy having been made, the bailiff shall state in the return the gross amount produced by such levy, and the particulars of his charges and shall pay to the clerk of the foreign court the gross amount. The clerk of the foreign court shall certify in the return the amount paid into court and the amount of charges allowed by him to the bailiff and shall transmit the return and the net proceeds to the clerk of the home court, as directed by section 135 of the Act, who shall file such return and thereupon pay out of any money in his hands to the judgment creditor the amount certified in such return to have been received by the clerk of the foreign court as the proceeds of the execution, and shall enter in a book the amount so certified, according to the form in the Appendix.

3. 2Payment into foreign court under order of commitment

Where by virtue of any order of commitment to be executed by the bailiff of a foreign court, any money has been paid into such court, the clerk of such court shall transmit to the clerk of the home court the amount so paid in; and the clerk of the home court shall, upon the receipt of the money, pay out the same to the judgment creditor.

Order 26  Enforcement of judgments and orders by judgment summons

1. 2No commitment except after judgment summons — judgment summons to be served personally

(1)No order of commitment under section 130 of the Act shall be made unless a summons to appear and be examined on oath, hereinafter called a judgment summons, has been personally served upon the judgment debtor.

(2)No order of commitment under section 130 of the Act made by any clerk delegate shall be effective until it is confirmed by the magistrate in accordance with section 130(7) of the Act.

(3)Any confirmation, variation, direction or setting aside of the order by the magistrate shall be endorsed on the order by the magistrate and notice of the endorsement given to the parties to the action.

(4)Upon the notice being given as required by subrule (3) the order may be enforced in the manner provided by the rules.

2. 2Praecipe for summons

A person requiring a judgment summons to be issued shall file a praecipe according to the form in the Appendix.

3. 2Summons for 2 or more defendants

Where a judgment has been given or an order made against 2 or more persons, the person entitled to enforce the judgment or order may require a judgment summons to be issued against all or any one or more of the persons liable under the judgment or order.

4. 2Issue of summons against debtor without leave

(1)A judgment summons may be issued without leave from the court nearest to the place where the debtor resides or carries on business or is employed.

(2)Pursuant to section 38B of the Act a judgment summons may he issued for the attendance of a debtor at a place other than a court.

[Rule 4 of Order 26 amended in Gazette 27 November 1987 p.4254.]

5. 2Application for leave for judgment summons

A judgment summons shall not be issued from a court which is not the court nearest to the place where the debtor resides or carries on business or is employed, without the leave of the magistrate or clerk. The application for leave shall be made upon affidavit according to the form in the Appendix, and leave shall not be granted unless the magistrate or clerk is satisfied that the evidence afforded by such affidavit, if uncontradicted, would justify the making of an order of commitment against the debtor. If leave is granted, a copy of the affidavit shall be lodged with the clerk and annexed to the judgment summons and served therewith:

Provided that such affidavit may be dispensed with at the discretion of the magistrate or clerk if the person requiring a judgment summons to be issued either — 

(a)when such summons is to be served by a bailiff, deposits with the clerk, to be paid or tendered to the judgment debtor with the summons, or

(b)when such summons is to be served otherwise than by a bailiff, gives an undertaking in writing to pay, or tender to the judgment debtor with the summons,

a sum reasonably sufficient to cover the travelling expenses of the debtor to attend the court, the amount to be fixed by the clerk.

[Rule 5 of Order 26 amended in Gazette 28 January 1983 p.320.]

6. 2Judgment summons on judgment against a firm etc.

(1)When a judgment or order is against a firm, or against a person carrying on business in any name other than his own in such other name, and the person entitled to enforce the judgment or order desires to do so by judgment summons against any person whom he alleges to be liable under the judgment or order as a partner in or the sole member of the firm, or as the person carrying on business in such other name as aforesaid, he shall file an affidavit, together with a copy thereof, according to one of the forms in the Appendix, and thereupon a judgment summons may issue according to the form in the Appendix directed to the person alleged to be liable as aforesaid, and there shall be annexed to such judgment summons, and served therewith, a copy of the said affidavit, sealed with the seal of the court.

(2)If such person does not appear on the return day of the judgment summons, he shall be deemed to admit his liability as a partner in or the sole member of the firm, or as the person carrying on business in such other name as aforesaid, to pay the amount due and payable under the judgment or order; but if such person appears and denies his liability, the magistrate may decide the question on the evidence then before him, or may order the question to be tried and determined in an action to be commenced by plaint and summons in the ordinary way.

7. 2Where judgment summons applied for at a court in which judgment was not obtained

Where a judgment creditor desires to apply for a judgment summons to a court other than the court in which the judgment or order was obtained, he shall obtain from the clerk of the court in which the judgment or order was obtained a certified copy of the judgment or order in the action, according to the form in the Appendix, and file the same with the application, together with an affidavit of the sum due thereon.

8. 2Where judgment summons required on judgment of a court other than a local court

Where a party desires to enforce by commitment in any court a judgment or order of the Supreme Court, or of any court other than a local court, he shall obtain from the Supreme Court, or such other court, an office copy of the judgment or order he desires so to enforce, and shall file such office copy, together with an affidavit of the sum due thereon, with the clerk of the court, and the clerk shall thereupon issue a judgment summons.

9. 2Issue and service of judgment summons

(1)A judgment summons shall be in the form in the Appendix as shall be applicable to the circumstances of the case, and shall be issued not less than 7 clear days and be served not less than 5 clear days before the day on which the judgment debtor is required to appear, except in the case provided for by the next following rule.

(2)If a judgment summons is served otherwise than by a bailiff, an affidavit of service according to the form in the Appendix by the person who actually effected service must be lodged with the clerk at least 3 days before the return day.

[Rule 9 of Order 26 amended in Gazette 28 January 1983 p.320.]

10. 2Where judgment debtor about to remove

Where the person applying for a judgment summons states to the clerk that the judgment debtor is about to remove from his residence or place of business, or is keeping out of the way to avoid service, the judgment summons may be issued and served at any time before the hearing: Provided that the magistrate or clerk delegate shall not act upon a summons issued under this rule in the absence of the judgment debtor unless at the hearing the magistrate or clerk delegate is satisfied by evidence on oath, that at the time of the application for the judgment summons such party was either about to remove from his residence or place of business or was keeping out of the way to avoid service.

11. 2Time allowed for service of judgment summons

(1)The time within which a judgment summons may be served shall, unless extended under this rule, be limited to a period of 12 months from the issue of the judgment summons.

(2)Where reasonable efforts have been made to serve the summons within the period of 12 months and service has not been effected, the magistrate may, on application in chambers, order that the time be extended for a further period not exceeding 12 months or for successive periods not exceeding 12 months each, but the time shall not be extended for any period unless the application is made within the currency of the last preceding period.

(3)A note of an extension of the time allowed for service shall be endorsed on the summons and on any copy and shall be entered in the books of the court.

(4)Subject to these rules, where a judgment summons has not been served within the time limited by either of subrules (1) or (2) a fresh summons may be issued on payment of the fee.

12. 2Summons of judgment debtor and witnesses to prove means — when expenses paid to judgment debtor may be allowed — arrest of judgment debtor

(1)Witnesses may be summoned to prove the means of a judgment debtor in the same manner as witnesses are summoned to give evidence upon the hearing of a plaint; and the expenses of any person examined, whether summoned or not, may, subject to these rules, be allowed.

Where the judgment debtor does not appear at the hearing, or pay into court the amount in payment of which he has made default, expenses paid to him with the judgment summons may, if the magistrate or clerk delegate so directs, be allowed as expenses of a witness; and where the judgment debtor appears at the hearing, expenses so paid to him may, if the magistrate or clerk delegate so directs, be allowed as expenses of a witness in any case in which the cost of witnesses may be allowed under these rules.

(2)Where the judgment debtor is summoned to appear under section 130 of the Act he shall be summoned in accordance with the form in the Appendix.

(3)A praecipe for a warrant to arrest a judgment debtor pursuant to section 130(2a) of the Act and the warrant to so arrest the judgment debtor shall be according to the forms in the Appendix.

[Rule 12 of Order 26 amended in Gazette 28 January 1983 p.320.]

13. 2Evidence by affidavit where creditor or debtor resides at a distance from court issuing judgment summons

Where a judgment summons is issued from a court which is not the court held nearest to the place where the judgment creditor at whose instance a judgment summons is issued, or the judgment debtor summoned to appear by a judgment summons resides or carries on business or is employed, the creditor or debtor, as the case may be, may forward to the clerk of the court from which the summons is issued an affidavit, setting forth any facts which he may wish to be before the court prior to any order being made on the summons: And the magistrate or clerk delegate may, if he thinks fit, on the hearing of the judgment summons, admit the affidavit as the evidence of the person by whom the same is made.

13A. 2Consent affidavit under judgment summons

(1)Where a judgment debtor consents to pay the amount in respect of which an order is sought under a judgment summons, he may make and forward to the clerk of the court from which the summons is issued an affidavit setting forth any facts which he may wish to be before the court prior to any order being made on the summons and the magistrate or clerk delegate may, if he thinks fit, on the hearing of the judgment summons, admit the affidavit, as the evidence of the judgment debtor.

(2)An affidavit for the purposes of subrule (1) may be in accordance with the form in the Appendix.

[Rule 13A of Order 26 inserted in Gazette 31 December 1969 pp.4392‑3.]

14. 2On issue of judgment summons, any warrant of execution issued to be lodged in court

Upon the issue of a judgment summons against a party upon a judgment or order of the court out of which the judgment summons is issued, the bailiff of such court shall lodge in court any warrant of execution against the goods or land of such party which may have been issued in the action, whether executed or not; but any such warrant, if not fully executed may be reissued by leave of the magistrate.

15.Minute that certificate of judgment has been given to be made — restriction on proceedings in court issuing certificate

Where a certified copy of a judgment or order is obtained from a clerk for the purpose of taking proceedings thereon in any other court, the clerk shall make on the minute of the judgment or order a memorandum of such certified copy having been given, and the bailiff of the court issuing such certified copy shall lodge in court any warrant of execution against the goods or land or judgment summons or order of commitment which may have been issued by such court upon such judgment or order; and no such warrant, summons, or order shall be reissued, nor shall any subsequent warrant of execution against the goods or land or judgment summons upon such judgment or order be issued by such court, nor shall any order be made under Order 23, rule 8, 9, or 10, in such court, unless it is shown to the satisfaction of the magistrate that no order has been made against the person liable under such judgment or order in any other court upon such certified copy.

16. 2Where order of commitment made or order altered by another court — proceedings to be transferred to and continued in that court

(1)Where a judgment summons is heard in a court other than that in which the judgment or order was obtained, a memorandum of the result of such hearing shall be sent by the clerk to the clerk of the court in which the judgment or order was obtained, and shall be entered by such last-mentioned clerk on the minute of the judgment or order.

(2)If on such hearing an order of commitment or an order altering the terms of the judgment or order is made, the proceedings shall be thereby transferred to the court in which such order is made; and all payments, whether under the order of commitment or under the original judgment or order, or under the new order, shall be made into, and execution or other process for enforcing either the order of commitment or the original judgment or order or the new order shall be issued by, the court making such order of commitment or new order.

(3)If on such hearing no order is made, the judgment or order shall remain in the court in which it was obtained, and the certified copy thereof shall be returned to that court; and subsequent payments thereunder shall be made into, and subsequent proceedings for the enforcement thereof may be taken in, such last‑mentioned court.

17. 2Where order of commitment sent to a foreign court

Where an order of commitment is sent to a foreign court under the provisions of section 135 of the Act, the clerk of the foreign court shall endorse on it a notice, according to the form in the Appendix, addressed to the bailiff of the court, and shall affix the seal of the court thereto.

18. 2No commitment after bankruptcy or administration order in respect of debt provable thereunder

Where a judgment debtor upon the return day of a judgment summons satisfies the magistrate or clerk delegate that a sequestration order has been made for the protection of his estate, or that he has been adjudicated bankrupt, and that the debt was provable in the bankruptcy, or that an order has been made for the administration of his estate under the Bankruptcy Act, and that the debt was incurred before the date of the order, and has been duly notified to the court, or that he has executed, made or arranged a deed of assignment, composition or scheme of arrangement under the Bankruptcy Act, no order of commitment shall be made.

19. 2Commitment not to be enforced where sequestration or administration order made after order of commitment

Where a judgment debtor after the making of an order of commitment against him files in the court in which the order was made an affidavit according to the form in the Appendix, stating that a sequestration order has been made for the protection of his estate or that he has been adjudicated a bankrupt, and that the debt was provable in the bankruptcy or that an order for the administration of his estate has been made under the Bankruptcy Act, and that the debt was incurred before the date of the order, and has been duly notified to the court, annexing to such affidavit in such last­-mentioned case a certificate of the clerk of the court in which such last‑mentioned order has been so made, or that he has executed, made, or arranged under the Bankruptcy Act a deed of assignment, composition, or scheme of arrangement and forthwith, upon such affidavit being so filed, gives notice to the judgment creditor of the filing thereof, the order of commitment shall not be issued, and if issued and not executed, it shall be recalled.

20. 2Discharge of judgment debtor on filing affidavit as to bankruptcy etc.

Where a judgment debtor is arrested, he may file in the court held nearest to the place in which he is in custody an affidavit as mentioned in the last preceding rule, and thereupon he shall be discharged out of custody upon the certificate of the clerk of that court, who shall forthwith give notice to the judgment creditor of such discharge.

21. 2Hearing, adjournment and order on judgment summons

(1)On the hearing of a judgment summons the magistrate or clerk delegate, if he is of opinion that an order of commitment ought not to be made, may refuse to make any order, or may make a fresh order for payment of the amount remaining due and unpaid under the judgment or order, either at a special time, or by instalments.

(2)The hearing of a judgment summons may, by leave of the magistrate or clerk delegate, be adjourned from time to time.

(3)Where the hearing of a judgment summons is adjourned the judgment creditor may apply for the re‑listing of the hearing, and the issue of a summons requiring the judgment debtor to attend at the resumption of the hearing, by filing a praecipe according to the form in the Appendix.

(4)A summons referred to in subrule (3) shall be in the form in the Appendix and shall be served in accordance with these rules; and where travelling expenses are paid or tendered to the judgment debtor, the service of the summons shall be deemed to be service of a summons on him under section 130 of the Act.

[Rule 21 of Order 26 amended in Gazette 28 January 1983 p.320.]

22. 2Suspension of order of commitment

If an order of commitment is made, the magistrate or clerk delegate may direct the execution of such order to be suspended to enable the debtor to pay the amount in respect of the non‑payment of which the order is made, by instalments or otherwise. When such direction is given, notice shall be sent to the debtor according to the form in the Appendix.

23. 2Payments to be made into court

Subject to the provisions of rules 27 and 29, all payments under a fresh order or order of commitment shall be paid into court.

24. 2Form, date, and duration of order of commitment

(1)An order of commitment shall be according to the form in the Appendix, and shall, on whatever day it may be issued from the clerk’s office, bear date on the day on which the order for commitment was made; but such order shall not be enforced after the expiration of one year from the date thereof, unless at any time before or after the expiration of such year the magistrate or clerk delegate otherwise orders. The fact of the making of any such order shall be endorsed on the order of commitment.

(2)If default is made in such payment by instalments, or in the manner ordered and it is desired to issue an order of commitment, such order shall issue for the full amount in respect of the non‑payment of which the order was made, less any payments made under the order.

25. 2Power to suspend order for payment of future instalments during suspension of order of commitment in respect of past instalments

Where a judgment or order has been given or made for payment by instalments, and an order of commitment is made in respect of the non‑payment of one or more of such instalments before the whole of such instalments have become due, then if the magistrate or clerk delegate orders the execution of the order of commitment to be suspended to enable the debtor to pay the amount in respect of the non­-payment of which the order is made, by instalments or otherwise, he may, if he thinks fit, order that the judgment or order for payment of instalments shall also be suspended for so long as the execution of the order of commitment is suspended, or for any less period. If the magistrate or clerk delegate makes such order as last‑mentioned, he may at any subsequent time order that the suspension of the judgment or order for payment of instalments shall cease; and if the plaintiff withdraws or abandons the order of commitment, the suspension of the judgment or order for payment of instalments shall cease to operate on such withdrawal or abandonment.

26. 2Application by party to vary order of commitment

(1)A judgment debtor or judgment creditor may apply to the magistrate to vary, suspend or stay an order made upon the hearing of a judgment summons; and pending the hearing of such an application the magistrate may stay any order of commitment in the matter which is in the hands of a bailiff.

(2)The application shall be filed in duplicate in the form in the Appendix, and no fee shall be payable on filing if the application is filed by the judgment debtor.

(3)The duplicate shall be sealed by the clerk and shall be served on the other party to the action in accordance with these rules; and where the person to be served is the judgment debtor, and conduct money or expenses is paid or tendered to him, the service of the application shall be deemed to be service of a summons on him under section 130 of the Act.

(4)On the hearing of the application the magistrate may, where the judgment debtor is unable from sickness or other sufficient cause to pay or discharge the judgment debt or any instalment thereof, suspend or stay any execution for such time and upon such terms as he thinks fit, and for the purpose of so suspending or staying the execution the magistrate may make an interim order to enure until the next sitting of the court.

(5)The power to vary an order pursuant to section 130 of the Act, and this rule may be exercised by a clerk delegate, but such clerk delegate shall not have powers to suspend or stay an order pursuant to section 139 of the Act.

[Rule 26 of Order 26 amended in Gazette 28 January 1983 p.320.]

27. 2Payment on arrest

When an order of commitment for non‑payment of money is issued, the debtor may, at any time before his body is delivered into the custody of the gaoler, pay to the bailiff the amount endorsed on the order as that on the payment of which he may be discharged; and on receiving such amount, the bailiff shall discharge the debtor, and shall, within 3 days after receiving such amount, pay over the same to the clerk of the court of which he is a bailiff.

28. 2Part payment after issue of order of commitment

(1)Where after the issue of an order of commitment for non‑payment of money, but before the body of the debtor is delivered into the custody of the gaoler, money is paid into the home court, or into any foreign court, or to the bailiff holding the order, the following provisions apply.

(2)Where payment is made into the court the bailiff whereof was charged with the execution of the order of commitment, the fact and amount of such payment shall forthwith be notified by the clerk to the bailiff holding the order.

(3)Where payment is made into the home court after the order has been sent for re‑issue to any foreign court, the fact and amount of such payment shall forthwith be notified by post by the clerk of the home court to the bailiff of the foreign court holding the order.

(4)The bailiff holding the order, on receiving any payment or notice of any payment, shall forthwith endorse on the order the amount of such payment, and shall deduct the same from the amount endorsed on the order as that on payment of which the debtor may be discharged, and shall sign such endorsement; and the order of commitment, unless withdrawn by the plaintiff, shall thenceforth operate as an order of commitment for non‑payment of the amount remaining due after such deduction.

29. 2Payment after debtor lodged in gaol

(1)Where a prisoner has been delivered into the custody of the gaoler, the sum endorsed on the order of commitment as that upon payment of which the prisoner may be discharged may be paid into the home court, or into the foreign court, or to the gaoler in whose custody the prisoner is.

(2)Where payment is made into the court from which the order was executed, the clerk shall sign and seal a certificate thereof, and shall forward the same by post or otherwise to the gaoler in whose custody the prisoner then is, who on receipt thereof shall forthwith discharge the prisoner.

(3)Where payment is made into the home court after the order has been sent for re‑issue to any foreign court, the fact of such payment shall forthwith be notified by post by the clerk of the home court to the clerk of the foreign court, who shall forthwith sign and seal a certificate thereof, and forward the same by post or otherwise to the gaoler in whose custody the prisoner then is, who on receipt thereof shall forthwith discharge the prisoner.

(4)When payment is made to the gaoler he shall, upon payment to him of the amount endorsed on the order of commitment, together with costs sufficient to pay for transmitting that amount, transmit the amount forthwith to the clerk of the home court, and he shall sign a certificate of payment, and discharge the prisoner, and such costs of transmission shall be part of the prescribed costs.

30. 2Part‑payment after debtor lodged in gaol

(1)Where after a prisoner has been delivered into the custody of the gaoler, money is paid into the court out of which the order of commitment issued or into the court from which the order was executed, but the sum paid is less than that endorsed on the order of commitment as that upon payment of which the prisoner may be discharged, the following provisions apply.

(2)Where payment is made into the court from which the order was executed, the fact and amount of such payment shall forthwith be notified by post by the clerk to the gaoler.

(3)Where payment is made into the home court after the order has been sent for re‑issue to any foreign court, the fact and amount of such payment shall forthwith be notified by post by the clerk of the home court to the clerk of the foreign court, who shall forthwith notify the same by post or otherwise to the gaoler.

(4)Upon payment to the gaoler of the balance of the sum endorsed on the order of commitment, after deducting the amount notified to the gaoler as having been paid into court, together with costs sufficient to pay for transmitting such balance, the gaoler shall transmit such balance forthwith to the clerk of the court under the order of which the prisoner was committed, and he shall sign a certificate of such payment, and discharge the prisoner, and such costs of transmission shall be part of the prescribed costs.

31. 2Discharge of prisoner on request of judgment creditor

Upon the judgment creditor lodging with the clerk a request in writing, according to the form in the Appendix, that the judgment debtor, if in prison, may be discharged from custody, the clerk shall issue a certificate according to the form in the Appendix and transmit the certificate by post to the gaoler in whose custody the judgment debtor is; and the gaoler shall upon receipt of the certificate forthwith discharge the prisoner.

32. 2Certificate of payment

A certificate of payment by a prisoner shall be according to the form in the Appendix.

33. 2Costs on default of appearance of judgment creditor

If a judgment debtor appears on the return day, but the judgment creditor fails to appear the magistrate or clerk delegate may award costs to the judgment debtor.

34. 2Where no costs are to be allowed on judgment summons

Where on the hearing of a judgment summons on a judgment or order of a local court the magistrate or clerk delegate, in lieu of making an order of commitment, makes a fresh order for payment of the amount remaining due and unpaid under the judgment or order, no costs for fees or witnesses shall be allowed to the judgment creditor unless the magistrate or clerk delegate is satisfied that the debtor has had since the date of the original judgment or order the means to pay the sum in payment of which he had made default.

35. 2Provisions as to amount for which debtor has been imprisoned, where fresh order made on judgment summons or under Order 23, rule 9, and as to subsequent judgment summons under such order

Where on the hearing of a judgment summons the magistrate or clerk delegate, in lieu of making an order of commitment, makes a fresh order for payment of the amount remaining due and unpaid under the judgment or order, or where an order for payment by instalments is made under Order 23, rule 8, 9 or 10, there shall be included in the amount payable under such order, for the purpose of any proceedings under such order otherwise than by way of judgment summons, the amount (if any) in respect of which an order of commitment has been made, and in respect of which the debtor has been imprisoned, but so that the debtor shall not be liable to be imprisoned a second time for non‑payment of such last‑mentioned amount. On any subsequent judgment summons on default in payment of any instalments payable under such order, the amount (if any) in respect of which the debtor has been imprisoned before the date of the order shall be deducted on the face of the summons from the amount payable under the order; but in calculating for the purposes of any such subsequent summons the amount in payment of which the debtor has made default, the instalments payable under the order shall be considered as attributable in the first instance to the discharge of the amount payable under the order other than the amount in respect of which the debtor has been so imprisoned, and the summons may be issued for the full amount of the instalments in arrear, if such amount does not exceed the balance which remains payable under the order after deducting the amount in respect of which the debtor has been so imprisoned, or if the instalments in arrear exceed such balance, then for the amount of such balance.

36. 2Costs of abortive execution not to be included in judgment summons, or fresh order under Order 23, rule 8, 9 or 10

Costs (other than the court fee payable for enforcement proceedings) incurred in endeavouring to enforce a judgment or order by way of execution against the property of the debtor, and not recovered under such execution, shall not be included in the amount due under such judgment or order for the purposes of a judgment summons, or of an application for a fresh order for payment under Order 23, rule 8, 9 or 10, nor shall money paid into court otherwise than under execution against the property of the debtor be attributed to payment of such costs.

[Rule 36 of Order 26 amended in Gazette 4 December 1987 p.4976.]

Order 27  Further methods of enforcement of judgments and orders

1. 2Proceedings under section 155

Whenever it shall be necessary to proceed against any person under section 155 of the Act the person may be summoned to answer the matter alleged against him in manner provided in the Justices Act 1902, in respect of simple offences and the provisions of that Act shall apply to and in respect of the person charged and the matter charged against him as if he were charged with a simple offence and summoned to answer the same before the magistrate sitting as a court of summary jurisdiction.

2. 2Enforcement of order for discovery — warrant of attachment

The magistrate may order a warrant of attachment to issue whenever he deems it necessary so to do for the purposes of section 68 of the Act, and the warrant may be issued by the clerk and be according to the form in the Appendix.

Such an order may be obtained on application to the magistrate in chambers.

3. 2Discharge of person in custody by magistrate

Any person in custody under any order made under section 68 or 155 of the Act may make application for release at the court, or by leave of the magistrate at any place which he may appoint, on filing an affidavit showing that he has given satisfactory security that he will do the act referred to or cease to do the act prohibited or that he has cleared or is desirous of clearing his contempt or that it is otherwise just and expedient that he should be released, and giving to the party at whose instance he was committed notice in writing of his intention so to apply, with a copy of such affidavit, 2 clear days at least before making the application; and such discharge if granted, shall be given according to the form in the Appendix.

4. 2Recovery of land or possession to be enforced by warrant of possession

A judgment or order for the recovery or for the delivery of the possession of land may be enforced by warrant of possession, which shall be according to the appropriate form in the Appendix.

5. 2Enforcement of judgment for delivery of goods — warrant of delivery

Where it is sought to enforce a judgment for the delivery of goods, the plaintiff may obtain the issue of a warrant of delivery in the form in the Appendix, and the warrant shall have effect and confer authority in accordance with its tenor.

6. 2Warrant may issue without assessment of value

The warrant may issue without any assessment of value having been made.

7. 2Separate warrants for damages and costs

The plaintiff shall, by the same warrant or a separate warrant of execution, be entitled to have levied of the plaintiff’s goods and land any damages for detention or trespass of or against the goods and any costs awarded by the judgment, as well as the costs of any assessment of the value of the goods, and the expenses of executing the warrant, and also all costs and expenses of or incidental to the issue of the same; provided that rule 8 of Division 1 of Order 25 shall apply in respect of the costs.

8. 2Option to enforce delivery or payment of value

After the assessment of the value of the goods or any of them, the plaintiff may (subject to any order made by the magistrate under the Act) require the bailiff to enforce delivery of all or any specified goods still undelivered, or payment of their value, at the sole option of the plaintiff.

9. 2Certifying assessment to bailiff

If an assessment or order under section 91A of the Act has been made after the issue of a warrant of delivery, the clerk shall certify such assessment and any such order and the costs of the assessment to the bailiff.

10. 2Application of rules relating to execution

A warrant of delivery, in so far as it authorises the levying of moneys, shall be subject to the rules and provisions applicable to warrants of execution.

11. 2Recovery of value and damages and costs by warrant of execution

Subject to any such order as aforesaid, the plaintiff may issue a warrant of execution for the recovery of the assessed value of the goods for the delivery whereof judgment has been given in any action, and may include therein any damages, costs, and expenses as aforesaid, and any other moneys payable under any judgment in the same action.

12. 2Wilful disobedience of judgment for delivery of goods

Disobedience of a judgment for the delivery of goods shall render the offender liable to be dealt with under section 155 of the Act.

13. 2Examination of debtor when judgment etc. for recovery of money

(1)Where a judgment or order is for the recovery or payment of money, the party entitled to enforce it may file with the clerk a praecipe in the form number 184 in the Appendix for a summons to the debtor requiring that the debtor liable under the judgment or order, or in the case of a corporation that any officer thereof, be orally examined as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order, before the magistrate.

(2)(a)If the clerk refuses the application made in accordance with subrule (1), the applicant may make application to the magistrate in the form 61 in the Appendix.

(b)The magistrate shall hear the application in chambers and may direct the clerk to issue the summons applied for and in such case shall note his direction on the application and the clerk shall thereupon issue the summons.

(3)(a)Where a summons is issued under either of subrules (1) or (2) a sealed copy of the summons shall be served on the person to be bound thereby.

(b)The clerk shall issue the sealed copy summons to the applicant, or by his leave to any other person who may serve a summons in a personal action but otherwise the summons shall be served by the bailiff.

(c)Service of the summons shall be personal service unless the magistrate orders otherwise.

(4)A praecipe for a warrant to arrest a judgment debtor pursuant to section 144(2) of the Act and the warrant to so arrest the judgment debtor shall be according to the forms in the Appendix.

(4a)An order pursuant to section 144(4) of the Act shall be according to the form in the Appendix.

[(5)repealed]

[Rule 13 of Order 27 amended in Gazette 28 January 1983 p.320; 30 June 2003 p. 2614.]

13A.Court may impound documents

A court hearing an examination under rule 13 may make an order impounding any documents produced at the examination.

[Rule 13A of Order 27 inserted in Gazette 26 February 1999 p.617.]

14.Costs under rule 13

(1)A court hearing an application or examination under rule 13 may make such order as to costs as may be just, including an order for fixed costs.

(2)Subrule (1) applies despite rules 6 and 7(2) of Order 37.

[Rule 14 of Order 27 inserted in Gazette 26 February 1999 p.617.]

15. 2Impounded documents

(1)Impounded documents while in the custody of the court are not to be parted with; and are not to be inspected, except on a written order signed by the magistrate.

(2)Documents shall not be delivered out of the custody of the court except upon an order made on application to the magistrate, or upon an order of the Supreme Court or a Judge; but impounded documents in the custody of the court shall, upon the request in writing of the Attorney General, be given into the custody of the Attorney General.

Order 28 — Attachment of debts

1. 2Proceedings against garnishee

An affidavit in support of an application, under section 145 of the Act, for a garnishee order, may be in the form in the Appendix. On the filing of the affidavit the magistrate or clerk may endorse on such affidavit an order attaching the debt; and thereupon, a summons in the form in the Appendix, calling upon the garnishee to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor, or so much thereof as may be sufficient to satisfy the judgment or order together with the costs aforesaid, shall be issued by the clerk.

2. 2Where garnishee resides at a distance from court

Where the garnishee resides or carries on business at a distance from the court in which judgment or order was obtained, the judgment creditor may lodge with the clerk of the court held nearest to the place where the garnishee carries on business, a certificate of the judgment or order and thereupon the provisions of rule 1 apply and all proceedings shall be held or taken thereon as if the judgment or order had been obtained in that court.

3. 2Service of garnishee summons

The summons shall be personally served on the garnishee, by any person by whom a summons in a personal action may be served, or on the solicitor of the garnishee, in accordance with Order 6, rule 9; but where the garnishee is a firm or a company or other corporation, the summons need not be served personally, but it may be served as provided by Order 6 with respect to the service of a summons in a personal action.

4. 2Payment into court by garnishee

(1)The garnishee may at any time before the return day of the summons pay into court the amount admitted by him to be due from him to the debtor, or so much of it as is sufficient to satisfy the judgment together with the costs of the garnishee proceedings.

(2)The clerk shall send notice of any payment into court to the judgment creditor, as in the case of a payment into court in an action before judgment.

(3)If the person who obtained the judgment or order elects to accept the money paid into court in satisfaction of his claim against the garnishee, he shall send notice of his acceptance to the clerk and the garnishee, as in the case of payment into court in an action.

(4)Thereupon all further proceedings against the garnishee shall abate, except as herein provided, and the person who obtained the judgment or order shall not be liable to any costs incurred by the garnishee after receiving such notice.

(5)If payment into court is made less than 5 clear days before the return day, the magistrate may, in his discretion, order the garnishee to pay such fees and costs, beyond the fees and costs (if any) paid into court by the garnishee, as the person who obtained the judgment or order may have properly incurred for work done before receipt of the notice of payment into court, and in attending the court to obtain the order for the same; and if such person intends to apply for such costs, he shall give notice of his intention in his notice of acceptance of the sum paid in; or where the time of payment into court by the garnishee does not permit of notice of acceptance being given, he may apply for such costs without giving such notice.

(6)Where the person who obtained the judgment or order has not given notice of acceptance in accordance with paragraph (1), he may nevertheless accept the money paid into court at any time before the case is called on and opened, subject to the payment of any costs which may have been reasonably incurred by the garnishee since the date of payment into court, and which may be allowed by the court.

(7)In default of acceptance by the person who obtained the judgment or order, the proceedings against the garnishee may proceed.

5. 2Payment out of court of money paid in by garnishee

Subject to the provisions of this rule, money paid into court by the garnishee, and accepted by the person who obtained the judgment or order, shall, on application made by such person, be paid out to him in accordance with the rules as to payment out of money paid into court: but before the money is paid out the clerk shall send to the judgment debtor by post or otherwise a notice according to the form in the Appendix that the money will be paid out to the judgment creditor unless the debtor appears on the day stated therein and shows cause according to such notice, and the magistrate may thereupon make such order as to the money paid into court, as he deems fit.

6. 2Order on return day, if garnishee does not appear or dispute liability

If the garnishee does not before the return day of the summons pay into court the amount admitted by him to be due from him to the debtor liable under the judgment or order, or so much thereof as shall be sufficient to satisfy the amount in respect of which such judgment or order is unsatisfied and the fees and solicitor’s costs endorsed on the garnishee summons, and does not on the return day dispute the debt due or claimed to be due from him to such debtor, or if he does not appear on the return day, the magistrate may give judgment for the person by whom the judgment or order was obtained and may order execution to issue to levy the amount due from the garnishee, or so much thereof as shall be sufficient to satisfy the judgment or order and any costs allowed.

7. 2Certificate where garnishee sued in court other than that in which judgment obtained

Where the court in which the garnishee is sued is not the court in which the judgment or order upon which he is garnisheed was given or made, the clerk of such first‑mentioned court shall send forthwith a certificate of the order of his court to the court in which such judgment or order was given or made, and shall also send notice from time to time of any payment made on, before, or after the return day.

8. 2Costs

Any costs allowed to the judgment creditor, which are not ordered to be paid by the garnishee personally, shall, unless otherwise directed, be taxed by the clerk, and retained by the judgment creditor out of the money recovered by him in the garnishee proceedings, in priority to the amount due under the judgment or order obtained by him against the debtor.

9. 2Magistrate may refuse to interfere

In proceedings to obtain an attachment of debts, the magistrate may, in his discretion, refuse to interfere, where from the smallness of the amount to be recovered, or of the debt sought to be attached, or otherwise, the remedy sought would be worthless or vexatious.

10. 2Application by judgment creditor as to money paid into court under judgment or order obtained by debtor against third person

No proceedings under this order shall be taken against a clerk of a local court to attach moneys paid to him by a party to an action, but in any such case the judgment creditor may, on giving 2 days notice to the debtor and to the clerk, apply to the magistrate for an order that the sum be paid to him, and on the receipt of the notice the clerk shall retain the money in court until after the application has been heard, and the magistrate, upon the hearing, may make such order as to the money, as he deems fit.

11. 2Attachment of debts owing from a firm

Debts owing from a firm carrying on business within Western Australia may be attached under this Order, although one or more members of such firm may be resident out of Western Australia, if any person having the control or management of the partnership business or any member of the firm within Western Australia is served with the garnishee summons.

Order 29  Appointment of receivers

1. 2Receiver’s security and allowance

Where an order is made directing a receiver to be appointed, unless otherwise ordered by the magistrate, the person to be appointed shall (subject as hereinafter provided) first give security, to be allowed by a magistrate and taken before a justice of the peace or other person authorised to administer oaths, duly to account for what he shall receive as such receiver and to pay the same as the magistrate shall direct; and the person so to be appointed shall, unless otherwise ordered by the magistrate, be allowed a proper salary or allowance. Such security shall be by recognisance in such form as the magistrate shall direct.

2. 2Fixing days for receiver to pass accounts and pay balances

When a receiver is appointed, with a direction that he shall pass accounts, the clerk shall fix the days upon which he shall leave and pass such accounts, and also the days upon which he shall pay the balances appearing due on the accounts so left, or such part thereof as shall be certified as proper to be paid by him. And with respect to any such receiver as shall neglect to leave and pass his accounts and pay the balance thereof at the times so to be fixed for that purpose as aforesaid, the magistrate may, on the report of the clerk, order that the clerk shall, when the receiver’s subsequent accounts are produced to be examined and passed, disallow the salary therein claimed by such receiver, and also, if the magistrate shall think fit, charge him with interest at the rate of 5% per annum upon the balances so neglected to be paid by him during the time the same shall appear to have remained in the hands of any such receiver.

3. 2Form of receiver’s accounts

Every receiver shall leave in the clerk’s office his account, together with an affidavit verifying the same. An appointment shall thereupon be obtained by the plaintiff or person having the conduct of the action or matter for the purpose of passing such account. A certificate of the clerk stating the result of a receiver’s account shall from time to time be taken.

4. 2Consequences of default by receiver

In case of any receiver failing to leave any account or affidavit, or to pass such account, or to make any payment or otherwise, the receiver or the parties, or any of them, may be required to attend before the magistrate to show cause why such account or affidavit has not been left, or such account passed or such payment made, or any other proper proceeding taken; and thereupon such directions as shall be proper shall be given, including the discharge of any receiver and appointment of another and payment of costs.

5. 2Appointment of receiver by way of equitable execution

In every case in which an application is made for the appointment of a receiver by way of equitable execution, the magistrate, in determining whether it is just or convenient that such appointment should be made, shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver, and to the probable costs of his appointment.

6. 2Bailiff may be appointed

The bailiff may be appointed a receiver, and he shall not be required to give any security unless the magistrate shall specially direct security to be given.

Order 30 — Interpleader

1. 2Notice of claim to execution creditor

Where a claim is made to or in respect of goods taken in execution under the process of a court it shall be in writing; and thereupon the bailiff shall forthwith send notice to the execution creditor, according to the form in the Appendix.

2. 2Order for possession fees where claim admitted

If the execution creditor admits the title of the claimant to the goods and sends notice in due course of post to the bailiff of such admission, according to the form in the Appendix, or to the like effect, he shall only be liable to such bailiff for any possession fees or expenses incurred by the bailiff prior to the receipt of such notice; and the magistrate may, if he thinks fit, on application by the bailiff, make an order for payment of any such fees or expenses by the execution creditor to the bailiff. Any such application shall be made in writing, and intituled in the matter of the execution, and 3 clear days’ notice in writing thereof shall be given by the bailiff to the execution creditor.

3. 2Power to make order protecting bailiff from action by claimant, where execution creditor admits claim before interpleader summons issued

Where the execution creditor gives notice in due time to the bailiff, as directed by rule 2, that he admits the title of the claimant to the goods the bailiff may thereupon withdraw from possession, and may apply for an order protecting him from any action in respect to the seizure and possession of the said goods, and the magistrate may make any such order as may be just and reasonable in respect of the same. Any such application shall be made in writing, and intituled in the matter of the execution, and 3 clear days’ notice in writing thereof shall be given by the bailiff to the claimant, who may, if he desires it, attend the hearing of the application; and if he attends, the magistrate may, in and for the purposes of such application, make all such orders as to costs as may be just and reasonable.

4. 2Issue of summons where the execution creditor does not admit claim

Where the execution creditor does not in due time, as directed by rule 2, admit the title of the claimant to the goods and the claimant persists in his claim thereto the bailiff shall apply for an interpleader summons to be issued; and if, before the return day of such summons, the claimant files notice that he withdraws his claim, and at the same time gives notice of such withdrawal to the execution creditor, or the execution creditor files an admission of the title of the claimant, and at the same time gives notice of such admission to the claimant, the goods taken in execution or the proceeds of sale thereof, or the money paid into court (as the case may be), shall be dealt with and disposed of as if such claim had not been made, or as if the execution had been withdrawn (as the case may be), and the magistrate may, in and for the purposes of the interpleader proceedings, make all such orders as to costs, fees, charges, and expenses as may be just and reasonable.

5. 2Proceedings generally

Where any claim is made to or in respect of any goods taken in execution, or in respect of the proceeds or value thereof, and summonses have been issued on the application of the bailiff, such summonses shall be served in such time and mode as by these rules directed for the service of a summons in a personal action, and the case shall proceed as if the claimant were the plaintiff, and the execution creditor the defendant.

6. 2Claimant to lodge particulars and grounds of claim

The claimant shall, 5 clear days at least before the return day, leave at the office of the clerk 2 copies of the particulars of any goods alleged to be the property of the claimant and of the grounds of his claim; and the name, address, and description of the claimant shall be fully set forth in such particulars, and the clerk shall forthwith send by post to the execution creditor one of the copies of such particulars. Any money paid into court under the execution shall be retained by the clerk until the claim has been adjudicated upon: Provided that by consent of all parties, or without such consent if the magistrate so directs, an interpleader claim may be tried although this rule has not been complied with.

7. 2Bailiff’s fees

The magistrate upon the hearing shall adjudicate upon any claim of the bailiff for fees, and may, if he thinks fit, order the same, or such part thereof as he may think just, to be paid by the claimant or by the execution creditor.

8. 2Power to delay sale

The bailiff may, in his discretion, delay selling such goods until the magistrate has adjudicated on the claim; and for the keeping of such continued possession he shall be allowed such costs out of pocket only as the magistrate may order.

9. 2Interpleader summons

Interpleader summonses shall be issued by the clerk, on the application of the bailiff, without leave of the magistrate, and shall be served on the solicitor of any party who acts by a solicitor.

10. 2From what court issued

Interpleader summonses, on the application of the bailiff, may be issued from the court of the district in which the levy was made, or the court from which the process issued, and the execution creditor and claimant shall be summoned to such court.

11. 2Magistrate may direct sale of goods claimed under bill of sale etc.

When goods have been seized in execution under process of the court, and any claimant alleges that he is entitled under a bill of sale or otherwise to such goods by way of security for a debt, the magistrate may order a sale of the whole or part thereof, and may direct the application of the proceeds of such sale in such manner and upon such terms as may be just. A duplicate of such order shall be delivered by the clerk to the bailiff, who shall thereupon forthwith sell the goods pursuant to the order, and after deducting the expenses of the sale shall pay the balance of the proceeds into court, and such balance shall thereupon be applied by the clerk in accordance with the directions contained in the order of the court.

12. 2Order on interpleader