Supreme Court Act 1935

Rules of the Supreme Court 1971

 

Rules of the Supreme Court 1971

Contents

Order 1 — Application, elimination of delay and forms

1.Short title2

2.Commencement and saving2

3.Certain proceedings excluded2

3A.Inherent powers not affected4

4.Terms used4

4A.Delays, elimination of7

4B.Case flow management, use and objects of8

4C.Parties to notify settlement8

6.Forms9

6A.Forms under Restraining Orders Act 19979

7.Court fees9

8.Documents given to authorised users or Court by means of EDS10

Order 2 — Effect of non‑compliance

1.Non‑compliance with rules11

2.Application to set aside for irregularity11

Order 3 — Time

1.Term used: month13

2.Reckoning periods of time13

3.Period between 24 Dec and 15 Jan excluded when computing time13

4.Time expiring on day Central Office closed, effect of14

5.Extending and abridging time14

6.Extension of time where security ordered14

7.Notice of intention to proceed after year’s delay15

Order 4A  Case management

Division 1 — Preliminary matters

1.Terms used16

2.Term used: case management direction16

3.Term used: enforcement order21

4.Inconsistencies with other rules21

Division 2 — Provisions applicable to all cases

4A.Case management conferences21

5.Case manager may review case at any time22

5A.Requesting interlocutory orders and case management directions23

5B.Request under r. 5A by letter23

5C.Request under r. 5A at case management conference or hearing25

6.Timetables25

7.Attendance at proceedings under this Order26

8.Conferences of parties with mediator27

9.Referees28

Division 3 — Cases on the CMC List

10.Application of this Division29

11.Cases on CMC List30

12.Headings to documents30

13.CMC List case manager may direct case to be on or taken off CMC List31

14.Requesting case be put on CMC List31

14A.Strategic conferences32

15.Interlocutory hearings32

Division 4 — Cases not on the CMC List

16.Application of this Division33

18.Case management conferences for cases not on CMC List33

19.Powers of case manager at case management conferences for cases not on CMC List35

20.Listing conference36

Division 5 — Inactive Cases List

21.Term used: Inactive Cases List37

22.Case manager may direct party to show cause37

23.Springing order that case be put on Inactive Cases List37

24.Cases inactive for 12 months deemed inactive38

25.Parties to be notified of case being on Inactive Cases List38

26.Consequences of case being on Inactive Cases List38

27.Removing cases from Inactive Cases List39

28.Certain cases taken to have been dismissed39

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

1.Commencing civil proceedings41

2.Applications in pending proceedings41

3.Individual may act in person or by solicitor; body corporate must act by solicitor41

Order 4AA — Mortgage actions

1.Terms used42

2.Application42

3.Commencing mortgage actions43

4.Transitional provision for former Order 62A43

Order 5 — Writs of summons

1.Form of writ45

2.Writ for service outside WA, form of45

3.Place of trial to be shown45

4.Place of issue45

5.Preparation of writ45

6.Sealing of writ45

7.Copy to be left with officer45

8.Writ to be recorded when issued46

9.Writ for service outside Australia, leave to issue needed46

10.All writs to be in name of Chief Justice or Senior Puisne Judge46

11.Time for appearance to be stated in writ46

Order 6 — Indorsement of claim: other indorsements

1.Nature of claim etc. to be indorsed on writ48

2.Action for defamation by publication48

3.Statement of claim may be indorsed on writ in some actions48

4.Claim for liquidated demand, indorsements required for, costs etc.48

5.Representative character49

6.Claim for account49

7.Writ etc. to state contact details49

Order 7 — Duration and renewal of writ: concurrent writs

1.Duration and renewal of writ50

2.Proof of extension of validity of writ50

3.Concurrent writs51

4.Unserved writs may be struck out52

Order 8 — Disclosure by solicitors: change of solicitors

1.Solicitor to declare, if required to, whether writ issued by him53

2.Change of solicitor53

4.Appointment of solicitor by self-represented person54

5.Intention to act in person, notice of54

5A.Form and content of notices54

6.Removal of solicitor from record54

7.Withdrawal of solicitor who has ceased to act for party55

8.Effect of order made under this Order56

9.Service details of party whose solicitor is removed56

11.Solicitor not to act for adverse parties57

12.Practitioner or clerk not to be security57

Order 9A — Interested non‑parties

1.Term used: interested non‑party58

2.Parties to advise identity of interested non‑parties58

3.Duties of interested non‑party58

Order 9 — Service of originating process: general provisions

1.Service of writ, general provisions60

2.Service of writ as to contract on agent of principal who is outside WA61

3.Serving writ in accordance with contract, effect of61

4.Writ for possession of land where no person in possession, service of62

5.Service of other originating process63

Order 10 — Service out of the jurisdiction

1A.When leave to serve is required; application of r. 9 to 1164

1.When service out of jurisdiction is permissible64

2.Service out of jurisdiction of writ etc. as to contract67

4.Application for leave under r. 1 or 267

5.Time for appearance67

7.Other documents, service of outside Australia68

8.Saving of existing practice68

9.Service abroad through foreign or diplomatic officials68

10.Service abroad, general and saving provisions70

11.Undertaking to pay expenses of service71

Order 11 — Service of foreign process

1.Terms used72

2A.Application of this Order72

2.Service pursuant to letter of request for service72

3.Service under Convention73

4.Service to be through sheriff74

5.Consequential orders74

Order 11A  Service under the Hague Convention

Division 1 — Preliminary

1.Terms used76

2.Provisions of this Order to prevail78

Division 2 — Service abroad of local judicial documents

3.Application of this Division78

4.Application for request for service abroad79

5.How application to be dealt with81

6.Procedure on receipt of certificate of service82

7.Payment of costs83

8.Evidence of service84

Division 3 — Default judgment following service abroad of initiating process

9.Application of this Division84

10.Restriction on power to enter default judgment if certificate of service filed84

11.Restriction on power to enter default judgment if certificate of service not filed86

12.Setting aside judgment in default of appearance86

Division 4 — Local service of foreign judicial documents

13.Application of this Division87

14.Certain documents to be referred back to Attorney‑General’s Department of Commonwealth88

15.Service89

16.Affidavit as to service90

Order 12 — Appearance

1.Who may enter appearance92

2.How to enter an appearance92

3.Procedure on receipt of requisite documents92

4.Appearance to be served on plaintiff93

5.Late appearance93

6.Conditional appearance93

7.Setting aside writ etc. before appearance94

8.Person not named may defend action for possession of land94

9.Person appearing under r. 8 to be named as defendant94

10.Limiting defence in action for possession of land95

Order 13 — Judgment in default of appearance to writ

1.Plaintiff may enter judgment if defendant fails to enter appearance96

2.Claim for liquidated demand96

3.Claims for unliquidated damages97

4.Claim relating to detention of goods (excluding mortgage actions)97

5.Claim for possession of land (excluding mortgage actions)98

6.Mortgage actions99

7.Content of affidavit required by r. 6(2)(b)(ii)100

8.Writs for 2 or more claims to which r. 2 to 6 apply102

9.Writs for other claims103

10.Entry of judgment for costs only upon writs for other claims103

11.Reference to Court in case of doubt or difficulty104

12.Default judgment to inform defendant of certain matters104

13.Service of default judgment105

14.Setting aside or varying default judgment105

Order 14 — Summary judgment

1.When plaintiff may apply for summary judgment106

2.Application under r. 1, how to make106

3.Judgment may be given for plaintiff107

4.Defendant may be given leave to defend107

6.Summary judgment on counterclaim108

7.Court’s powers if leave to defend given etc.108

8.Costs109

9.Right to proceed with residue of action or counterclaim109

10.Judgment for delivery of specific chattel110

11.Relief from judgment for recovery of land110

12.Summary judgment against absent party may be set aside or varied110

Order 16 — Summary judgment on application of defendant

1.Application by defendant for summary judgment111

2.Plaintiff may show cause111

3.Court’s powers if action to go to trial112

4.Summary judgment against absent party may be set aside or varied112

Order 17 — Interpleader

1.When interpleader relief may be granted113

2.How to apply for interpleader relief113

3.Time for application by defendant114

4.Stay of proceedings114

5.Court’s powers on application114

6.Summary determination114

7.Where question of law only114

8.Claimant failing to appear etc.115

9.Power to order sale of goods115

10.Discovery etc. and trial115

11.One order where several causes pending115

15.Orders as to costs etc.116

Order 18 — Causes of action, counterclaims and parties

1.Joinder of causes of action117

2.Counterclaim against plaintiff117

3.Counterclaim against additional parties118

4.Joinder of parties119

5.Court may order separate trials etc.120

6.Misjoinder and nonjoinder of parties120

7.Change of parties by reason of death etc.121

8.Order made under r. 6 or 7, consequences of122

9.Failure to proceed after death of party123

10.Action for possession of land, joining non-party who is in possession124

11.Relator actions125

12.Representative proceedings125

13.Representation of interested persons who cannot be ascertained etc.126

14.Representation of beneficiaries by trustees etc.127

15.Representation of deceased person interested in proceedings128

16.Declaratory judgment128

17.Conduct of proceedings129

Order 19 — Third party and similar proceedings

1.Third party notice130

2.Application for leave to issue third party notice131

3.Issue and service of, and entry of appearance to, third party notice131

4.Third party directions132

5.Default of third party etc.133

6.Setting aside third party proceedings134

7.Judgment between defendant and third party134

8.Claims and issues between defendant and another party134

9.Claims by third and subsequent parties135

10.Offer of contribution136

11.Counterclaim by defendant136

12.Costs137

Order 20 — Pleadings

1.Statement of claim, service of138

2.Statement of claim, content of138

3.Pleadings etc. to be filed before service138

4.Defence, service of139

5.Reply and defence to counterclaim, service of139

6.Pleadings subsequent to reply etc., leave required for140

7.Pleadings, formal requirements of140

8.Facts, not evidence, to be pleaded141

9.Matters which must be specifically pleaded142

10.Matter may be pleaded whenever arising143

11.Party’s pleadings to be consistent143

12.Points of law may be pleaded143

13.Particulars of claims etc.143

13A.Particulars in defamation actions145

14.Admissions, traverses etc.146

15.Denial by joinder of issue146

16.Defence of tender not available without payment into court147

17.Defence of set‑off147

18.Counterclaim and defence to counterclaim147

19.Striking out pleadings etc.148

20.Close of pleadings149

21.Trial without pleadings149

22.Preparation of issues150

23.Collision between vessels, content etc. of Preliminary Act150

24.Failure to file Preliminary Act152

Order 21 — Amendment

1.Amending writ without leave154

2.Amending memorandum of appearance154

3.Amending pleadings without leave154

5.Amending writ or pleading with leave155

6.Amending other originating process156

7.Amending other documents156

8.Failure to amend after order156

9.How amendments to be made156

10.Clerical errors etc., correcting (slip rule)157

11.Service of amended documents157

Order 23 — Discontinuance

1.Withdrawing appearance158

2.Plaintiff may discontinue; defence etc. may be withdrawn158

3.Costs159

4.Subsequent action stayed pending payment159

5.Withdrawal of summons159

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

9.In certain cases no payment out without order160

11.Intestate’s estate, Court may direct some payments without administration160

12.Regulations (Sch. 3)161

Order 24A — Offer of compromise

1.Parties entitled to make offer162

2.Application of this Order to counterclaims and third party notices162

3A.How to make offer162

3.Time etc. for making, accepting etc. offer162

4.Time for payment of sum offered164

5.Withdrawing acceptance of offer164

6.Offer without prejudice165

7.Disclosure of offer to Court165

8.Failure to comply with accepted offer165

9.Multiple defendants166

10.Costs166

Order 25 — Security for costs

1.Factors that are not grounds for ordering security for costs169

2.Grounds for ordering security for costs169

3.Court has discretion170

4.Term used: plaintiff170

5.Manner of giving security170

6.Action may be stayed170

7.Payment out170

8.Saving171

Order 26 — Discovery and inspection

1A.Terms used172

1B.Documents not wholly discoverable172

1.Discovery without order173

2.Continuing obligation to give discovery174

3.Determination of issue relevant to right to discovery175

4.List of documents and verifying affidavit, form, content and making of175

5.Defendant entitled to copy of co‑defendant’s list etc.176

6.Order for information as to particular documents177

7.Orders as to discovery177

8.Inspection of documents in list178

8A.Procedure on discovery179

9.Order for inspection of documents180

10.Order for production to Court181

11.Order for production etc. only if necessary181

11A.Costs of preparing document to facilitate inspection182

12.Claim of privilege182

13.Inspection of copies of business books182

14.Public interest immunity not affected183

15.Non‑compliance with requirements for discovery etc.183

16A.Certificate by practitioner184

16.Revocation and variation of orders184

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

1.Terms used185

2.Public interest immunity not affected185

3.Discovery etc. to identify a potential party185

4.Discovery from potential party186

5.Discovery from non‑party187

6.Order 26 applies to discovery ordered under this Order188

7.Costs188

8.Certificate by practitioner for non‑party or potential party188

Order 27 — Interrogatories

1.Notice of and answers to interrogatories190

2.Answers, time for and manner of giving190

3.Interrogatories given to 2 or more parties etc., who has to answer190

4.Content of answers191

5.Grounds for objecting to answer191

6.Answers, who can make191

7.Failing to answer or to answer sufficiently192

8.Non‑compliance with order under r. 7192

9.Use of answers in evidence193

10.Revoking and varying orders193

Order 28 — Medical examination: inspection of physical objects

1.Medical examination of a party194

2.Inspection of physical objects195

Order 30 — Admissions

1.Admission of other party’s case197

2.Notice to admit facts197

3.Judgment on admissions197

4.Admissions as to and production of documents198

5.Notice to admit authenticity of documents; notice requiring production of documents at trial199

Order 31 — Special cases and stated cases

1.Questions of law, stating of in special case200

2.Preliminary question of law, orders as to200

3.Preparing special case200

4.Special case affecting person under disability, leave needed to enter for argument201

5.Entering special case for argument201

6.Agreement as to payment of money and costs201

7.Reference of case to Court of Appeal (Act s. 58(1)(d))202

8.Cases stated to Court (not Court of Appeal) by other courts etc.202

Order 32 — Place and mode of trial

1.Trial in circuit town204

2.Application for trial by jury204

3.Usual mode of trial, other modes204

4.Time of trial of questions or issues204

5.Issues may be tried differently204

6.Trial with jury to be by single judge205

7.Disposal of action205

8.Trial by jury, precepts for etc.205

Order 33 — Entry for trial

1.Entry for trial206

2.Consequences of failing to enter for trial as directed206

3.Notice of entry207

4.Form of entry for trial207

14.Papers for judge207

Order 34 — Proceedings at trial

1A.Outlines for trial209

1.Absence of both parties at trial209

2.Absence of one party at trial209

3.Setting aside judgment given in absence of party209

4.Adjournment of trial210

5.Conduct of trial210

5A.Time etc. limits at trial211

6.Evidence in mitigation of damages for defamation211

7.Inspection by judge or jury212

8.Judgment at or after trial212

9.Record of proceedings212

10.Where time occupied by trial excessive213

11.Entry of findings of fact on trial213

12.Certificate for entry of judgment213

13.Exhibits213

14.Return of exhibits214

15A.Return of document etc. to non-party who produced it under subpoena215

16.Death of party before judgment is given215

17.Impounded documents216

18.Assessment of damages by master216

19.Damages to time of assessment216

20.Writ of inquiry not to be used217

Order 35 — Assessors and referees

1.Trial with assessors218

2.Trial before referee218

3.Evidence before referee218

4.Authority of referee218

5.Referee cannot order imprisonment218

6.Referee may submit question to Court219

7.Notice of referee’s report219

8.Adoption etc. of referee’s report in adjourned case219

9.Adoption etc. of referee’s report where case not adjourned219

10.Costs220

11.Application of this Order to other references220

Order 36 — Evidence: general

1.Facts to be proved usually by oral evidence in open court221

2.Evidence by affidavit221

3.Evidence of children etc. (Evidence Act 1906 s. 106S)221

4.Reception of plans etc. in evidence222

5.Orders under r. 2 or 4 may be revoked or varied222

6.Trials of issues etc., evidence in222

7.Depositions as evidence222

8.Court documents admissible in evidence223

9.Evidence at trial may be used in subsequent proceedings223

10.Evidence in another cause223

11.Production of documents224

20.Interest for purposes of Act s. 32224

Order 36A — Expert evidence

1.Expert evidence225

Order 36B — Subpoenas

1.Terms used226

2.Issuing subpoenas227

3.Form of subpoena229

4.Service of subpoenas231

5.Party may request notice that subpoena to produce has been obeyed231

5A.Altering date for attendance or production231

6.Compliance with subpoena232

7.Production otherwise than at a trial234

8.Setting aside subpoena to attend to give evidence234

8A.Setting aside subpoena to produce and directions as to things to be produced235

8B.How requests under r. 8 and 8A to be made235

9.Inspecting and dealing with documents and things produced otherwise than at a trial236

10.Disposal of documents and things produced237

11.Costs and expenses of compliance238

12.Failure to comply with subpoena is contempt of court239

13.Documents and things in custody of court239

Order 37 — Affidavits

1.Title of affidavits241

2.Form of affidavits241

3.Affidavits by 2 or more deponents242

5.Irregularity243

6.Contents of affidavits243

7.Scandalous matter244

9.Exhibits244

13.Affidavits to be filed245

14.Affidavits not to be filed out of time without leave245

15.Alterations in accounts245

16.This Order additional to Oaths, Affidavits and Statutory Declarations Act 2005245

Order 38 — Evidence by deposition

1.Power to order depositions to be taken246

4.Enforcing attendance of witness246

5.Refusal of witness to attend or be sworn247

6.Time and place of examination, notice of247

7.Documents to be given to examiner247

8.Practice on examination248

9.Expenses of witnesses248

10.Additional witnesses may be examined with parties’ consent248

11.How depositions to be taken249

12.Objection to questions250

13.Examiner may give Court special report250

14.Oaths250

15.Perpetuating testimony250

16.Examiner’s fees251

17.Payment of examiner’s fees252

Order 38A — Examination of witnesses outside the State

1.Terms used253

2.Order applies to Act s. 110 and 111253

3.Applications under Act s. 110 and 111 in civil proceedings253

4.Application under Act s. 110 and 111 in criminal proceedings254

5.Orders under Act s. 110 and 111254

6.Manner of examination255

7.Examiner’s remuneration255

Order 39 — Taking of evidence for foreign and Australian courts

1.Terms used256

2.Applications under Act s. 116256

3.Orders under Act s. 117256

4.Examiner’s remuneration257

4A.Examiner’s power to administer oaths257

5.Transmission of depositions257

6.Procedure where witness claims privilege258

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

Division 1 — General

1.Term used: Act260

2.Application of this Order260

Division 2 — Subpoenas to be served in New Zealand

2A.Form of subpoenas260

3.Leave to serve subpoena (Act s. 31)261

4.Setting aside subpoena (Act s. 35 and 36)262

5.Failure to comply with subpoena (Act s. 38)263

Division 3 — Remote appearances from New Zealand

6A.Appearances by audio link or audiovisual link (Act s. 48)264

6.Evidence by audio link or audiovisual link (Act s. 50)265

Division 4 — Registration and enforcement of NZ judgments

7.Setting aside registration of NZ judgment (Act s. 72)266

8.Stay of enforcement of registered NZ judgment (Act s. 76)267

Order 40 — Court experts

1.Terms used268

2.Court expert, appointment of etc.268

3.Report of Court expert269

4.Cross‑examination of Court expert269

5.Remuneration of Court expert269

6.Further expert witnesses270

Order 41 — Motion for judgment

1.Judgment to be on motion271

2.When motion for judgment may be set down after trial etc.271

3.Motion for judgment before trial etc. of all issues271

4.Motion for judgment to be set down within one year272

5.Court may draw inferences and determine questions272

Order 42 — Entry of judgment

1.Mode and form of entry273

2.Date from which judgment or order takes effect273

3.Orders to do an act, time for obeying to be specified273

4.Entering judgment on filing of affidavit etc.273

5.Entering judgment pursuant to order etc.274

6.Entering judgment on certificate of master or registrar274

7.Entering judgment by consent when party appears by solicitor274

8.Entering judgment by consent where defendant has not appeared or is self‑represented274

9.Satisfaction of judgments275

Order 43 — Drawing up judgments and orders

1.Drawing up etc. judgments etc.276

2.When order need not be drawn up276

3.Authentication of judgments and orders277

4.Judgments and orders to be court record; issue and use of duplicates277

5.Amending orders278

6.Draft judgment or order to be filed278

7.Appointment to settle draft279

8.Attendance on settling draft279

9.Default of attendance on settling draft280

10.Dispensing with appointment280

11.Registrar’s and Court’s powers to settle judgments etc.280

12.Party to engross settled judgment or order281

13.Certificate for special allowance on taxation of costs281

14.Entry of judgments and orders281

15.Application to vary282

16.Consent orders282

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

1.Terms used284

2.Application of this Order284

3.Application for registration (Act s. 6)284

4.Evidence in support of application285

5.Security for costs286

6.Order for registration286

7.Record to be kept of registered judgments287

8.Notice of registration287

9.Indorsement of service288

10.Application to set aside registration288

11.Enforcing registered judgment288

12.Determination of certain questions289

13.Certified copy of judgment obtained in this State289

Order 45 — Accounts and inquiries

1.Summary order for account to be taken292

2.Direction for accounts etc. may be made at any stage292

3.Directions to be numbered292

4.Directions as to mode of taking account292

5.Account to be verified293

6.Vouchers and contested etc. items, directions as to293

7.Surcharge or error, notice of293

8.Allowances that can be made without direction294

9.Expediting proceedings294

10.Distributing fund before all persons entitled are ascertained294

11.Master etc. may be ordered to take accounts or make inquiries295

12.Right to adjournment from registrar etc.295

Order 46  Civil Judgments Enforcement Act 2004 rules

1.Terms used296

2.Applications that may be dealt with by registrar296

3.Enforcing judgment in action between partners297

Order 51 — Receivers

1.Application for receiver and injunction298

3.Security to be given by receiver298

4.Remuneration of receiver299

5.Accounts by receiver299

6.Payment of balances by receiver299

7.Default by receiver300

8.Final accounts to be filed300

9.Compensation to party restrained301

10.Compensation by applicant to party restrained301

11.Application to Civil Judgments Enforcement Act 2004301

Order 52 — Interlocutory injunctions, interim preservation of property

1.Application for injunction302

2.Detention etc. of property; securing funds in dispute302

3.Power to order taking of samples etc.303

4.Disposal of perishable property etc.303

5.Order for early trial on application for receiver, injunction etc.304

6.Recovering personal property subject to lien304

7.Directions305

8.Allowance of income or transfer of property during case305

9.Injunction to include undertaking as to compensation to party restrained305

10.Compensation to party restrained by undertaking306

Order 52A  Freezing orders

1.Terms used307

2.Freezing order307

3.Ancillary order307

4.Respondent need not be party to proceeding308

5.Order against judgment debtor, prospective judgment debtor or third party308

6.Court’s other jurisdiction not affected310

7.Service outside Australia of application for order310

8.Costs310

Order 52B  Search orders

1.Terms used311

2.Search order311

3.Requirements for making of search order311

4.Court’s other jurisdiction not affected312

5.Terms of search order312

6.Independent solicitors, appointment of etc.313

7.Costs313

Order 53 — Sales of land by the Court

1.Term used: land315

2.Power to order sale of land315

3.Manner of sale315

4.Directions315

5.Certificate of sale316

6.Mortgage, exchange or partition316

7.Reference of matters to counsel317

8.Objection to counsel’s opinion317

Order 54 — Originating and other motions

1.Application of this Order318

2.Which applications to be made by motion318

3.Notice of motion318

4.Time of notice of motion318

5.Form of notice of motion318

6.Issue of notice of motion319

7.Service of notice of motion with writ etc.319

8.Adjournment etc.319

Order 55 — Committal and attachment

1.Term used: contemnor320

2.Committal for contempt of court320

3.Contempt in face of Court320

4.Other cases of contempt321

5.Form and service of notice or summons321

6.Arresting contemnors322

7.Punishing contemnors322

8.Execution of committal order may be suspended322

9.Discharge from committal323

10.Saving for other powers323

11.Court may make peremptory order in first instance323

12.Application of r. 6 to 9 to attachment etc.324

Order 56  Judicial review

Division 1 — General

1.Terms used325

2.Making an application326

3.Serving an application327

4.Options of person served with application327

5.Procedure on application327

6.Discovery and interrogatories329

7.Costs329

10.Issue and filing of writs329

Division 2 — Certiorari

14.Forms330

Division 3 — Mandamus

15.Applicant to show interest etc.330

16.Form of writ331

17.Time for return of writ331

18.Service331

19.Service on corporate body, or justices332

20.Return, content etc. of332

21.Pleading to return332

22.No motion for judgment needed in some cases333

23.Peremptory writ333

24.Costs333

25.Proceedings in nature of interpleader333

26.Proceedings not to abate due to death etc.334

28.Mandamus by order334

29.No action against party obeying writ or order334

Division 4 — Prohibition and procedendo

30.Court may direct service of statement of claim instead of issuing prohibition335

31.Proceedings on judgment335

32.Writ of procedendo335

33.Prohibition by order336

Division 5 — Quo warranto

34A.Application for information of quo warranto336

34.Rules of court applicable336

35.Signature and service of information336

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

1.Terms used337

2.Application for review order, making337

3.Application for review order, procedure on338

4.Review order, service of339

5.Review order, hearing of339

6.Final order, making and service of340

Order 57 — Habeas corpus

1.Application for writ341

2.Power of Court when ex parte application made341

3.Copies of affidavits to be supplied342

4.Court may order release of person restrained342

5.Signed copy of writ to be filed342

6.Order for issue of writ, contents of343

7.Service of writ and notice343

8.Return to writ of habeas corpus344

9.Procedure on hearing344

10.Form of writ344

Order 58 — Proceedings by originating summons

Division 1 — Introductory

1.Which proceedings to be commenced by originating summons345

Division 2 — Administration and trusts

2.Executors etc. seeking certain relief without administration345

3.Executors etc. applying for administration346

4.Service of summons issued under r. 2 or 3346

5.Decision without judgment for administration347

6.Orders which may be made on application for administration etc. of trusts347

7.Interference with discretion of trustee etc.348

8.Conduct of sale of trust property348

Division 4 — Declaration on originating summons

10.Construction of written instruments348

11.Construction or validity of legislation349

12.Court may refuse to determine summons in some cases349

13.Effect of contracts for sale etc. of land349

Division 5 — General

14.Form and issue of originating summons349

15.Order 7 applies to originating summons350

16.Time for appearance350

17.Entry of appearance350

18.When appearance not required351

18A.Time for service where appearance not required351

19.Fixing time for hearing summons352

21.Evidence at hearing to be by affidavit353

22.Hearings in absence of party353

23.Order made ex parte may be set aside354

24.Costs thrown away by non‑attendance of party354

25.Hearings not completed on hearing date354

26.Other matters that may be included in one summons354

27.Directions as to hearings, evidence etc.355

28.Adjourning hearings355

29.Court’s powers and procedure at hearings356

30.Transfer of Land Act 1893 s. 129C applications, directions as to356

Order 59 — Applications and proceedings in chambers

1.Business to be dealt with in chambers358

2.Hearings may be in open court or chambers359

3.Applications in chambers360

4.Summons, form and issue of360

5.Summons, service of361

6.Experts, assistance of361

7.Application of O. 58 r. 22 to 28361

8.Stay of proceedings, ordering362

9.Parties to confer before making application362

10.Orders, form of362

Order 60  Masters’ jurisdiction

1.Masters’ general jurisdiction363

2.Master may refer matter to judge or Court of Appeal364

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

1.Registrars’ general jurisdiction365

2.Registrars’ jurisdiction with respect to case management365

2A.Registrars to deal with applications within their jurisdiction367

3.Registrar may refer proceedings to judge or master367

4.Appeals from decisions of registrars368

5.Appeal procedure368

6A.Other parties to appeal to advise certain matters369

6.Appeal is by way of new hearing369

7.This Order not to apply to Court of Appeal Registrar369

Order 61 — Proceedings under judgments and orders

Division 1 — Application of order

1.Application to proceedings under orders370

Division 2 — Summons to proceed

2.Summons to proceed, requirement for and proceedings on370

3.Notice of judgment, Court may order service of in some cases371

4.Settling deed if parties differ, procedure for372

5.When service of notice of judgment may be dispensed with373

6.Judgment for accounts etc., power to bind persons in some cases373

7.Procedure where some parties not served etc.373

8.Course of proceedings in chambers374

Division 3 — Attendances

9.Classifying interests of parties374

10.Judge may require distinct solicitor to represent parties375

11.Attendance of parties not directed to attend375

12.Order stating parties directed to attend375

Division 4 — Claims of creditors and other claimants

13.Advertisements for creditors etc., power to direct375

14.Advertisements, preparation etc. of376

15.Advertisements, contents of376

15A.Claims to state claimant’s contact details376

16.Failure to claim within specified time376

17.Examination and verification of claims377

18.Adjudicating on claims378

19.Adjourning adjudications; fixing time for filing evidence etc.379

20.Service of notice of judgment on certain claimants379

21.Notice of claims allowed or disallowed380

Division 5 — Interest

23.Interest on debts381

24.Interest on legacies381

Division 6 — Masters’ and registrars’ certificates

25.Master’s certificate381

26.Settling and filing master’s certificate382

27.Judge may determine questions in proceedings before master382

28.Appeal against master’s certificate383

28A.Judge may discharge or vary registrar’s certificate383

Division 7 — Further consideration

29.Summons to have matter in chambers further considered384

Order 62 — Trustees Act 1962 rules

1.Making applications under Act386

2.Title of proceedings386

3.Payment into court under Act s. 99386

4.Notice of payment in etc.387

5.Applications in respect of money etc. paid into court387

Order 65  Appeals to the General Division

Division 1 — Preliminary matters

1.Terms used388

2.Application of this Order389

Division 2 — General matters

3.Hearings by telephone389

4.Judge’s general jurisdiction390

5.Non‑attendance by party, consequences of391

6.Decisions made in absence of party391

7.Decisions made on the papers391

Division 3 — Procedure on appeals

8.Nature of appeals392

9.Time for appealing392

10.Appeal, how to commence393

11.Primary court to be notified and to supply records394

12.Respondent’s options394

13.Interim order, applying for395

14.Urgent appeal order, nature of395

15.Consenting to orders396

16.Appeal books not needed unless ordered396

Division 4 — Concluding an appeal

17.Discontinuing an appeal396

18.Settling an appeal397

19.Return of exhibits397

Order 65C — Electoral Act 1907 section 62N rules

1.Term used: Electoral Commissioner400

2.Application of this Order400

3.Application for review400

4.Title of proceedings400

5.Hearing the review401

6.Date of hearing401

7.Review book402

8.Applicant limited to grounds in originating motion402

9.Right to be heard in opposition402

10.Additional affidavits, determination of issue etc.403

11.Order as to result of review403

12.Application of rules of court403

Order 66 — Costs

Division 1 — General

1.General rules as to costs404

2.Costs where several causes of action, defendants etc.405

3.Costs of amendment without leave or where facts or documents not admitted406

4.Action as to property, ordering costs out of property406

5.Lawyer may be ordered to pay costs etc.407

6.Solicitor guardian ad litem, costs of408

7.Set‑off may be allowed despite solicitor’s lien408

8.State solicitors, costs of409

8A.Lawyer acting pro bono, costs in case of409

9.Restriction of discretion to order costs in some cases409

10.Stage at which costs may be dealt with410

11.Scale of costs411

13.Costs where scale does not apply412

14.Lump sum award for costs, interim award as to412

17.Cases that Magistrates Court could have decided, costs in412

18.Matters not provided for in scale413

19.Disbursements etc. allowable on taxation414

20.Basis for calculating costs414

21.No substantial trial, costs in case of415

23.Certain fees in scales may be increased if inadequate415

24.Judgment for person under disability, solicitor’s costs in case of416

25.Own costs orders417

Division 2 — Taxation of costs

32.Bills of costs to be taxed419

33.Indorsements on bill of costs419

34.When notice of taxation need not be given419

35.Notice of taxation420

36.Vouchers as to disbursements to be filed420

37.Solicitor delaying taxation420

38.Appointment to tax costs to be peremptory420

39.Taxing officer may direct bills of costs to be brought in420

40.Default by party in taxing costs421

41.If costs payable out of property, notice to clients may be directed421

42.Bills of costs, content of421

43.Taxing officer’s decisions on fact are final422

44.Taxing officer’s powers422

45.Taxing officer may refer taxation question to Court423

46.Where proceedings adjourned into court423

47.Interrogatories and discovery, costs of423

48.Costs of motion etc. follow event424

49.Motion etc. stood over to trial and no order made as to costs, costs in case of424

50.Costs reserved424

51.When Court may fix costs424

52.Taxing officer may refer question to judge if costs to be apportioned etc.425

Division 3 — Review of taxation

53.Party dissatisfied with taxation may object and apply for review425

54.Review of taxation by taxing officer426

55.Review of taxation by judge427

56.No further evidence on review except with leave427

Division 4 — Miscellaneous

57.Taxing officer’s certificate enforceable as judgment427

58.Stay on review427

59.Party liable to be paid and to pay costs, taxing officer’s powers in case of428

60.Taking of accounts, taxing officer’s duties and powers on428

61.Interim certificate in matters of account428

Order 67 — Central Office, officers

1.Superintendence of Central Office430

2.Ministerial acts of registrar430

3.Taking of oaths and affidavits430

4.Seals430

5.Abuse of process etc., procedure in case of430

6.Sealed documents, evidentiary status of431

7.Petition, award etc. to be filed before judgment etc. passed431

8.Indexes to filed documents432

9.Date of filing to be marked etc.432

10.Custody of documents and things432

12.Deposit of documents433

13.Restriction on removal of documents433

14.Deposit for officer’s expenses433

15.Admissions, awards etc. to be filed433

16.New forms434

17.Accounts etc. to be taken by registrar, rules applying to434

18.Reference in judgment etc. to registrar, effect of434

19.Principal Registrar may declare EDS unavailable434

Order 67A  Filing documents

Division 1 — Preliminary matters

1.Terms used436

Division 2 — Filing documents

2.General rules about filing documents436

3.Documents must be filed using EDS437

4.Documents presented for filing using EDS or email438

5.Delivering documents for filing441

6.Posting documents for filing441

7.Faxing documents for filing442

8.How filed paper documents are to be dealt with443

Division 3 — Documents containing sensitive information

9.Terms used444

10.Person to advise Court if filing sensitive document445

11.Documents containing restricted information447

12.Documents containing information to which access should be restricted449

13.Restricted documents450

14.Documents that are not to be accessible to judiciary451

Division 4 — Miscellaneous matters

15.Principal Registrar may delegate453

16.Principal Registrar may refer matters to judge or master453

17.Appeals from decisions made under this Order453

Order 67B  Access to information and things held by the Court

Division 1 — Preliminary matters

1.Terms used454

2.Application of this Order455

3.Access to information and things under other legislation456

4.Order does not limit Court’s general power to release information456

Division 2 — Orders restricting access

5.Court’s powers to restrict access456

Division 3 — Entitlements to access

6.Entitlements of every person458

7.Entitlements of parties462

Division 4 — Access with the Court’s permission

8.Access with the Court’s permission463

9.When Court can give permission463

10.When media manager can give permission465

Division 5 — Applications for access

11.Applying for access466

12.Court’s powers as to applications for permission468

13.How applications are determined468

Division 6 — How access is given

14.How and when the Court gives access469

Division 7 — Access by non‑parties to documents in cases commenced before 1 March 2018

15.Application of this Division470

16.Documents that can be inspected or copied470

Division 8 — Miscellaneous matters

17.Registrars’ decisions may be dealt with by judge or master471

Order 68 — Sittings, vacations and office hours

1.Civil sittings472

2.Criminal sittings472

3.Court vacations472

4.Days included in sitting and vacation473

5.When Court’s offices are open473

6.Office hours473

7.Vacation Judge473

Order 69 — Paper, printing, notice, and copies

1.Printing of documents, rules as to474

2.Documents prepared by parties, requirements as to474

4.Copies of documents for other parties476

5.Requirements as to copies477

6.Copies of affidavits on certain ex parte applications477

Order 70 — Disability

1.Terms used479

2.Persons under disability suing or defending479

3.Next friend or guardian ad litem, appointment of480

4.Probate actions, special provisions for482

5.No appearance by person under disability, procedure on484

6.Time for application by person under disability to discharge or vary order under O. 18 r. 7486

7.Removal of next friend or guardian486

8.No implied admission from pleading486

9.Discovery and interrogatories487

10.Settlement etc. of action by person under disability487

10A.Settlement etc. of appeal by person under disability487

11.Settlement etc. before action commenced487

12.Control of money recovered for person under disability488

13.Personal service on person under disability489

Order 71 — Partners, business names

1.Partners may sue or be sued in name of firm491

2.Disclosure of partners’ names491

3.Service on firm492

4.Person served under r. 3 to be notified of character in which he is served492

5.Appearance of partners493

6.No appearance except by partners493

7.Appearance under protest of person served as partner493

9.Rules 1 to 7 apply also to some actions between firm and its members etc.494

11.Rules 2 to 9 apply to proceedings begun by originating summons494

12.Application to person using business name494

13.Application to charge partner’s interest in partnership etc.495

Order 71A  Contact details of parties and others

1.Addresses of places, requirements for496

2.Geographical addresses496

3A.Court may dispense with requirement to state geographical address497

3.Service details, meaning of498

4.Documents without contact details to be rejected499

5.Changes of information to be notified500

6.Fictitious details in documents, court powers as to500

Order 72 — Service of documents

1.When personal service required501

2.Personal service on individual501

3.Personal service on body corporate501

3A.Personal service on State502

4.Substituted service502

5.Ordinary service, how effected502

5A.Ordinary service, when effected504

6.Service of documents by Court505

6A.Serving documents by email506

7.Affidavits of service, content of506

8.No service required in certain cases506

Order 73 — Probate proceedings

1.Application of this Order and terms used507

2.Commencing probate action507

4.Intervention by person who is not defendant508

5.Citation against non-party with adverse interest508

6.Person cited failing to appear508

7.Entry of appearance508

8.Citation to executor etc. to bring in probate etc.509

8A.Applications to include draft citation509

9.Citations, issue of509

10.Citations, service of510

11.Affidavit of scripts510

12.Scripts in pencil, affidavits as to; inspecting affidavits of scripts511

13.Default of appearance511

14.Counterclaim512

15.Defendant may require only proof in solemn form512

16.Pleadings512

17.Default of pleadings513

18.Discontinuance513

19.Compromise514

20.Orders etc. to bring in will etc.514

21.Applications, making514

22.Administrator or receiver appointed pending litigation515

Order 75 — Family Provision Act 1972 rules 

1.Terms used516

2.Applications under Act, making of516

3.Copy of summons to be placed on probate file516

5.Court may make inquiries etc.517

6.Parties may be added518

7.Representative defendant518

8.Probate etc. to be lodged at Registry if judgment for plaintiff518

9.Appearance to originating summons for extension of time not required518

10.Certain documents cannot be filed519

Order 75A  Legal Profession Act 2008 rules

1.Terms used520

2.Application for admission520

3.Attendance at hearing of application for admission520

4.Oath or affirmation521

Order 76  Public Notaries Act 1979 rules

1.Terms used522

1A.Districts prescribed for Act522

2.Application for certificate of fitness (Act s. 8)524

3.Notice of intention to apply to be appointed Public Notary (Act s. 9)525

4.Application to be appointed Public Notary526

5.Certificates of appointment, form of526

6.Applications to suspend or strike off Public Notaries527

7.Fees payable on application for appointment527

Order 80  Escheat (Procedure) Act 1940 rules

1.Term used: said Act528

2.Applications for Order of Escheat, making528

3.Notice of applications, form of528

4.Evidence; judge may direct inquiry528

5.Claimants to file affidavit verifying claim and may be heard529

6.Judge may order issue to be tried529

7.Order of Escheat, form of529

8.Costs529

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

1.Terms used530

2.Applications for leave to have access (Act s. 14)530

3.Order granting leave, form of531

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

1.Terms used; how applications to be made532

2.Enforcing judgments under Act s. 105, procedure for532

3.Claiming interest under Act s. 108, procedure for533

4.Appeals under Act533

Order 81C  Road traffic legislation rules

1.Terms used534

2.Applications under RT (AD) Act s. 24, 27 or 35, how to be made534

3.Registrar’s functions when application is made535

4.Applicant to serve application etc.535

5.Hearing of application, appearance at536

6.Hearing of application, procedure on536

7.CEO to be notified of decision537

Order 81E — Cross‑vesting

1.Terms used538

2.Application of this Order538

3.Commencing proceedings that rely on cross-vesting laws538

4.Special federal matters539

6.Directions for conduct of proceedings539

7.Transfer of proceedings540

8.Applications to be dealt with by judge540

9.Transfer on Attorney General’s application (Act s. 5 or 6)541

10.Transfer under Act s. 8, Court’s powers on541

11.Procedure if laws etc. of other place to apply under Act s. 11(1)541

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

1.Terms used543

2.Applications under Act, how to be made543

3.Service on DPP (Cwlth) in Perth545

4.DPP to file grounds for contesting application545

5.Summons for directions545

6.Court may give directions at any time546

7.Representative respondent546

8.Evidence on applications547

9.Court may order separate hearing547

Order 81FA  Criminal Property Confiscation Act 2000 rules

Part 1 — Preliminary

1.Terms used548

Part 2 — Proceedings under the Confiscation Act 2000

2.Declarations under Act s. 30, applications for549

3.Other declarations or orders, applications for550

4.Affidavit in support required for some applications551

5.Objections to confiscation of property, making of551

6.DPP or CCC to be served551

7.Directions552

8.Conference not required552

9.Representative defendant552

Part 3 — Registration of freezing notices and interstate orders

10.Freezing notices, registration of etc.553

11.Interstate orders, registration of etc.553

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

1.Terms used555

2.General matters555

3.Claims, how to be made556

4.Defendant may file memorandum of appearance556

5.Defendant may file affidavit in response557

6.Applications in course of proceedings on claim557

7.Hearing claims557

8.Costs558

9.Documents cannot be filed electronically558

Order 81H  Surveillance Devices Act 1998 rules

1.Term used: Act559

2.Warrants, applications for559

3.Report to judge (Act s. 21 or 30)559

4.Order allowing publication etc. (Act s. 31), application for559

5.Identification of persons in documents560

6.Practice Directions560

7.Documents cannot be filed electronically560

Order 82 — Sheriff’s rules

7.Service of process by sheriff561

9.Fees etc. payable to sheriff, disputes as to561

11.Deposit on account of sheriff’s fees562

14.Travel distance by sheriff for service562

16.Non‑payment of sheriff’s fees, consequences of562

Order 83 — Consolidation of pending causes and matters

1.Causes may be consolidated564

2.Consolidation with action removed from another court564

3.Directions564

Order 84 — General rules

1.Repealed Orders not revived565

2.Cases not provided for565

3.Publication of written reasons for judgment565

4.Bankruptcy jurisdiction, duty of Registrar in Bankruptcy as to seals, records etc.566

5.Public Trustee Act 1941 s. 27, proceedings under566

6.Sale proceeds paid into court, claimants to must file affidavit567

7.Account by solicitor to client, applying for and order as to567

8.Interest and apportionment, certification of567

9.Admiralty Act 1988 (Cwlth) rules, registrar etc. may exercise powers etc. under568

Order 85  Federal Courts (State Jurisdiction) Act 1999 rules

1.Terms used569

2.Title of proceedings569

3.No proceedings on ineffective judgment before application to have it registered569

4.Ineffective judgment, application for registration of570

5.Ineffective judgments, registration of571

6.Act s. 10, application for order under571

7.Act s. 11, application for order under572

8.Act s. 11, effect of order under572

Schedule 2 — Forms

1.Writ of summons (general form) (O. 5 r. 1)574

2.Writ of summons indorsed with statement of claim (O. 5 r. 1)575

3.Writ of summons to be served outside WA577

4.Notice to defendant in action for possession, foreclosure or sale of mortgaged property (O. 4AA r. 3)578

5.Indorsements of representative capacity of parties (O. 6 r. 5)580

5A.Request for service abroad of judicial documents and certificate (O. 11A r. 4, 6 & 16)582

5B.Summary of the document to be served (O. 11A r. 4)585

7.Notice limiting defence (O. 12 r. 10)588

10.Forms for Order 18589

11.Third party notice (general form) (O. 19 r. 1)591

12.Third party notice where question or issue to be determined (O. 19 r. 1)592

17.List of documents (O. 26 r. 4(1) & 8)593

18.Affidavit verifying list of documents (O. 26 r. 4(3))596

21.Subpoena to give oral evidence (O. 36B r. 3(1))597

21A.Subpoena to produce documents (O. 36B r. 3(1))598

21B.Subpoena to give oral evidence and produce documents (O. 36B r. 3(1))601

22A.Subpoena notice and declaration (O. 36B r. 10(3))605

23.Subpoena to give evidence to WA Supreme Court (to be served in NZ) (O. 39A r. 2A)606

23A.Subpoena to produce documents to WA Supreme Court (to be served in NZ) (O. 39A r. 2A)611

23B.Subpoena to give evidence and produce documents to WA Supreme Court (to be served in NZ) (O. 39A r. 2A)617

25.Order for examination of witness before trial (O. 38 r. 1)625

26.Evidence Act 1906 s. 110 or 111, order under (O. 38A r. 5)626

28.Letter of request (O. 38A r. 3(4))628

29.Undertaking as to costs of letter of request (O. 38A r. 5)629

30.Evidence Act 1906 s. 117, order under (O. 39 r. 3)630

31.Certificate (O. 39 r. 5(2))631

31A.Application for subpoena to be set aside (O. 39A r. 4(1))631

31B.Request for application to be determined with hearing (O. 39A r. 4(8))632

31C.Request to appear remotely in hearing to set aside subpoena (O. 39A r. 4(9))632

31D.Certificate of non‑compliance with subpoena (O. 39A r. 5)633

32.Default judgment for liquidated demand (O. 13 r. 2; O. 42 r. 1)633

33.Default judgment where demand unliquidated (O. 13 r. 3; O. 42 r. 1)635

34.Default judgment in action relating to detention of goods other than in a mortgage action (O. 13 r. 4; O. 42 r. 1)636

35.Default judgment after assessment of damages etc. (O. 13 r. 3 & 4; O. 42 r. 1)638

36.Default judgment for possession of land other than in a mortgage action (O. 13 r. 5; O. 42 r. 1)639

36A.Notice to defendant of intention to request Court to make orders for possession, foreclosure or sale of mortgaged property (O. 13 r. 6)641

36B.Request to enter default judgment in a mortgage action (O. 13 r. 6)642

36C.Default judgment in a mortgage action (O. 13 r. 6; O. 42 r. 1)643

37.Judgment (other than default judgment) after assessment of damages etc. (O. 42 r. 1)645

38.Judgment under Order 14 (O. 14 r. 3)647

39.Judgment after trial without jury (O. 42 r. 1)647

40.Judgment after trial with jury (O. 42 r. 1)648

41.Judgment after trial before master or special referee (O. 42 r. 1)648

42.Judgment after decision of preliminary issue (O. 32 r. 7; O. 42 r. 1)649

43.Judgment for defendant’s costs on discontinuance (O. 23 r. 2)649

44.Judgment by consent (O. 42 r. 1(2))650

60.Summons for appointment of receiver (O. 51 r. 1)650

61.Order directing summons for appointment of receiver and granting injunction meanwhile (O. 51 r. 1)651

62.Receiver order (interim) (O. 51 r. 1)652

64.Notice of originating motion (O. 54 r. 5)652

65.Notice of motion (O. 54 r. 5)653

66.Order of committal (O. 55 r. 7(4))654

67.Certiorari (O. 56 r. 14)656

69.Mandamus (O. 56 r. 16)657

70.Procedendo (O. 56 r. 32)658

71.Prohibition (O. 56 r. 33)658

73.Habeas corpus (O. 57 r. 10)658

74.Originating summons, appearance required (O. 58 r. 14)659

75.Originating summons, appearance not required (O. 58 r. 14)660

76.Notice of appointment to hear originating summons (O. 58 r. 19)660

77.Summons (general form) (O. 59 r. 4(1))660

78.Order (general form) (O. 59 r. 10)661

80A.Appeal notice (Registrar’s decision) (O. 60A r. 5(3))661

80.Notice of judgment or order (O. 61 r. 3(3))664

81.Advertisement for creditors (O. 61 r. 15(2))664

82.Advertisement for claimants other than creditors (O. 61 r. 15(2))665

83.Appeal notice (O. 65 r. 10)666

84.Service certificate (O. 65 r. 10(7))667

85.Notice of respondent’s intention (O. 65 r. 12)668

86.Application in an appeal (O. 65 r. 13)669

87.Consent notice (O. 65 r. 15 & 18)669

88.Request for hearing (O. 65 r. 7)670

89.Discontinuance notice (O. 65 r. 17)670

93A.Public Notaries Act 1979 s. 8, certificate (O. 76 r. 2)671

93B.Notice of intention to apply for appointment as public notary (O. 76 r. 3)672

93C.Certificate of appointment as public notary Western Australia (O. 76 r. 5(1))672

93D.Certificate that name of public notary remains on roll (O. 76 r. 5(2))673

99.Escheat (Procedure) Act 1940, notice of application under (O. 80 r. 3)674

100.Escheat (Procedure) Act 1940, order of escheat (O. 80 r. 7)674

101.Application for extraordinary licence (O. 81C r. 2(1))675

102.Application by holder to vary extraordinary licence (O. 81C r. 2(2))676

103.Application by CEO to vary, cancel extraordinary licence (O. 81C r. 2(3))677

104.Application for removal of disqualification (O. 81C r. 2(4))679

108.Criminal and Found Property Disposal Act 2006, claim under (O. 81G r. 3)680

Schedule 3 — Payment into and out of court

Notes

Compilation table686

 

Supreme Court Act 1935

Rules of the Supreme Court 1971

Order 1 — Application, elimination of delay and forms

[Heading inserted: Gazette 26 Mar 1993 p. 1840.]

1.Short title

These rules may be cited as the Rules of the Supreme Court 1971 1.

2.Commencement and saving

(1)These rules shall take effect on 14 February 1972.

[(2)deleted]

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

[Rule 2 amended: Gazette 21 Feb 2007 p. 533; 22 Feb 2008 p. 634.]

3.Certain proceedings excluded

(1)Subject to the provisions of this Order, these rules shall have effect in relation to all proceedings in the Supreme Court.

(2)These rules shall not have effect in relation to proceedings of the kinds specified in the first column of the following Table (being proceedings in respect of which rules may be made under the enactments specified in the 2nd column of that Table) — 

Table

Proceedings

Enactments

[1.deleted]

 

2.Non‑contentious or common form probate business.

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

[3.deleted]

 

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

Electoral Act 1907, s. 173.

(3)These rules, save as expressly provided, shall not apply to — 

(a)any criminal proceedings;

[(b)deleted]

(c)matters of practice or procedure or other matters to which rules of court made pursuant to a power conferred by any Act of the Commonwealth, apply.

(4)In the case of proceedings mentioned in subrules (2) and (3), nothing in those subrules shall be taken as affecting any provision of any rules (whether made under the Act or any other Act) by virtue of which the rules of the Supreme Court or any provisions thereof are applied in relation to any of those proceedings.

[Rule 3 amended: Gazette 10 Sep 1973 p. 3428; 28 Jun 1994 p. 3049; 8 May 2000 p. 2161; 29 Dec 2000 p. 7918; 27 Jul 2001 p. 3895; 21 Feb 2007 p. 533; 28 Jun 2011 p. 2552‑3.]

3A.Inherent powers not affected

The inherent power of the Court to control the conduct of a proceeding is not affected by these rules.

[Rule 3A inserted: Gazette 28 Oct 1996 p. 5673.]

4.Terms used

(1)In these rules, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, namely — 

Accountant means the chief finance officer, designated under the Financial Management Act 2006 section 57, of the department of the Public Service principally assisting in the administration of the Act;

Act means the Supreme Court Act 1935;

Australian diplomatic or consular agent includes a person appointed to hold or act in any of the following offices (being an office of the Commonwealth) in a country or place outside Australia  — 

(a)ambassador; and

(b)high commissioner; and

(c)minister; and

(d)head of mission; and

(e)commissioner; and

(f)chargé d’affaires; and

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

(h)consul‑general; and

(i)consul; and

(j)vice‑consul; and

(k)trade commissioner; and

(l)consular agent;

authorised user, of the EDS, means a person who is registered with the Court to send documents to the Court, and to receive documents from the Court, by means of the EDS;

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

Cause Book means the book kept in the Central Office, in the manner directed by the Chief Justice from time to time, in which the number of and other details relating to a cause or matter are recorded;

Central Office means the central office of the Supreme Court at Perth ;

consular agent means a consul‑general, consul, vice‑consul, pro‑consul or consular agent, or acting consul‑general, acting consul, acting vice‑consul, acting pro‑consul, or acting consular agent;

costs includes fees to counsel, charges, disbursements, expenses and remuneration;

Court includes any officer of the Court exercising powers of the Court delegated to the officer by these rules;

diplomatic agent means an ambassador, envoy, minister, chargé d’affaires, or secretary of an embassy or a legation;

EDS means the Court’s electronic document system;

file, in relation to a document, means to comply with Order 67A in relation to the document;

file electronically, in relation to a document, means file the document under Order 67A using the EDS;

filed document means —

(a)a document that —

(i)has been filed with the Court; and

(ii)has not been refused by the Court; and

(iii)has been officially recorded by the Court as having been filed;

and

(b)any other document officially recorded by the Court as being a filed document;

folio means 72 words, each figure being counted as one word;

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

geographical address of a person, has the meaning given by Order 71A rule 2;

master means a master of the Supreme Court, and includes an acting master;

mortgage action has the meaning given in Order 4AA rule 1(1);

officer means an officer of the Supreme Court;

originating summons means every summons other than a summons in a pending cause or matter;

practitioner means an Australian legal practitioner as defined in the Legal Profession Act 2008 section 3;

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

probate action has the meaning assigned to it by Order 73;

proper officer shall mean an officer to be ascertained as follows:

(a)where any duty to be discharged under any Act or these rules is a duty which has heretofore been discharged by any officer, such officer shall unless otherwise provided by these rules continue to be the proper officer to discharge the same;

(b)where under any Act or these rules any new duty is to be discharged, the proper officer to discharge the same shall be the officer directed by these rules, or if no such officer, such other officer as may from time to time be directed by the Chief Justice to discharge the same;

(c)when any doubt arises as to who is the proper officer to discharge any duty the Chief Justice may direct by what officer such duty is to be discharged;

receiver includes a manager or consignee;

registrar means a person for the time being holding or acting in an office designated under the Supreme Court Act 1935, “Registrar of the Supreme Court”, and a reference to the registrar or to a registrar may include a reference to the Principal Registrar or a deputy registrar;

rules, these rules or rules of court means these rules, and includes — 

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

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

service details of a person, has the meaning given by Order 71A rule 3;

taxing officer includes a registrar, and any other officer of the Court having power to tax costs;

trial includes hearing;

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

writ means a writ of summons.

[(2)deleted]

[Rule 4 amended: Gazette 14 Dec 1979 p. 3869; 30 Nov 1984 p. 3951‑2; 28 Oct 1996 p. 5674; 19 Apr 2005 p. 1298; 21 Feb 2007 p. 533‑4; 3 Jul 2009 p. 2699; 28 Jul 2010 p. 3440 and 3482; 28 Jun 2011 p. 2551; 16 Nov 2016 p. 5185; 16 Aug 2017 p. 4392; 27 Feb 2018 p. 551-2.]

4A.Delays, elimination of

The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.

[Rule 4A inserted: Gazette 26 Mar 1993 p. 1840.]

4B.Case flow management, use and objects of

(1)Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of — 

(a)promoting the just determination of litigation; and

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

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

(d)facilitating the timely disposal of business; and

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

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

(2)These rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in subrule (1).

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

4C.Parties to notify settlement

When any cause or matter is disposed of in whole or in part by settlement the solicitors for the parties to the settlement shall notify the Principal Registrar in writing forthwith.

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

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

6.Forms

(1)The forms in Schedule 2 shall be used where applicable with such variations as the circumstances of the particular case require, and the reference to any form in or at the end of any rule shall be read as referring to the appropriate Form in Schedule 2 and as a direction to use that Form for the purpose indicated by the rule.

[(2)deleted]

[Rule 6 amended: Gazette 30 Nov 1984 p. 3952; 22 Feb 2008 p. 634; 28 Jun 2011 p. 2553.]

6A.Forms under Restraining Orders Act 1997

(1)For the purposes of the Restraining Orders Act 1997, the forms set out in the Magistrates Court (Civil Proceedings) Rules 2005 Schedule 1, as in force on 25 November 2017, are prescribed (with any necessary changes) in relation to the matters specified in those forms.

(2)Where a form is in parts, then only those parts of the form that are relevant, taking into account the part heading, need be used for a particular copy of the form, or for a particular purpose.

[Rule 6A inserted: Gazette 30 Jun 2017 p. 3576; amended: Gazette 1 Dec 2017 p. 5733.]

7.Court fees

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

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

8.Documents given to authorised users or Court by means of EDS

(1)If —

(a)these rules provide that the Court is required or authorised to give any writ, notice, order, summons or other document to a person; and

(b)the person is an authorised user of the EDS,

the Court may give the document to the person by means of the EDS.

(2)If —

(a)these rules provide that a person is required or authorised to give a document to the Court; and

(b)the person is an authorised user of the EDS,

the person may give the document to the Court only by filing the document electronically unless these rules provide otherwise in respect of the document.

[Rule 8 inserted: Gazette 27 Feb 2018 p. 552-3.]

Order 2 — Effect of non‑compliance

1.Non‑compliance with rules

(1)Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(2)Subject to subrule (3) the Court may, on the ground that there has been such a failure as is mentioned in subrule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

(3)The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.

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

2.Application to set aside for irregularity

(1)An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2)An application under this rule shall be made by summons or motion, as the case may require, and the grounds of objection must be stated in the summons or notice of motion.

Order 3 — Time

1.Term used: mont h

Without prejudice to the definition of the word month in section 5 of the Interpretation Act 1984, in its application to these rules, the word month where it occurs in any judgment, order, direction or other document forming part of any proceedings in the Supreme Court, means a calendar month unless the context otherwise requires.

[Rule 1 amended: Gazette 29 Apr 2005 p. 1791.]

2.Reckoning periods of time

(1)Where clear days are prescribed by these rules or fixed by any judgment, order or direction, the time shall be reckoned exclusively of the first and last day. Where any number of days not expressed to be clear days is prescribed or fixed the time shall be reckoned exclusively of the first and inclusively of the last day.

(2)Where less than 7 days is prescribed by these rules or limited by any judgment, order or direction for doing any act any day on which the Central Office is closed for business shall not be reckoned.

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

In the computation of the time prescribed by these rules or by an order or direction for filing, serving or amending any pleading or for filing and serving any notice of appeal the period or any part of the period which is between 24 December and 15 January next following shall not be reckoned unless the Court orders.

[Rule 3 amended: Gazette 9 Nov 1973 p. 4164.]

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

(1)Where the time prescribed by these rules or by any judgment, order or direction for doing any act expires on a day on which the Central Office is closed, and by reason thereof such act cannot be done on that day, the time shall be extended to the day on which the Central Office shall next be open.

(2)Subrule (1) does not apply to the filing of a document on a day on which the Central Office is closed if the document is required by these rules to be filed electronically.

[Rule 4 amended: Gazette 27 Feb 2018 p. 553.]

5.Extending and abridging time

(1)The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings.

(2)The Court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.

(3)The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

[Rule 5 amended: Gazette 29 Apr 2005 p. 1791; 28 Jun 2011 p. 2552.]

6.Extension of time where security ordered

Where any security is ordered to be given by a party the time prescribed by these rules or fixed by any order for the taking of any step by another party contingent on due compliance with the order for security, shall be deemed to be extended by the period between service of the order for security, and the giving of security.

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

Where a year or more has elapsed since the last proceeding in an action, the party who desires to proceed must give to every other party not less than one month’s notice of his intention to proceed. A summons on which no order was made is not a proceeding for the purpose of this rule.

[8.Deleted: Gazette 20 Jun 1986 p. 2040.]

Order 4A  Case management

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

Division 1 — Preliminary matters

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

1.Terms used

In this Order, unless the contrary intention appears —

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

case means any action, cause or matter in the General Division of the Court;

case management direction has the meaning given in rule 2;

case manager means a judge, master or registrar to whom the case is assigned;

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

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

enforcement order has the meaning given in rule 3.

[Rule 1 inserted: Gazette 28 Jul 2010 p. 3441; amended: Gazette 16 Aug 2017 p. 4392.]

2.Term used: case management direction

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

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

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

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

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

(d)direct specified pleadings to be filed;

(e)dispense with any interlocutory step;

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

(g)as to any interlocutory matter —

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

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

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

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

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

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

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

(ia)give directions for the purposes of Order 36A rule 1 as to expert evidence including directions as to any of the following —

(i)the provision to a party or the Court of a copy of a report, or part of a report, of an expert witness, before the trial;

(ii)the disclosure to a party or the Court, in writing, of the substance of all or any part of expert evidence, before the trial;

(iii)the number of expert witnesses who may be called at the trial;

(iv)the provision to the case manager for inspection under subrule (6) of any report or document containing expert evidence or the substance of the expert evidence;

(j)direct any or all of the parties to confer on a “without prejudice” basis for the purpose of identifying, resolving and narrowing the points of difference between them;

(k)direct that experts, whose reports have been provided or whose evidence the substance of which has been disclosed, under a direction under paragraph (ia), confer on a “without prejudice” basis for the purpose of identifying, resolving and narrowing the points of difference between them;

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

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

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

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

[(m)deleted]

(n)direct a party (A) intending to produce a plan, photograph, model or other object (the object) at trial to serve on the other party (B), at a time specified, a written notice —

(i)describing the object; and

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

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

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

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

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

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

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

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

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

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

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

(ii)in an order or sequence,

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

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

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

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

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

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

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

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

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

(3)A case management direction may —

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

(b)amend or cancel another case management direction.

[(4)deleted]

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

(6)For the purpose of deciding whether to make a direction for the purposes of Order 36A rule 1, the case manager may inspect any report or document containing expert evidence or the substance of the expert evidence, with or without disclosing the contents of that report or document to any other party.

[Rule 2 inserted: Gazette 28 Jul 2010 p. 3441-6; amended: Gazette 13 Nov 2015 p. 4644; 16 Aug 2017 p. 4393‑4.]

3.Term used: enforcement order

An enforcement order is —

(a)an order as to the payment of costs;

(b)an order as to the payment of costs of the parties on an indemnity basis, to be fixed in a manner specified in the order, and payable within 14 days after the date of the order;

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

(d)an order under Order 66 rule 5.

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

4.Inconsistencies with other rules

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

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

Division 2 — Provisions applicable to all cases

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

4A.Case management conferences

An interlocutory application or matter, a review under rule 5 and a request by a party (including a request by a party under rule 5A) must be dealt with by way of a case management conference unless —

(a)the case manager directs otherwise; or

(b)a decision is made in relation to the application, matter, review or request on the basis of documents filed without requiring the parties or their practitioners to attend a hearing.

[Rule 4A inserted: Gazette 16 Aug 2017 p. 4394.]

5.Case manager may review case at any time

(1)The case manager for a case may review the progress of the case —

(a)at any time in the case, on the case manager’s own initiative after notifying the parties; or

(b)when hearing a request by a party (including a request by a party under rule 5A); or

(c)when hearing any other application in the case.

(2)On the review, the case manager may do all or any of the following —

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

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

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

(3)For the purposes of subrule (1)(a), the case manager may at any time direct all or any of the parties to a case to attend before the case manager.

(4)If the case manager is a master, subrules (1) and (2) are subject to Order 60 rule 1(3) and (4).

(5)If the case manager is a registrar, subrules (1) and (2) are subject to Order 60A rule 2(2), (3) and (4).

[Rule 5 inserted: Gazette 16 Aug 2017 p. 4394‑5.]

5A.Requesting interlocutory orders and case management directions

(1)A party to a case may at any time request the case manager to do any of the following —

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

(b)make, cancel or amend a case management direction.

(2)The party must make the request by way of a letter to the case manager in accordance with rule 5B(1) and (2) unless —

(a)the request is made orally either during a case management conference or during a hearing; or

(b)a motion or summons is justified by the circumstances of the particular case or the nature of the request, in which case the request may be made by way of motion or summons; or

(c)the Supreme Court (Corporations) (WA) Rules 2004 apply to the case, in which case the request must be made under those rules; or

(d)a form, prescribed under a written law, is specific to the nature of the request, in which case the request must be made in that form.

(3)The case manager may by notice, direct the parties to attend a case management conference or a hearing to consider the request.

[Rule 5A inserted: Gazette 16 Aug 2017 p. 4395‑6.]

5B.Request under r. 5A by letter

(1)A party making a request under rule 5A by way of a letter must —

(a)file the letter and any attachments; and

(b)set out in the letter details of any order or direction sought or file with the letter as an attachment a minute in Form 78 of any order sought; and

(c)file with the letter as an attachment any other relevant document; and

(d)email a copy of the letter and the attachments to the associate to the case manager, or if the case manager is not known, to the associate to the Principal Registrar; and

(e)give a copy of the letter and the attachments to the other parties.

(2)A party must comply with subrule (1) not less than 2 clear days before the case manager is requested to act upon the request.

(3)A party who fails to comply with subrule (1) or (2) in relation to a letter, attachment or other document cannot, without the case manager’s leave, refer to or rely on the document —

(a)in any hearing; or

(b)in any other filed document.

(4)If a party is given leave to refer to or rely on a document referred to in subrule (3), the party must file the document as soon as practicable after the leave is given.

(5)Order 67A rule 2(4) and (5) do not apply to a party who fails to comply with subrule (1)(a).

(6)The case manager may direct a party who has made a request by way of a letter to make the request in some other manner.

[Rule 5B inserted: Gazette 16 Aug 2017 p. 4396‑7; amended: Gazette 27 Feb 2018 p. 553-4.]

5C.Request under r. 5A at case management conference or hearing

A party who seeks to refer to or rely on a document while making an oral request during a case management conference or a hearing referred to in rule 5A(2)(a) must —

(a)if the document contains a proposed order or a direction, file the document as soon as practicable after the conference or hearing; and

(b)if the document is required to be filed under these rules, comply with Order 67A Division 2 in relation to the document.

[Rule 5C inserted: Gazette 16 Aug 2017 p. 4397; amended: Gazette 27 Feb 2018 p. 554.]

6.Timetables

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

(2)The case manager making the direction must set the timetable.

(3)The case manager may do all or any of the following —

(a)amend the timetable, whether on the case manager’s own initiative or on a party’s request;

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

(c)at any time, by notice, direct the parties to attend a hearing and explain why the timetable has not been complied with;

(d)for the purposes of a hearing under paragraph (c), direct the parties to file an affidavit in response to the direction at any time that the case manager considers just;

(e)after a hearing under paragraph (c) —

(i)amend the timetable;

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

(iii)make any enforcement order the case manager considers just;

(f)if a party does not comply with the timetable, obey a direction under paragraph (c) or file an affidavit as directed, make any case management direction or enforcement order the case manager considers just.

(4)If the case manager is a master, subrule (3)(e) and (f) are subject to Order 60 rule 1(3) and (4).

(5)If the case manager is a registrar, subrule (3)(e) and (f) are subject to Order 60A rule 2(2), (3) and (4).

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

(a)give the Court the explanation within the time specified in the direction; and

(b)serve the explanation on each other party.

[Rule 6 inserted: Gazette 16 Aug 2017 p. 4397‑9.]

7.Attendance at proceedings under this Order

(1)A party who is represented by a practitioner need not attend a proceeding under this Order unless subpoenaed or directed to do so by the case manager.

(2)Unless the case manager directs otherwise, subrule (1) does not apply to —

(a)a conference conducted by a mediator under rule 8; or

(b)a strategic conference held under rule 14A; or

(c)the first case management conference for the case referred to in rule 18(1).

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

[Rule 7 inserted: Gazette 16 Aug 2017 p. 4399.]

8.Conferences of parties with mediator

(1)The case manager for a case may, by notice, direct that a conference conducted by a mediator be held for the case.

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

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

(3A)The following persons must attend the conference unless the mediator or the case manager directs otherwise —

(a)each party to the case;

(b)if a party is represented by a practitioner, the practitioner;

(c)if a party is not an individual, a representative of the party with authority to conduct settlement negotiations and to settle the case;

(d)if settlement negotiations are to be conducted on behalf of a party by its insurer, a representative of the insurer with authority to conduct settlement negotiations and to settle the case.

(4)In the absence of any other direction made by the case manager —

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

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

(c)each party’s costs of and incidental to the conference shall be the party’s costs in the cause, unless the parties agree; but a party may apply for those costs if they have been unnecessarily incurred due to the conduct of the other party; and

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

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

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

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

(5)The mediator —

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

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

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

[Rule 8 inserted: Gazette 28 Jul 2010 p. 3449-50; amended: Gazette 16 Aug 2017 p. 4399‑400.]

9.Referees

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

(2)The case manager may do any or all of the following —

(a)appoint the referee;

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

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

(d)give directions for the provision —

(i)of services of officers of the Court;

(ii)of courtrooms and other facilities,

for the purpose of the referee;

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

(3)The case manager may —

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

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

(4)Evidence before the referee —

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

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

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

[Rule 9 inserted: Gazette 28 Jul 2010 p. 3450-1; amended: Gazette 16 Aug 2017 p. 4400‑1.]

Division 3 — Cases on the CMC List

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

10.Application of this Division

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

[Rule 10 inserted: Gazette 28 Jul 2010 p. 3451; amended: Gazette 16 Aug 2017 p. 4401.]

11.Cases on CMC List

These cases are on the CMC List —

(a)any case in which defamation is alleged;

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

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

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

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

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

(ca)any case involving proceedings to which the Supreme Court (Arbitration) Rules 2016 apply;

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

[Rule 11 inserted: Gazette 28 Jul 2010 p. 3451-2; amended: Gazette 15 Mar 2013 p. 1206; 23 Apr 2013 p. 1591 (disallowed: Gazette 1 Nov 2013 p. 4910); 17 Dec 2013 p. 6231; 16 Aug 2017 p. 4401.]

12.Headings to documents

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

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

13.CMC List case manager may direct case to be on or taken off CMC List

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

(2)A CMC List case manager, on the case manager’s own initiative or on a request made under rule 14, may direct a case to be admitted to the CMC List.

(3)A CMC List case manager, on the case manager’s own initiative or on a request by a party, may direct a CMC List case to be taken off the CMC List.

[Rule 13 inserted: Gazette 16 Aug 2017 p. 4401‑2.]

14.Requesting case be put on CMC List

(1)A party to a case may request a direction that the case be admitted to the CMC List.

(2)The request must not be made until after the first of the following events occurs —

(a)an appearance has been entered by each party who is required to do so;

(b)the time limited for appearing expires.

(3)The request is a request under rule 5A and must —

(a)be made by letter in accordance with rule 5B(1) and (2); and

(b)contain the email address (if any) —

(i)of each party to the case, other than a party who is required to enter an appearance and has not; and

(ii)that was provided by a party in accordance with Order 71A rule 3.

(4)A request made under this rule must be decided by a CMC List case manager.

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

[Rule 14 inserted: Gazette 16 Aug 2017 p. 4402.]

14A.Strategic conferences

(1)In this rule —

strategic conference means a conference at which it is to be demonstrated how a party to a case proposes to attain the objects referred to in Order 1 rule 4B(1).

(2)The CMC List case manager may, by notice, direct that a strategic conference be held for the case.

(3)The following persons must attend the conference unless the case manager directs otherwise —

(a)each party to the case;

(b)if a party is represented by a practitioner, the practitioner.

[Rule 14A inserted: Gazette 16 Aug 2017 p. 4403.]

15.Interlocutory hearings

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

(2)If the CMC List case manager is a master, subrule (1) is subject to Order 60 rule 1(3) and (4).

[Rule 15 inserted: Gazette 28 Jul 2010 p. 3453; amended: Gazette 13 Nov 2015 p. 4645; 16 Aug 2017 p. 4403.]

Division 4 — Cases not on the CMC List

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

16.Application of this Division

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

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

[17.Deleted: Gazette 16 Aug 2017 p. 4404.]

18.Case management conferences for cases not on CMC List

(1)The case manager for a case may, by notice, direct that the first case management conference be held for the case.

(2)The following persons must attend the first case management conference for a case unless the case manager directs otherwise —

(a)each party to the case;

(b)if a party is represented by a practitioner, the practitioner.

(3)At any case management conference the case manager may inquire into the following —

(a)whether pleadings or any specified pleadings are necessary;

(b)the state of the pleadings and whether the times prescribed by these rules for pleadings are being complied with and if not, the reasons for the non‑compliance;

(c)whether any party intends to commence third party or similar proceedings under Order 19;

(d)whether any party intends to require discovery and inspection under Order 26;

(e)whether any party intends to interrogate under Order 27;

(f)whether any party intends to adduce expert evidence at the trial;

(g)whether a conference of the parties with a mediator is needed and if so, when;

(h)the likely length of the trial;

(i)any other matter relevant to ensuring the case is managed in accordance with Order 1 rule 4B.

(4)A case is not to be entered for trial unless the case manager has conducted a full case evaluation at one or more case management conferences for the case.

(5)The case manager may, at the request of a party, or on the case manager’s own initiative, make a direction that subrule (4) does not apply to the case.

(6)The case manager may conduct a full case evaluation referred to in subrule (4) by inquiring into the following —

(a)the state of the pleadings and if they are not closed, the reasons for that;

(b)whether a conference of the parties with a mediator is needed and if so, when;

(c)the content of any report or document containing expert evidence or the substance of expert evidence and whether a conference between experts is needed;

(d)whether the case, at the time of the listing conference, will be ready for trial and if not, the reasons for not being ready;

(e)whether the estimated length of the trial is still accurate;

(f)the number of witnesses to be called at the trial, whether there are any known difficulties as to the availability of any witness and the estimated time it will take for each witness to give evidence;

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

(7)The first and any other case management conference may be held even if, at the time of the case management conference, not all parties to the case have been served with the originating process or have entered appearances.

[Rule 18 inserted: Gazette 16 Aug 2017 p. 4404‑6.]

19.Powers of case manager at case management conferences for cases not on CMC List

(1)At any case management conference the case manager may at the request of a party or on the case manager’s own initiative do one or more of the following —

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

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

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

(2)If the case manager is a master, subrule (1) is subject to Order 60 rule 1(3) and (4).

(3)If the case manager is a registrar, subrule (1) is subject to Order 60A rule 2(2), (3) and (4).

(4)The case manager may at the request of a party or on the case manager’s own initiative, arrange for one or more further case management conferences to be held but any further case management conference must not be held on or after the date of the listing conference.

(5)The case manager may at the request of a party or on the case manager’s own initiative, adjourn any case management conference from time to time but not to a date on or after the date of the listing conference.

[Rule 19 inserted: Gazette 16 Aug 2017 p. 4406‑7.]

20.Listing conference

(1)A listing conference shall be held before a judge in chambers.

(2)The listing conference shall be held as soon as practicable after the case is entered for trial or, in the case of an originating summons, after an application is made for an appointment for the attendance of the parties for the hearing of the summons.

(3)At the listing conference the judge may review the documents on the Court file and inquire into these matters —

(a)whether the case can be settled;

(b)which documents will be admitted at trial by consent;

(c)the number of witnesses to be called at the trial, whether there are any known difficulties as to the availability of any witness, and the estimated time it will take for them to give their evidence in chief;

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

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

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

(b)amend or cancel any case management direction made previously;

(c)if the judge considers it is convenient to do so to facilitate the preparation for, or the conduct of, the trial, or is otherwise desirable —

(i)after giving notice to the parties, determine any question of law; or

(ii)determine any question of procedure.

(5)The judge may adjourn the listing conference from time to time.

(6)At the listing conference the judge may fix the date of the trial of the case and the length of the trial.

[Rule 20 inserted: Gazette 28 Jul 2010 p. 3458-9.]

Division 5 — Inactive Cases List

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

21.Term used: Inactive Cases List

In this Division —

Inactive Cases List means a list of inactive cases kept by the Principal Registrar for the purposes of this Division.

[Rule 21 inserted: Gazette 28 Jul 2010 p. 3459; amended: Gazette 16 Aug 2017 p. 4407.]

22.Case manager may direct party to show cause

(1)The case manager for a case may at any time, by notice, direct the parties to attend a hearing before a case manager to show cause why the case should not be put on the Inactive Cases List.

(2)The date of the hearing must be at least 7 days after the date on which the direction is made.

(3)The direction does not prevent any party to the case from taking any procedural step in the case.

(4)At the hearing the case manager may order that the case be put on the Inactive Cases List if not satisfied that the case is being conducted in a timely way, having regard to the requirements of these rules and the circumstances of the case.

(5)An order may be made under subrule (4) in the absence of any party.

[Rule 22 inserted: Gazette 16 Aug 2017 p. 4407.]

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

(1)A judge, master or registrar making an interlocutory order or case management direction in a case may include an order that unless the interlocutory order or direction is complied with by a date stated in the order, the case is to be put on the Inactive Cases List.

(2)Unless countermanded by a judge, master or registrar, before it has effect, the order has effect according to its terms.

[Rule 23 inserted: Gazette 28 Jul 2010 p. 3460.]

24.Cases inactive for 12 months deemed inactive

If no procedural step is taken in a case for 12 months by any party to the case, the case is taken to be inactive unless the case manager for the case orders otherwise.

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

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

(1)When an order is made under rule 22(4), or an order made under rule 23(1) takes effect, or a case is taken to be inactive under rule 24, the Principal Registrar must —

(a)put the case on the Inactive Cases List; and

(b)give all parties to the case written notice of —

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

(ii)the effect of rule 28.

(2)If under subrule (1)(b) written notice is given to a party to the case by giving the notice to a practitioner for the party, the practitioner must, as soon as practicable after receiving the notice, notify the party of —

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

(b)the effect of rule 28.

[Rule 25 inserted: Gazette 16 Aug 2017 p. 4408.]

26.Consequences of case being on Inactive Cases List

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

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

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

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

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

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

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

[Rule 26 inserted: Gazette 12 Jun 2012 p. 2445-6; amended: Gazette 16 Aug 2017 p. 4408‑9.]

27.Removing cases from Inactive Cases List

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

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

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

[Rule 27 inserted: Gazette 28 Jul 2010 p. 3461; amended: Gazette 16 Aug 2017 p. 4409.]

28.Certain cases taken to have been dismissed

(1)If a case is on the Inactive Cases List for 6 continuous months after the date on which notice is given under rule 25(1)(b) to the parties to the case, the case is taken to have been dismissed for want of prosecution.

(1A)If notice is given under rule 25(1)(b) to different parties to the case on different dates, then, for the purposes of subrule (1), notice is taken to have been given on the last of those dates.

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

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

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

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

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

[Rule 28 inserted: Gazette 28 Jul 2010 p. 3461; amended: Gazette 12 Jun 2012 p. 2446; 16 Aug 2017 p. 4409.]

Order 4  Mode of commencing proceedings: applications in pending proceedings

1.Commencing civil proceedings

Subject to the provisions of any Act and of these rules — 

(a)every action in the Court must be commenced by writ;

(b)civil proceedings between parties to be heard in chambers must be commenced by originating summons;

(c)all other civil proceedings must be commenced by originating motion.

2.Applications in pending proceedings

Applications in pending proceedings must be made — 

(a)if in court, by motion;

(b)if in chambers, in accordance with Order 59.

[Rule 2 amended: Gazette 28 Oct 1996 p. 5674.]

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

(1)Subject to subrule (2) and to Order 70 rule 2, any person (whether or not he sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the Supreme Court by a solicitor or in person.

(2)Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor.

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

Order 4AA  Mortgage actions

[Heading inserted: Gazette 16 Nov 2016 p. 5186.]

1.Terms used

(1)In this Order —

mortgage includes a legal and an equitable mortgage and a legal and an equitable charge, whether or not the mortgage or charge is registered under the Transfer of Land Act 1893;

mortgage action means proceedings to which this Order applies.

(2)In this Order, mortgagee and mortgagor have meanings that correspond to the meaning of mortgage.

[Rule 1 inserted: Gazette 16 Nov 2016 p. 5186.]

2.Application

(1)This Order applies to any proceedings by a mortgagee or mortgagor, or by any person who has the right to foreclose or redeem any mortgage, if in the proceedings there is a claim for relief of any of the following kinds —

(a)delivery of possession (whether before or after foreclosure or without foreclosure) to the mortgagee by —

(i)the mortgagor; or

(ii)any other person who is, or is alleged to be, in possession of the property;

(b)foreclosure;

(c)sale of the mortgaged property;

(d)redemption;

(e)reconveyance of the property or its release from the security;

(f)delivery of possession by the mortgagee.

(2)Nothing in this Order extends or affects the powers of sale or foreclosure conferred by the Transfer of Land Act 1893 Part IV Division 3.

[Rule 2 inserted: Gazette 16 Nov 2016 p. 5186‑7.]

3.Commencing mortgage actions

(1)A mortgage action must be begun by writ unless the mortgage action is a defendant’s application for an order for delivery of possession referred to in subrule (3).

(2)If the writ is indorsed with a claim for relief of a kind referred to in rule 2(1)(a), (b) or (c), a notice in Form 4 must be attached to the front of the writ when the writ is served.

(3)A defendant in a mortgage action for redemption may apply by motion or summons for an order for delivery to the defendant of possession of the mortgaged property if —

(a)the plaintiff has failed to redeem; and

(b)foreclosure has taken place.

(4)On an application made under subrule (3) the Court may make whatever order it thinks fit.

[Rule 3 inserted: Gazette 16 Nov 2016 p. 5187.]

4.Transitional provision for former Order 62A

(1)In this rule —

commencement day means the day on which the Supreme Court Amendment Rules 2016 rule 13 comes into operation;

former Order 62A means Order 62A as in effect immediately before it was deleted by the Supreme Court Amendment Rules 2016 rule 13;

transitional proceedings means proceedings to which former Order 62A applied immediately before commencement day.

(2)Former Order 62A applies to and in relation to the following as if former Order 62A had not been deleted —

(a)transitional proceedings begun by originating summons before commencement day;

(b)transitional proceedings begun by writ if the writ was served before commencement day.

[Rule 4 inserted: Gazette 16 Nov 2016 p. 5187‑8.]

Order 5 — Writs of summons

1.Form of writ

The writ for the commencement of an action, shall, except in the cases in which any different form is provided in these rules, be in Form No. 1 or 2, whichever is appropriate.

2.Writ for service outside WA, form of

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

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

3.Place of trial to be shown

In all cases in which it is proposed that the trial shall be elsewhere than in Perth , the writ must show the proposed place of trial.

4.Place of issue

Every writ shall be issued out of the Central Office.

5.Preparation of writ

Writs shall be prepared by the plaintiff or his solicitor.

6.Sealing of writ

Issue of a writ takes place upon its being sealed by the proper officer.

7.Copy to be left with officer

(1)The plaintiff or his solicitor shall, on presenting a writ for sealing, leave with the officer a copy of the writ, and all the indorsements thereon, and such copy shall be signed by or for the solicitor leaving the same, or by the plaintiff himself if he sues in person.

(2)Subrule (1) does not apply if the writ is filed electronically.

[Rule 7 amended: Gazette 27 Feb 2018 p. 554.]

8.Writ to be recorded when issued

The proper officer must record, in the manner directed by the Chief Justice from time to time, a writ when it is issued.

[Rule 8 inserted: Gazette 27 Feb 2018 p. 554.]

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

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

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

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

Every writ of summons and also (unless by an Act or by these rules it is otherwise provided) every other writ shall bear date on the day on which it is issued and shall be tested in the name of the Chief Justice, whether he is within or outside the State, or if there is no Chief Justice, in the name of the Senior Puisne Judge.

11.Time for appearance to be stated in writ

(1)The time to be stated in a writ for the appearance of any defendant shall be not less than the time next hereinafter specified according to the place of service, that is to say — 

Where the place for service is

Time

(1)In the State of Western Australia  — 

 

Less than 300 km from Perth ..........

10 days.

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


16 days.

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

21 days.

(2)Outside the State but within Australia

See subrule (2).

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

See subrule (3).

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

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

(4)In the computation of the times prescribed by this rule, the day of service shall be excluded.

[Rule 11 amended: Gazette 7 Dec 1973 p. 4488; 14 Dec 1979 p. 3869; 3 Jul 2009 p. 2683; 12 Jun 2012 p. 2453.]

Order 6 — Indorsement of claim: other indorsements

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

(1)Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.

(2)In case of non‑compliance with subrule (1) the defendant may apply before appearance to set aside or amend the writ or for particulars.

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

2.Action for defamation by publication

In actions for defamation by publication the indorsement must state sufficient particulars to enable the publications in respect of which the action is brought to be identified.

[Rule 2 amended: Gazette 16 Aug 2017 p. 4409.]

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

In any action other than an action which includes — 

(a)a claim by the plaintiff based on an allegation of fraud; or

(b)a claim by the plaintiff in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage,

a statement of claim may, at the option of the plaintiff, be indorsed on the writ.

[Rule 3 amended: Gazette 16 Aug 2017 p. 4410.]

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

Where the plaintiff’s claim is for a debt or liquidated demand only, the writ before it is issued must be indorsed with a statement of the amount claimed in respect of the debt or demand, and for costs up to and including service, respectively, and such indorsement shall further state that upon payment thereof within the time allowed for appearance, further proceedings will be stayed. The defendant may notwithstanding such payment have the costs taxed and if more than one‑sixth is disallowed, the plaintiff’s solicitor shall pay the costs of taxation, unless otherwise ordered by the taxing officer.

5.Representative character

If the plaintiff sues, or the defendant, or any of the defendants, is sued in a representative capacity, the indorsements shall show, in accordance with such of the indorsements in Form No. 5 as is applicable to the case or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued.

6.Claim for account

In all cases in which the plaintiff, in the first instance, desires to have an account taken, the writ shall be indorsed with a claim that such account be taken.

7.Writ etc. to state contact details

A writ or other document commencing proceedings must, in accordance with Order 71A, state —

(a)the geographical address; and

(b)the service details,

of each person commencing the proceedings.

[Rule 7 inserted: Gazette 21 Feb 2007 p. 534.]

[8‑11.Deleted: Gazette 21 Feb 2007 p. 534.]

Order 7 — Duration and renewal of writ: concurrent writs

1.Duration and renewal of writ

(1)For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 12 months beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.

(2)Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application is made to the Court before that day or such later day (if any) as the Court may allow.

(3)Before a writ, the validity of which has been extended under this rule, is served it must be marked with an official stamp showing the period for which the validity of the writ has been so extended.

(4)Where the validity of a writ is extended by order made under this rule, the order shall operate in relation to any other writ (whether original or concurrent) issued in the same action which has not been served so as to extend the validity of that other writ until the expiration of the period specified in the order.

2.Proof of extension of validity of writ

The production of a writ purporting to be marked with the official stamp showing the period for which the validity of the writ has been extended shall be sufficient evidence of the validity of the writ having been so extended, and of the commencement of the action as of the date of the original writ, for all purposes.

3.Concurrent writs

(1)One or more concurrent writs may, at the request of the plaintiff, be issued at the time when the original writ is issued or at any time thereafter before the original writ ceases to be valid.

(2)Each concurrent writ shall bear teste of the same day as the original writ, and shall be sealed by the proper officer with a seal bearing the word “Concurrent” and the date of issue of the concurrent writ.

(3)Without affecting the generality of subrule (1) —

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

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

(4)A concurrent writ is a true copy of the original writ with such differences only (if any) as are necessary having regard to the purpose for which the writ is issued.

(5)Subrule (6) applies if —

(a)an original writ is sealed and issued to the plaintiff by means of the EDS; or

(b)the plaintiff has lawful access to an original writ in the EDS.

(6)If this subrule applies —

(a)the plaintiff may print from the EDS 1 or more copies of the original writ; and

(b)a printed copy may be treated as a concurrent writ despite subrule (2) not having been complied with.

[Rule 3 amended: Gazette 28 Jun 2011 p. 2552; 12 Jun 2012 p. 2447; 27 Feb 2018 p. 555.]

4.Unserved writs may be struck out

(1)If at any time after 6 months after a writ is issued it appears to the Court that — 

(a)no affidavit of service of the writ has been filed by the plaintiff; and

(b)no appearance has been entered to the writ,

the Court may, by notice, direct that a hearing be held, at least 7 days after the direction is made, where the plaintiff must show cause why the writ should not be struck out.

(2)If at the hearing the Court is not satisfied that the writ has not been served for good reason the Court may — 

(a)strike out the writ; or

(b)make directions as to the service of or the time for serving the writ.

(3)On being struck out, a writ and any writ that is concurrent with it cease to be valid.

[Rule 4 inserted: Gazette 28 Oct 1996 p. 5674‑5; amended: Gazette 16 Aug 2017 p. 4410.]

Order 8 — Disclosure by solicitors: change of solicitors

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

(1)Every solicitor whose name is indorsed on any writ of summons shall, on demand in writing made by or on behalf of any defendant who has been served therewith or has appeared thereto, declare forthwith in writing whether such writ has been issued by him or with his authority.

(2)If the solicitor answers in the affirmative, then he shall also, in case the Court so orders and directs, declare in writing within a time allowed by the Court, the profession, occupation, or quality, and place of abode of the plaintiff, on pain of being guilty of a contempt of court.

(3)If the solicitor declares that the writ was not issued by him or with his authority, all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereon without leave of the Court.

2.Change of solicitor

(1)A party suing or defending by a solicitor may change his solicitor without an order for that purpose, upon notice of such change being filed, but until such notice is filed and a copy thereof served in accordance with this rule, the former solicitor shall subject to the provisions of this Order, be considered the solicitor of the party until the final conclusion of the cause or matter including any appeal therein.

(2)The party giving the notice must serve on every other party to the cause or matter (not being a party in default as to entry of appearance) and on the former solicitor a copy of the notice indorsed with a memorandum stating that the notice has been duly filed.

[Rule 2 amended: Gazette 27 Feb 2018 p. 555.]

[3.Deleted: Gazette 27 Feb 2018 p. 555.]

4.Appointment of solicitor by self-represented person

Where a party, after having sued or defended in person, appoints a solicitor to act in the cause or matter on his behalf, the change may be made without an order for that purpose, by filing a notice of appointment of a solicitor and rule 2(2) shall with the necessary modifications, apply in relation to a notice of appointment of a solicitor as it applies in relation to a notice of change of solicitor.

[Rule 4 amended: Gazette 27 Feb 2018 p. 555.]

5.Intention to act in person, notice of

Where a party, after having sued or defended by a solicitor, intends and is entitled to act in person, the change may be made without an order for that purpose and rule 2 shall with the necessary modifications apply in relation to a notice of intention to act in person as it applies in relation to a notice of change of solicitor.

[Rule 5 amended: Gazette 21 Feb 2007 p. 534.]

5A.Form and content of notices

A notice filed under rule 2, 3, 4 or 5 —

(a)must be in Form 5AA; and

(b)must state, in accordance with Order 71A —

(i)the party’s geographical address; and

(ii)the party’s service details.

[Rule 5A inserted: Gazette 13 Nov 2015 p. 4645.]

6.Removal of solicitor from record

(1)Where a solicitor who has acted for a party in a cause or matter has died or become bankrupt, or cannot be found or has ceased to have the right of practising in the Court, or for any other reason has ceased to practise, and the party has not given notice of change of solicitor or notice of intention to act in person, any other party to the cause or matter may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor acting for the first‑mentioned party in the cause or matter, and the Court may make an order accordingly.

(2)An application for an order under this rule must be made by summons which, unless the Court otherwise directs, must be served on the party to whose solicitor the application relates, and must be supported by an affidavit stating the grounds of the application.

(3)Where an order is made under this rule the party on whose application it was made must — 

(a)forthwith serve on every other party to the cause or matter (not being a party in default as to entry of appearance) a copy of the order; and

(b)file a certificate signed by him or his solicitor that the order has been duly served as aforesaid.

[Rule 6 amended: Gazette 27 Feb 2018 p. 555.]

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

(1)Where a solicitor who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with the provisions of this Order, the solicitor may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the cause or matter and the Court may make an order accordingly; but unless and until the solicitor — 

(a)serves on every party to the cause or matter (not being a party in default as to entry of appearance) a copy of the order, and

(b)files a certificate signed by him that the order has been duly served as aforesaid,

he shall, subject to rules 1 to 6, be considered the solicitor of the party until the final conclusion of the cause or matter including any appeal therein.

(2)An application for an order under this rule must be made by summons, which unless the Court otherwise directs, must be served on the party for whom the solicitor acted, and must be supported by an affidavit stating the grounds of the application.

(3)The Court may dispense with the necessity of serving a party to a cause or matter with an order of the kind mentioned in subrule (1).

[Rule 7 amended: Gazette 15 Jun 1973 p. 2247; 23 May 1975 p. 1404; 28 Jun 2011 p. 2552 and 2553; 27 Feb 2018 p. 555.]

8.Effect of order made under this Order

Any order made under this Order shall not affect the rights of the solicitor and the party as between themselves.

9.Service details of party whose solicitor is removed

If —

(a)an order is made under rule 6 in respect of the solicitor of a party; or

(b)an order is made under rule 7 in respect of the solicitor of a party, and the solicitor has complied with rule 7(1),

the party’s service details are to be taken to be the party’s geographical address stated on the most recently filed document until —

(c)a notice is filed under rule 4 or 5; or

(d)the Court orders otherwise on an ex parte application by the party,

in which case the party’s service details are those stated in the notice or ordered by the Court.

[Rule 9 inserted: Gazette 21 Feb 2007 p. 534‑5.]

[10.Deleted: Gazette 21 Feb 2007 p. 534.]

11.Solicitor not to act for adverse parties

No solicitor shall act in any cause or matter for plaintiff and defendant, or for any 2 or more defendants having adverse interests in a cause or matter.

12.Practitioner or clerk not to be security

No practitioner or articled or other clerk to a practitioner shall be security for any party in any court without the leave of a judge.

Order 9A  Interested non‑parties

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

1.Term used: interested non‑party

In this Order —

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

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

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

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

2.Parties to advise identity of interested non‑parties

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

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

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

3.Duties of interested non‑party

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

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

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

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

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

Order 9 — Service of originating process: general provisions

1.Service of writ, general provisions

(1)Subject to the provisions of any Act and these rules, a writ must be served personally on each defendant by the plaintiff or his agent.

(2)Where a defendant’s solicitor indorses on the writ a statement that he accepts service of the writ on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant and to have been so served on the date on which the indorsement was made.

(3)Where a writ is not duly served on a defendant but he enters an unconditional appearance in the action begun by the writ, the writ shall be deemed to be duly served on him and to have been so served on the date on which he entered the appearance.

(4)Where a writ is served on a defendant otherwise than by virtue of subrule (2) or (3), then subject to Order 10 rule 9(9), the plaintiff in the action begun by the writ is not entitled to enter judgment against the defendant in default of appearance or in default of defence unless, within 3 days after service, the person serving it indorses on the sealed copy of the writ the following particulars —

(a)the day of the week and date on which it was served;

(b)where it was served;

(c)the person on whom it was served;

(d)if the person on whom it was served is not the defendant — the capacity in which the person was served;

(e)if under Order 4AA rule 3(2) a Form 4 must be attached to the writ when it is served — a statement that the Form 4 was attached to the front of the writ when it was served.

[Rule 1 amended: Gazette 28 Jun 2011 p. 2552; 16 Nov 2016 p. 5188‑9.]

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

(1)Where the Court is satisfied on an ex parte application that — 

(a)a contract has been entered into within the jurisdiction with or through an agent who is either an individual residing or carrying on business within the jurisdiction or a body corporate having a registered office or a place of business within the jurisdiction; and

(b)the principal for whom the agent was acting was at the time the contract was entered into and is at the time of the application neither such an individual nor such a body corporate; and

(c)at the time of the application either the agent’s authority has not been determined or he is still in business relations with his principal,

the Court may authorise service of a writ beginning an action relating to the contract to be effected on the agent instead of the principal.

(2)An order under this rule authorising service of a writ on a defendant’s agent must limit a time within which the defendant must enter an appearance.

(3)Where an order is made under this rule authorising service of a writ on a defendant’s agent, a copy of the order and of the writ must be sent by post to the defendant at his address out of the jurisdiction, if such address is known to the plaintiff.

3.Serving writ in accordance with contract, effect of

(1)Where — 

(a)a contract contains a term to the effect that the Supreme Court shall have jurisdiction to hear and determine any action in respect of a contract or, apart from any such term, the Supreme Court has jurisdiction to hear and determine any such action; and

(b)the contract provides that, in the event of any action in respect of the contract being begun, the process by which it is begun may be served on the defendant, or on such other person on his behalf as may be specified in the contract, in such manner or at such place (whether within or out of the jurisdiction), as may be so specified,

then if an action in respect of the contract is begun in the Supreme Court and the writ by which it is begun is served in accordance with the contract the writ shall, subject to subrule (2), be deemed to have been duly served on the defendant.

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

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

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

In an action claiming possession of land, the Court may — 

(a)if satisfied on an ex parte application that no person appears to be in possession of the land and that service cannot be otherwise effected on any defendant, authorise service on that defendant to be effected by affixing a copy of the writ to the door of the dwelling house or to some conspicuous part of the land;

(b)if satisfied on an ex parte application that no person appears to be in possession of the land and that service could not otherwise have been effected on any defendant, order that service already effected by affixing a copy of the writ to the door of the dwelling house or to some conspicuous part of the land shall be treated as good service on that defendant.

5.Service of other originating process

Rules 1 to 4 except rule 1(4) shall apply in relation to an originating summons to which an appearance is required to be entered as they apply in relation to a writ, and rule 1(1) and (2) shall, with any necessary modifications, apply in relation to an originating summons to which no appearance need be entered, a notice of an originating motion and a petition as they apply in relation to a writ.

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

Order 10 — Service out of the jurisdiction

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

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

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

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

(b)the person was served —

(i)under rules 9 to 11; or

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

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

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

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

1.When service out of jurisdiction is permissible

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

(a)the subject matter of the action, so far as it concerns the party to be served, is — 

(i)land (with or without rents or profits) or other property situate within the State, or the perpetuation of testimony relating to land within the State; or

(ii)any shares or stock of a corporation or joint stock company having its principal place of business within the State;

(b)any Act, deed, will, contract, obligation or liability affecting land or hereditaments situate within the State is sought to be construed, rectified, set aside or enforced in the action;

(c)in the action relief is sought against a person domiciled or ordinarily resident within the jurisdiction;

(d)the action is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Western Australia or if the action is for any relief or remedy which might be obtained in any such action as aforesaid;

(e)the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being in either case a contract — 

(i)made within the jurisdiction; or

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

(iii)which by its terms or implications is governed by the law of Western Australia ;

(f)the action is brought in respect of a breach committed within the jurisdiction of a contract wherever made and irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so much of the contract as ought to have been performed within the jurisdiction;

(g)in the action an injunction is sought ordering the defendant to do or refrain from doing anything within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed whether damages are or are not also sought in respect thereof;

(h)any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction;

(i)the action is for the recovery of taxes or duty (with or without interest or fines for default in payment thereof) which have been imposed or become due on or in respect of property situate within the jurisdiction;

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

(k)the action is founded on a tort committed within the jurisdiction;

(l)the action is properly brought under the Civil Aviation (Carriers’ Liability) Act 1959 of the Commonwealth.

(2)In subrule (1)(j) the expression personal property situate within the jurisdiction means personal property, which on the death of an owner thereof intestate, would form subject matter for the grant of letters of administration to his estate in Western Australia; the expression mortgage means a mortgage charge or lien of any description; the expression mortgagee means a party for the time being entitled to or interested in a mortgage; and the expression mortgagor means a party for the time being entitled to or interested in property subject to a mortgage.

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

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

Where it appears to the Court that a contract contains a term to the effect that the Supreme Court shall have jurisdiction to hear and determine any action in respect of the contract, the Court may grant leave to serve a person outside Australia with a writ, or notice of a writ, that begins such an action.

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

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

4.Application for leave under r. 1 or 2

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

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

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

(2)No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.

[Rule 4 amended: Gazette 15 Jun 1973 p. 2247; 12 Jun 2012 p. 2448.]

5.Time for appearance

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

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

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

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

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

7.Other documents, service of outside Australia

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

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

8.Saving of existing practice

Nothing contained in this Order shall prejudice or affect any practice or power of the Court under which, when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the Court may, without purporting to exercise jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings, with a view to such person having an opportunity of claiming, opposing, or otherwise intervening.

9.Service abroad through foreign or diplomatic officials

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

(a)the United Kingdom ;

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

(c)any British possession.

(2)If leave is granted to serve a writ on a person in a foreign country and a convention about such service applies to the country and to Australia or this State, the notice may be served —

(a)through the judicial authorities of that country; or

(b)through a British or Australian diplomatic or consular agent in that country (subject to any provision of the convention as to the nationality of persons who may be so served).

(3)If leave is granted to serve a writ on a person in a country and there is no such convention, the notice may be served —

(a)through the government of that country, if the government is willing to effect service; or

(b)through a British or Australian diplomatic or consular agent in that country except where service through such an authority is contrary to the law of that country.

(4)A person who wishes to serve a writ by a method described in subrule (2) or (3) must file a request for service of the writ by that method, together with a copy of the writ and, unless the request and the copy of the writ are filed electronically, an additional copy of the writ for each person to be served.

(5)Every copy of a writ filed under subrule (4) shall be accompanied by a translation of the writ in the official language of the country in which service is to be effected, or if there is more than one official language of that country, in any one of those languages which is appropriate to the place in that country where service is to be effected: Provided that this subrule does not apply where the copy of the writ is to be served in a country the official language of which is, or the official languages of which include English, or is to be served by a British or Australian diplomatic or consular agent on a British subject or an Australian citizen, unless the Convention expressly requires the copy to be accompanied by a translation.

(6)Every translation required by subrule (5) shall be certified by the person making it to be a correct translation, and the certificate shall state his full name and address and his qualifications for making the translation.

(7)The document to be served shall be sealed with the seal of the Supreme Court and shall be forwarded by the Principal Registrar to the Attorney General for Western Australia for transmission through the diplomatic channel to the foreign country.

(8)An official certificate transmitted to the Court through the diplomatic channel by the British or Australian diplomatic or consular agent, or by the foreign government or judicial authorities establishing the fact and the date of the service of the document shall be deemed to be sufficient proof of such service, and shall be filed of record and be equivalent to an affidavit of service within the requirements of these rules in that behalf. Any document purporting to be such a certificate shall, until the contrary is proved, be deemed to be such a certificate.

(9)Where an official certificate is produced pursuant to subrule (8) in relation to the service of a writ under this rule, no indorsement of service under Order 9 rule 1(4) shall be required.

[Rule 9 amended: Gazette 14 Dec 1979 p. 3869; 3 Jul 2009 p. 2685; 28 Jun 2011 p. 2552; 12 Jun 2012 p. 2449-50; 27 Feb 2018 p. 556.]

10.Service abroad, general and saving provisions

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

(2)Nothing in this rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.

(3)A writ to be served outside Australia  —

(a)need not be served personally on the person required to be served, if it is served on him in accordance with the law of the country in which service is effected; and

(b)need not be served by the plaintiff or his agent if it is served by a method provided for by rule 9.

(4)Rule 9 shall not apply to or render invalid or insufficient any mode of service in any foreign country with which a Convention has been or shall be made which is otherwise valid or sufficient according to the procedure of the Supreme Court and which is not expressly excluded by the Convention.

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

11.Undertaking to pay expenses of service

Every request filed under rule 9(4) must contain an undertaking by the person making the request to be responsible personally for all expenses incurred in respect of the service requested, and on receiving due notification of the amount of those expenses to pay that amount into the Central Office forthwith.

[Rule 11 amended: Gazette 27 Feb 2018 p. 556.]

Order 11 — Service of foreign process

[1A.Deleted: Gazette 3 Jul 2009 p. 2685.]

1.Terms used

In this Order — 

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

process includes a citation.

2A.Application of this Order

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

(a)a court or tribunal; or

(b)a consular or other authority,

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

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

(3)A letter of request referred to in subrule (1), any document that accompanies the letter of request and any other document to be filed for the purposes of this Order cannot be filed electronically.

[Rule 2A inserted: Gazette 3 Jul 2009 p. 2685; amended: Gazette 27 Feb 2018 p. 556.]

2.Service pursuant to letter of request for service

(1)This rule applies to the service of any process required to be served in any civil or commercial proceedings pending before a court or other tribunal of a foreign country where a letter of request from such a tribunal for service on a person in Western Australia of any such process sent with the letter is received by the Principal Registrar through an official channel.

(2)In order that service may be effected under this rule the letter of request must be accompanied by a translation thereof in English, by 2 copies of the process to be served and by 2 copies of a translation of the process in English.

(3)Subject to rule 4 and to any Act which provides for the manner in which documents may be served on bodies corporate, service of the process shall be effected by leaving a copy of it and of the translation with the person to be served.

(4)The Principal Registrar shall transmit through the official channel to the tribunal making the request, a certificate establishing the fact, and the date of service, or stating the reasons for which it has not been possible to effect service, and in the certificate shall certify the amount properly payable for effecting or attempting to effect service. The certificate shall be sealed with the seal of the Supreme Court.

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

3.Service under Convention

(1)This rule applies to the service of any process required to be served in any civil or commercial proceedings pending before a court or other tribunal of a foreign country with which a Convention in that behalf has been or shall be made and extended to Australia or the State of Western Australia where a letter of request from a consular or other authority of that country requesting service on a person in Western Australia of any such process sent with the letter is received by the Principal Registrar.

(2)In order that service may be effected under this rule the letter of request must be accompanied by a copy of a translation in English of the process to be served.

(3)Subject to any Act which provides for the manner in which documents may be served on bodies corporate and to any special provisions of the Convention, service of the process shall be effected by leaving the original process or a copy of it, as indicated in the letter of request, and a copy of the translation with the person to be served.

(4)When service of the process has been effected or if attempts to effect service have failed, the process server shall leave with the Principal Registrar an affidavit made by the person who served or attempted to serve, the process stating when, where and how he did or attempted to do so, and a statement of the costs incurred in effecting or attempting to effect service.

(5)The Principal Registrar shall transmit to the consular or other authority by whom the request for service was made a certificate certifying that the process or a copy thereof as the case may be, was served on the person, at the time and in the manner specified in the certificate, or if such be the case, that service of the process could not be effected for the reason so specified, and certifying the amount properly payable for effecting or attempting to effect, service. The certificate shall be sealed with the seal of the Supreme Court.

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

4.Service to be through sheriff

Service of process under the provisions of this Order shall be effected through the sheriff by the process server whom he may from time to time appoint for that purpose, or his authorised agent.

5.Consequential orders

Upon the application of the State Solicitor, with the consent of the Attorney General, the Court may make all such orders for substituted service or otherwise as are necessary to give effect to the rules of this Order.

[Rule 5 amended: Gazette 19 Apr 2005 p. 1298.]

Order 11A  Service under the Hague Convention

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

Division 1 — Preliminary

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

Note:

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

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

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

1.Terms used

In this Order —

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

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

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

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

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

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

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

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

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

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

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

forwarding authority —

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

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

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

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

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

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

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

this jurisdiction means Western Australia .

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

2.Provisions of this Order to prevail

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

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

Division 2 — Service abroad of local judicial documents

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

3.Application of this Division

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

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

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

4.Application for request for service abroad

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

(1A)If the local judicial document is a document of the Court, the application, and any other document to be filed for the purposes of this rule, must be filed electronically.

(1B)If the local judicial document is not a document of the Court, the application, and any other document to be filed for the purposes of this rule, cannot be filed electronically.

(2)The application must be accompanied by each of the following documents (if the application is filed electronically) or 3 copies of each of those documents (if the application is not filed electronically) —

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

(b)the document to be served;

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

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

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

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

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

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

and

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

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

(4)The draft request for service abroad —

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

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

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

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

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

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

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

[Rule 4 inserted: Gazette 3 Jul 2009 p. 2687‑9; amended: Gazette 27 Feb 2018 p. 557.]

5.How application to be dealt with

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

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

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

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

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

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

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

(b)the document to be served;

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

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

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

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

6.Procedure on receipt of certificate of service

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

7.Payment of costs

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

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

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

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

[Rule 7 inserted: Gazette 3 Jul 2009 p. 2690‑1; amended: Gazette 27 Feb 2018 p. 557.]

8.Evidence of service

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

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

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

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

Division 3 — Default judgment following service abroad of initiating process

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

9.Application of this Division

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

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

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

(1)This rule applies if —

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

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

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

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

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

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

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

and

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

(3)In subrule (2)(b) —

sufficient time means —

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

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

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

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

(1)This rule applies if —

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

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

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

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

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

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

(c)every reasonable effort has been made —

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

(ii)to effect service of the initiating process,

as the case requires.

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

12.Setting aside judgment in default of appearance

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

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

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

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

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

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

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

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

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

Division 4 — Local service of foreign judicial documents

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

13.Application of this Division

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

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

(b)by a forwarding authority.

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

(a)the document to be served;

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

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

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

(3)Any translation required under subrule (2)(d) must bear a certificate (in English) signed by the translator stating —

(a)that the translation is an accurate translation of the document; and

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

(4)A request for service referred to in subrule (2), and any other document to be filed for the purposes of this rule, cannot be filed electronically.

[Rule 13 inserted: Gazette 3 Jul 2009 p. 2693‑4; amended: Gazette 27 Feb 2018 p. 557.]

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

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

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

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

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

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

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

Note:

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

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

15.Service

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

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

(a)the document to be served;

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

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

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

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

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

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

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

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

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

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

16.Affidavit as to service

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

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

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

(c)the method of service; and

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

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

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

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

(b)the reasons that have prevented service.

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

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

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

(4)A certificate of service must be —

(a)in the form of Form 5A Part 2; or

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

(5)An affidavit as to service to be filed in accordance with this rule cannot be filed electronically.

[Rule 16 inserted: Gazette 3 Jul 2009 p. 2695‑6; amended: Gazette 27 Feb 2018 p. 558.]

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

Order 12  Appearance

1.Who may enter appearance

(1)Subject to subrule (2) and to Order 70 rule 2, a defendant to an action may (whether or not he is sued as a trustee or personal representative or in any other representative capacity) enter an appearance in the action and defend it by a practitioner or in person.

(2)Except as expressly provided by any Act, a defendant to such an action which is a body corporate may not enter an appearance in the action or defend it otherwise than by a practitioner.

[Rule 1 amended: Gazette 7 Oct 1977 p. 3602; 22 Feb 2008 p. 634; 28 Jun 2011 p. 2552.]

2.How to enter an appearance

(1)To enter an appearance, a defendant must file 2 copies of a Form No. 6 signed by —

(a)the practitioner who acts for the defendant; or

(b)if the defendant is self‑represented, the defendant.

(2)A memorandum of appearance must, in accordance with Order 71A, state —

(a)the defendant’s geographical address; and

(b)the defendant’s service details.

(3)If one practitioner acts for 2 or more defendants in one action, a memorandum of appearance may relate to more than one of those defendants.

[Rule 2 inserted: Gazette 22 Feb 2008 p. 634.]

3.Procedure on receipt of requisite documents

On receiving the requisite documents the proper officer must in all cases affix to the copy of the memorandum of appearance an official stamp showing the date on which he received those documents, record the entry of appearance, and then return the copy of the memorandum to the person entering the appearance and the copy memorandum so stamped shall be a certificate that the appearance was entered on the day indicated on the official stamp.

[Rule 3 amended: Gazette 15 Jun 1973 p. 2247; 27 Feb 2018 p. 558.]

4.Appearance to be served on plaintiff

On the day on which a defendant enters an appearance to a writ, the defendant must comply with Order 72 rule 5 for the purposes of serving the stamped copy memorandum returned under rule 3 on the plaintiff in accordance with that Order.

[Rule 4 inserted: Gazette 22 Feb 2008 p. 635.]

5.Late appearance

(1)A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the Court.

(2)Except as provided by subrule (1), nothing in these rules or any writ or order thereunder shall be construed as preventing a defendant from entering an appearance in an action after the time limited for appearing, but if a defendant enters an appearance after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time.

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

6.Conditional appearance

(1)A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, or the service of the originating process, or notice thereof, on the ground of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this rule.

(2)The defendant shall forthwith apply to the Court to have the question raised by his conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the Court otherwise orders, become and operate as an unconditional appearance.

7.Setting aside writ etc. before appearance

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

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

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

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

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

Any person not named as a defendant in a writ for the recovery of land may, by leave of the Court, appear and defend on filing an affidavit showing that he has an interest in the land which would be prejudiced or frustrated if an order for recovery were made without his being a party.

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

Where a person not named as a defendant in a writ for the recovery of land has obtained leave of the Court to appear and defend he shall in all subsequent proceedings be named as a party defendant to the action.

10.Limiting defence in action for possession of land

(1)Any person appearing to a writ for the recovery of land may limit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty in his memorandum of appearance or in a notice intituled in the action and signed by him or his solicitor, and such notice shall be served within 4 days after appearance, and an appearance where the defence is not so limited shall be deemed an appearance to defend for the whole.

(2)The notice mentioned in subrule (1) shall be in accordance with Form No. 7.

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

Order 13  Judgment in default of appearance to writ

[Heading inserted: Gazette 16 Nov 2016 p. 5189.]

1.Plaintiff may enter judgment if defendant fails to enter appearance

(1)This Order applies only to proceedings commenced by writ.

(2)If a defendant does not enter an appearance within the time limited for appearing, the plaintiff may enter judgment against that defendant in accordance with this Order.

(3)Judgment must not be entered against a defendant under this Order unless —

(a)an affidavit is filed by or on behalf of the plaintiff proving service of the writ on the defendant and indorsement of service in accordance with Order 9 rule 1(4); or

(b)the plaintiff produces the writ indorsed by the defendant’s solicitor with a statement that the defendant’s solicitor accepts service of the writ on the defendant’s behalf.

(4)The Court may require to be satisfied in whatever manner it thinks fit that the defendant has failed to enter an appearance.

[Rule 1 inserted: Gazette 16 Nov 2016 p. 5189‑90.]

2.Claim for liquidated demand

(1)If the writ is indorsed with a claim for a liquidated demand only, then, if a defendant fails to enter an appearance within the time limited for appearing, the plaintiff may —

(a)enter judgment against the defendant for a sum not exceeding that claimed by the writ in respect of the demand and costs; and

(b)proceed with the action against the other defendants, if any, unless the defendants are sued in the alternative.

(2)On a judgment under this rule, the plaintiff may issue execution on the judgment.

(3)A claim is not excluded from this rule just because part of it is for interest under section 32 of the Act at a rate that is not higher than that payable on judgment debts at the date of the writ.

[Rule 2 inserted: Gazette 16 Nov 2016 p. 5190.]

3.Claims for unliquidated damages

(1)If the writ is indorsed with a claim for unliquidated damages only, then, if a defendant fails to enter an appearance within the time limited for appearing, the plaintiff may —

(a)enter judgment against the defendant and obtain an order for directions for the assessment of damages; and

(b)proceed with the action against the other defendants, if any, unless the defendants are sued in the alternative.

(2)On a judgment under this rule —

(a)damages are to be assessed by a master unless the Court orders otherwise; and

(b)judgment after the assessment of damages is to be entered as a default judgment under this rule; and

(c)the plaintiff may issue execution on the judgment.

[Rule 3 inserted: Gazette 16 Nov 2016 p. 5190‑1.]

4.Claim relating to detention of goods (excluding mortgage actions)

(1)If the writ is indorsed with a claim relating to the detention of goods only and is not a mortgage action, then, if a defendant fails to enter an appearance within the time limited for appearing, the plaintiff may —

(a)at the plaintiff’s option, enter judgment against the defendant either —

(i)for the delivery of the goods or their value to be assessed and costs; or

(ii)for the value of the goods to be assessed and costs;

and

(b)proceed with the action against the other defendants, if any, unless the defendants are sued in the alternative.

(2)On a judgment under this rule —

(a)the value of the goods is to be assessed by a master unless the Court orders otherwise; and

(b)judgment after the assessment of the value of the goods is to be entered as a default judgment under this rule; and

(c)the plaintiff may issue execution on the judgment, except as provided in subrule (3).

(3)If the judgment is for the delivery of goods it cannot be enforced against any defendant unless judgment has been entered or obtained against all other defendants, if any.

[Rule 4 inserted: Gazette 16 Nov 2016 p. 5191‑2.]

5.Claim for possession of land (excluding mortgage actions)

(1)If the writ is indorsed with a claim for possession of land only, then, if a defendant fails to enter an appearance within the time limited for appearing, the plaintiff may, on complying with subrule (2) —

(a)enter judgment for possession of the land against the defendant and costs; and

(b)proceed with the action against the other defendants, if any.

(2)In order to enter judgment under this rule, the plaintiff must file a certificate from the plaintiff’s solicitor or, if suing in person, an affidavit stating that the plaintiff is not claiming relief of any of the kinds referred to in Order 4AA rule 2(1).

(3)On a judgment under this rule, the plaintiff may issue execution of the judgment, except as provided in subrule (4).

(4)If there is more than one defendant, judgment entered under this rule cannot be enforced against any defendant unless judgment has been entered or obtained against all the defendants.

[Rule 5 inserted: Gazette 16 Nov 2016 p. 5192.]

6.Mortgage actions

(1)If an action begun by writ is a mortgage action, then, if a defendant fails to enter an appearance within the time limited for appearing, the plaintiff may, subject to subrules (2) and (3) —

(a)enter judgment against the defendant for the relief sought and costs; and

(b)proceed with the action against the other defendants, if any, unless the defendants are sued in the alternative.

(2)If the writ is indorsed with a claim for relief of a kind referred to in Order 4AA rule 2(1)(a), (b) or (c), in order to enter judgment under this rule, the plaintiff must, after the time limited for appearing has expired —

(a)serve on the defendant a notice in Form 36A with a copy of the writ and Form 4 attached to it; and

(b)not less than 11 days after serving the notice, file but need not serve —

(i)a request to enter default judgment in Form 36B; and

(ii)an affidavit in support that complies with rule 7.

(3)If, in addition to a claim for relief of a kind referred to in Order 4AA rule 2(1)(a), (b) or (c), the writ is also indorsed with a claim for payment of money secured by the mortgage, the Form 36B request to enter default judgment must certify —

(a)the amount owing to the plaintiff under the mortgage as at the date of the filing of the request; and

(b)if the claims include a claim for interest after judgment, the amount of a day’s interest.

(4)On a judgment under this rule, the plaintiff may issue execution on the judgment, except as provided in subrule (5).

(5)If there is more than one defendant, judgment entered under this rule cannot be enforced against any defendant unless judgment has been entered or obtained against all the defendants.

(6)Unless the Court orders otherwise, if judgment against a defendant under this rule is for the kind of relief referred to in Order 4AA rule 2(1)(a), within 28 days after service of the judgment the defendant must give the plaintiff possession of the mortgaged property.

[Rule 6 inserted: Gazette 16 Nov 2016 p. 5192‑4.]

7.Content of affidavit required by r. 6(2)(b)(ii)

(1)In this rule —

mortgage, mortgagee and mortgagor have the meanings given in Order 4AA rule 1.

(2)An affidavit in support filed under rule 6(2)(b)(ii) must —

(a)specify the property that is mortgaged; and

(b)specify the person who is the proprietor of the mortgaged property; and

(c)have attached to it a copy of —

(i)the certificate of title or other document that is evidence of title to the mortgaged property; and

(ii)the mortgage;

and

(d)give particulars of the default or other circumstances that are put forward as entitling the plaintiff to the relief sought, including —

(i)a reference to the provision of the mortgage that the defendant is alleged to have breached; and

(ii)a reference to the provision of the mortgage that entitles the plaintiff to the relief sought; and

(iii)if the writ is indorsed with a claim for payment of money secured by the mortgage, a reference to any non‑merger provision of the mortgage that allows the recovery of interest at mortgage rates after judgment; and

(iv)a statement as to whether or not notice of that default or those circumstances is required to be given to the defendant under the mortgage or a written law; and

(v)if notice is required, details of compliance with that requirement;

and

(e)if the claim against the defendant is for sale or possession of mortgaged property —

(i)state that Order 4AA rule 3(2) and Order 13 rule 6(2)(a) have been complied with; and

(ii)give details of every person who, to the best of the plaintiff’s knowledge, is in possession of the property and the grounds for concluding that the person is in possession; and

(iii)if one or more of the people who are in possession of the property are tenants of the property, give details of the steps taken by the plaintiff to comply with any applicable requirements of the Residential Tenancies Act 1987;

and

(f)specify the following as at the date of the affidavit —

(i)the amount owing to the plaintiff under the mortgage;

(ii)the interest rate (as a percentage) under the mortgage;

(iii)if the claim includes a claim for interest to judgment, the amount of a day’s interest;

and

(g)if the plaintiff is claiming costs (other than an order that the defendant pay the plaintiff’s costs to be taxed if not agreed), state the basis on which the plaintiff claims those costs.

Example for this subrule:

A claim for indemnity costs must refer to the provision in the mortgage that entitles the plaintiff to those costs.

(3)More than one affidavit may be used to comply with rule 6(2)(b)(ii) and this rule.

[Rule 7 inserted: Gazette 16 Nov 2016 p. 5194‑6.]

8.Writs for 2 or more claims to which r. 2 to 6 apply

If the writ is indorsed with 2 or more claims to which rules 2 to 6 apply, and no other claim, then, if a defendant fails to enter an appearance within the time limited for appearing, the plaintiff may —

(a)enter against the defendant, in respect of any claim with which the writ is indorsed, whatever judgment the plaintiff would be entitled to enter under those rules as if that were the only claim made by the plaintiff against the defendant; and

(b)proceed with the action against the other defendants, if any, unless those rules otherwise provide.

[Rule 8 inserted: Gazette 16 Nov 2016 p. 5196‑7.]

9.Writs for other claims

(1)If the writ is indorsed with a claim to which none of rules 2 to 6 apply, then, if a defendant fails to enter an appearance within the time limited for appearing, the plaintiff may, on complying with subrule (2) —

(a)apply to the Court on motion for judgment against the defendant for the relief sought and costs; and

(b)proceed with the action against the other defendants, if any, unless the defendants are sued in the alternative.

(2)In order to enter judgment under this rule —

(a)if the statement of claim was not indorsed on or served with the writ, the plaintiff must serve the statement of claim on the defendant; and

(b)the plaintiff must produce a certificate issued by the proper officer on the day of the hearing stating that no appearance has been entered by the defendant against whom it is sought to enter judgment.

(3)On a judgment under this rule, the plaintiff may issue execution on the judgment, except as provided in subrule (4).

(4)If there is more than one defendant, judgment entered under this rule cannot be enforced against any defendant without leave of the Court.

[Rule 9 inserted: Gazette 16 Nov 2016 p. 5197.]

10.Entry of judgment for costs only upon writs for other claims

(1)This rule applies if —

(a)the writ is indorsed with a claim to which none of rules 2 to 6 apply; but

(b)it has become unnecessary for the plaintiff to proceed with the action —

(i)because the defendant has satisfied the claim or complied with the demands of the claim; or

(ii)for any other similar reason.

(2)If this rule applies, then, if the defendant fails to enter an appearance within the time limited for appearing, the plaintiff may, with the leave of the Court, enter judgment against the defendant for costs.

(3)The application for the leave must be by summons.

(4)Unless the Court orders otherwise, and regardless of Order 72 rule 8, the summons must be served on the defendant against whom it is sought to enter judgment.

[Rule 10 inserted: Gazette 16 Nov 2016 p. 5198.]

11.Reference to Court in case of doubt or difficulty

In any case in which the plaintiff claims to be entitled under this Order to enter judgment in default of the defendant’s appearance, the Court may, if any doubt or difficulty arises in relation to that claim, direct that it be brought before the Court on motion or by summons.

[Rule 11 inserted: Gazette 16 Nov 2016 p. 5198.]

12.Default judgment to inform defendant of certain matters

A default judgment must contain a statement informing the defendant of the defendant’s right —

(a)to apply to have the default judgment set aside or varied; and

(b)if applicable, to apply under the Civil Judgments Enforcement Act 2004 section 15 for an order suspending the enforcement of all or part of the default judgment.

[Rule 12 inserted: Gazette 16 Nov 2016 p. 5198‑9.]

13.Service of default judgment

(1)A plaintiff who obtains a default judgment must serve the judgment on the defendant as soon as practicable after the judgment is entered.

(2)The defendant must be served personally with the default judgment.

[Rule 13 inserted: Gazette 16 Nov 2016 p. 5199.]

14.Setting aside or varying default judgment

The Court may, on whatever terms it thinks just, set aside or vary any default judgment entered under this Order.

[Rule 14 inserted: Gazette 16 Nov 2016 p. 5199.]

Order 14 — Summary judgment

1.When plaintiff may apply for summary judgment

(1)Where in an action to which this Order applies a statement of claim has been served on a defendant and that defendant has entered an appearance, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such claim, or has no defence to such a claim or part except as to the amount of any damages claimed, within 21 days after appearance or at any later time by leave of the Court, apply to the Court for judgment against that defendant.

(2)This Order applies to every action begun by writ other than a probate or admiralty action.

[Rule 1 amended: Gazette 5 Jun 1992 p. 2279; 28 Oct 1996 p. 5675.]

2.Application under r. 1, how to make

(1)An application under rule 1 shall be made by summons supported by an affidavit verifying the facts on which the claim or the part of the claim to which the application relates is based, and stating that in the deponent’s belief there is no defence to that claim or part thereof, as the case may be, or no defence except as to the amount of any damages claimed.

(2)Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.

(3)The summons and a copy of the affidavit in support and of any exhibits therein referred to shall be served on the defendant not less than 7 days before the return day of the summons.

[Rule 2 amended: Gazette 3 Oct 1975 p. 3769.]

3.Judgment may be given for plaintiff

(1)On the hearing of an application under rule 1 unless the Court dismisses the application, or the defendant satisfies the Court with respect to the claim, or the part of the claim, to which the application relates that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against the defendant on that claim or part thereof as may be just, having regard to the nature of the remedy or relief claimed.

(2)The Court may, by order and subject to such conditions, if any, as may be just, stay execution of any judgment given against a defendant under this rule until after the trial of any counterclaim made or raised by the defendant in the action.

4.Defendant may be given leave to defend

(1)A defendant may show cause against an application under rule 1 by affidavit or otherwise to the satisfaction of the Court.

(2)Rule 2(2) applies mutatis mutandis for the purposes of this rule.

(3)The Court may give a defendant against whom such an application is made leave to defend the action with respect to the claim, or the part of a claim to which the application relates, either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit.

(4)On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary, or other similar officer thereof, or any person purporting to act in such capacity — 

(a)to produce any document; or

(b)if it appears to the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.

[5.Deleted: Gazette 28 Oct 1996 p. 5675.]

6.Summary judgment on counterclaim

(1)Where a defendant in an action begun by writ has served a counterclaim on the plaintiff, then subject to subrule (3) the defendant may, on the ground that the plaintiff has no defence to a claim made in the counterclaim, or to a particular part of such claim, apply to the Court for judgment against the plaintiff on that claim or part.

(2)Rules 2, 3 and 4 apply in relation to an application under this rule as they apply in relation to an application under rule 1, but with the following modifications, that is to say — 

(a)references to the plaintiff and defendant shall be construed as references to defendant and plaintiff respectively; and

(b)the words in rule 3(2) “any counterclaim made or raised by the defendant in” shall be omitted; and

(c)the reference in rule 4(3) to the action shall be construed as a reference to the counterclaim to which the application under this rule relates.

(3)This rule shall not apply to a counterclaim which includes any such claim as is referred to in rule 1(2).

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

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

Where the Court — 

(a)gives leave (whether conditional or unconditional) to defend any action or counterclaim, as the case may be, with respect to a claim or a part of a claim; or

(b)gives judgment for a plaintiff or a defendant on a claim or a part of a claim, but also orders that execution of the judgment be stayed pending the trial of a counterclaim or of the action, as the case may be,

the Court may give directions as to the further conduct of the action and may direct that the affidavit filed by the defendant or the plaintiff, as the case may be, under this Order, shall serve in lieu of defence and may order the action to be forthwith set down for trial, and may define the issues that are to be tried.

[Rule 7 amended: Gazette 16 Aug 2017 p. 4410.]

8.Costs

(1)If the plaintiff makes an application under rule 1 and the case is not within this Order, or if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, the Court may dismiss the application with costs, and may require the costs to be paid by the plaintiff forthwith.

(2)The Court shall have the same power to dismiss an application under rule 6 as it has under subrule (1) to dismiss an application under rule 1, and that subrule shall apply accordingly with the necessary modifications.

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

9.Right to proceed with residue of action or counterclaim

(1)Where on an application under rule 1 the plaintiff obtains judgment on a claim or a part of a claim against any defendant, he may proceed with the action as respects any other claim, or as respects the remainder of the claim or against any other defendant.

(2)Where on an application under rule 6 a defendant obtains judgment on a claim or part of a claim made in a counterclaim against the plaintiff, he may proceed with the counterclaim as respects any other claim or as respects the remainder of the claim or against any other defendant to the counterclaim.

10.Judgment for delivery of specific chattel

Where the claim to which an application under rule 1 or rule 6 relates is for the delivery up of a specific chattel, and the Court gives judgment under this Order for the applicant, the Court shall have the same power to order the party against whom judgment is given to deliver up the chattel without giving him an option to retain it on paying the assessed value thereof as if the judgment had been given after trial.

11.Relief from judgment for recovery of land

A tenant shall have the same right to relief after a judgment under this Order for the recovery of land on the ground of forfeiture as if the judgment had been given after trial.

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

Any judgment given against a party who does not appear at the hearing of an application under rule 1 or rule 6 may be set aside or varied by the Court on such terms as it thinks just.

[Order 15 deleted: Gazette 28 Oct 1996 p. 5675.]

Order 16 — Summary judgment on application of defendant

1.Application by defendant for summary judgment

(1)Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order — 

(a)that judgment be entered for the defendant with or without costs; or

(b)that the plaintiff shall proceed to trial without pleadings,

or if all parties consent, may dispose of the action finally and without appeal in a summary manner.

(2)An application under subrule (1) shall be made by summons supported by affidavit verifying the facts upon which the application is based.

(3)Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.

(4)The summons and a copy of the affidavit in support and its annexures, if any, shall be served on the plaintiff not less than 7 days before the return day of the summons.

[Rule 1 amended: Gazette 14 Dec 1979 p. 3869; 5 Jun 1992 p. 2279‑80; 28 Jun 2011 p. 2552.]

2.Plaintiff may show cause

(1)The plaintiff may show cause against such application by affidavit.

(1a)Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.

(2)The Court may if it thinks fit, order the plaintiff or the defendant or in the case of a corporation any officer thereof to attend and be examined and cross‑examined upon oath or to produce any papers, books, or documents, or copies of, or extracts therefrom.

[Rule 2 amended: Gazette 14 Dec 1979 p. 3869; 5 Jun 1992 p. 2280; 28 Jul 2010 p. 3482.]

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

If the Court directs that the action shall proceed to trial, it may give directions as to the further conduct of the action and may order that the action be forthwith set down for trial.

[Rule 3 amended: Gazette 14 Dec 1979 p. 3869; 16 Aug 2017 p. 4410.]

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

Any judgment given against a party who does not appear at the hearing of the application under rule 1 may be set aside or varied by the Court on such terms as it thinks just.

[Rule 4 inserted: Gazette 5 Jun 1992 p. 2280.]

Order 17 — Interpleader

1.When interpleader relief may be granted

Relief by way of interpleader may be granted by the Court — 

(a)where the person seeking relief (called the applicant) is under liability — 

(i)to yield up or give possession of any land; or

(ii)to perform a contract; or

(iii)for any debt or money; or

(iv)to yield up goods or chattels or any document, muniment of title, or security,

in respect of which he is or expects to be sued by 2 or more parties (called the claimants) making adverse claims.

[(b)deleted]

[Rule 1 amended: Gazette 21 Feb 2007 p. 536.]

2.How to apply for interpleader relief

(1)An application for relief under this Order must be made by originating summons unless made in a pending action, in which case it must be made by summons in the action.

(2)No appearance need be entered to an originating summons under this rule.

(3)A summons under this rule must be supported by evidence that the applicant — 

(a)claims no interest in the subject‑matter in dispute other than for charges and costs; and

(b)does not collude with any of the claimants to that subject‑matter; and

(c)is willing to dispose of any property involved in such manner as the Court or a judge may direct.

[Rule 2 amended: Gazette 21 Feb 2007 p. 536; 28 Jun 2011 p. 2552; 24 May 2017 p. 2607.]

3.Time for application by defendant

Where the applicant is a defendant, application for relief may be made at any time after the service of the writ.

4.Stay of proceedings

If the application is made by a defendant the Court may stay all further proceedings.

5.Court’s powers on application

If the claimants appear in pursuance of the summons the Court or a judge may order either that any claimant be made a defendant in any action already commenced in respect of the subject‑matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may give directions as to which of the claimants is to be plaintiff and which defendant, and as to the method of trial and such other directions as may be necessary in the circumstances.

6.Summary determination

The Court may, with the consent of both claimants or on the request of any claimant dispose of the merits of the claims and decide the same in a summary manner.

[Rule 6 amended: Gazette 21 Feb 2007 p. 536.]

7.Where question of law only

Where the question is one of law, and the facts are not in dispute, the Court may either decide the question without directing the trial of an issue, or order that a special case be stated for the opinion of the Court. If a special case is stated Order 31 shall, as far as applicable, apply.

8.Claimant failing to appear etc.

If a claimant, having been duly served with a summons calling on him to appear and maintain or relinquish his claim does not appear in pursuance of the summons, or, having appeared, neglects or refuses to comply with any order made after his appearance, the Court may make an order declaring him and all persons claiming under him barred against the applicant and persons claiming under him.

9.Power to order sale of goods

Whenever it appears desirable from the nature of the subject matter or the parties agree, the Court or a judge may order the sale of the whole or any part thereof and direct the application of the proceeds according to the rights of the parties as determined on the interpleader proceedings.

10.Discovery etc. and trial

The rules relating to discovery, interrogatories and inspection, and the trial of actions shall apply to interpleader issues with the necessary modifications.

11.One order where several causes pending

Where in any interpleader proceeding it is necessary or expedient to make one order in several causes or matters, such order may be made by the Court before whom the proceedings may be taken, and shall be entitled in such causes or matters; and any such order (subject to the right of appeal) shall be binding on the parties in all such causes or matters.

[12‑14.Deleted: Gazette 21 Feb 2007 p. 536.]

15.Orders as to costs etc.

Subject to rules 1 to 11, the Court may in and for the purposes of any interpleader proceedings make such order as to costs or any other matter as it thinks just.

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

Order 18 — Causes of action, counterclaims and parties

1.Joinder of causes of action

(1)Subject to rule 5(1), a plaintiff may in one action claim relief against the same defendant in respect of more than one cause of action — 

(a)if the plaintiff claims, and the defendant is alleged to be liable, in the same capacity in respect of all the causes of action; or

(b)if the plaintiff claims or the defendant is alleged to be liable in the capacity of executor or administrator of an estate in respect of one or more of the causes of action and in his personal capacity but with reference to the same estate in respect of all the others; or

(c)with the leave of the Court.

(2)An application for leave under this rule must be made ex parte by affidavit before the issue of the writ and the affidavit must state the grounds of the application.

2.Counterclaim against plaintiff

(1)Subject to rule 5(2), a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counterclaim in respect of that matter; and where he does so he must add the counterclaim to his defence.

(2)Rule 1 shall apply in relation to a counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.

(3)A counterclaim may be proceeded with notwithstanding that judgment is given for the plaintiff in the action or that the action is stayed, discontinued or dismissed.

(4)Where a defendant establishes a counterclaim against the claim of the plaintiff and there is a balance in favour of one of the parties, the Court may give judgment for the balance, so, however, that this provision shall not be taken as affecting the Court’s discretion with respect to costs.

3.Counterclaim against additional parties

(1)Where a defendant to an action who makes a counterclaim against the plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the plaintiff in respect of the subject‑matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject‑matter of the action then, subject to rule 5(2), he may join that other person as a party against whom the counterclaim is made.

(2)Where a defendant joins a person as a party against whom he makes a counterclaim, he must add that person’s name to the title of the action and serve on him a copy of the counterclaim; and a person on whom a copy of a counterclaim is served under this subrule shall, if he is not already a party to the action, become a party to it as from the time of service with the same rights in respect of his defence to the counterclaim and otherwise as if he had been duly sued in the ordinary way by the party making the counterclaim.

(3)A defendant who is required by subrule (2) to serve a copy of the counterclaim made by him on any person who before service is already a party to the action must do so within the period within which by virtue of Order 20 rule 4, he must serve on the plaintiff the defence to which the counterclaim is added.

(4)Where by virtue of subrule (2) a copy of a counterclaim is required to be served on a person who is not already a party to the action, the following provisions of these rules, namely, Order 9 except rule 1(4), Order 10, Order 12 and Order 13 shall, subject to subrule (3), apply in relation to the counterclaim and the proceedings arising from it as if — 

(a)the counterclaim were a writ and the proceedings arising from it an action; and

(b)the party making the counterclaim were a plaintiff and the party against who it is made a defendant in that action.

(5)A copy of a counterclaim required to be served on a person who is not already a party to the action must be indorsed with a notice, in Form No. 10, addressed to that person.

[Rule 3 amended: Gazette 22 Feb 2008 p. 635; 28 Jun 2011 p. 2552 and 2553; 12 Jun 2012 p. 2451.]

4.Joinder of parties

(1)Subject to rule 5(1), 2 or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where — 

(a)if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

(b)all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.

(2)Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any Act and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this subrule, be made a defendant.

This subrule shall not apply to a probate action.

(3)Where relief is claimed in an action against a defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant to the action; but where persons are jointly, but not severally, liable under a contract and relief is claimed against some but not all of those persons in an action in respect of that contract, the Court may, on the application of any defendant to the action, by order stay proceedings in the action until the other persons so liable are added as defendants.

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

5.Court may order separate trials etc.

(1)If claims in respect of 2 or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if 2 or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient.

(2)If it appears on the application of any party against whom a counterclaim is made that the subject‑matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient.

6.Misjoinder and nonjoinder of parties

(1)No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application — 

(a)order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b)order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,

but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(3)An application by any person for an order under subrule (2) adding him as a defendant must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter.

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

7.Change of parties by reason of death etc.

(1)Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy.

(2)Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first‑mentioned party.

An application for an order under this subrule may be made ex parte.

(3)An order may be made under this rule for a person to be made a party to a cause or matter notwithstanding that he is already a party to it on the other side of the record, or on the same side but in a different capacity; but — 

(a)if he is already a party on the other side, the order shall be treated as containing a direction that he shall cease to be a party on that other side; and

(b)if he is already a party on the same side but in another capacity, the order may contain a direction that he shall cease to be a party in that other capacity.

(4)The person on whose application an order is made under this rule must procure the order to be noted in the Cause Book and after the order has been so noted that person must, unless the Court otherwise directs, serve the order on every other person who is a party to the cause or matter or who becomes or ceases to be a party by virtue of the order and serve with the order on any person who becomes a defendant a copy of the writ or originating summons by which the cause or matter was begun.

(5)Any application to the Court by a person served with an order made ex parte under this rule for the discharge or variation of the order must be made within 14 days after the service of the order on that person.

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

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

(1)Where an order is made under rule 6, the writ by which the action in question was begun must be amended accordingly and must be indorsed with — 

(a)a reference to the order in pursuance of which the amendment is made; and

(b)the date on which the amendment is made,

and the amendment must be made within such period as may be specified in the order or, if no period is so specified, within 14 days after the making of the order.

(2)Where by an order under rule 6 a person is to be made a defendant, the rules as to service of a writ of summons shall apply accordingly to service of the amended writ on him, but before serving the writ on him the person on whose application the order was made must procure the order to be noted in the Cause Book.

(3)Where by an order under rule 6 or 7 a person is to be made a defendant, the rules as to entry of appearance shall apply accordingly to entry of appearance by him, subject, in the case of a person to be made a defendant by an order under rule 7, to the modification that the time limited for appearing shall begin with the date on which the order is served on him under rule 7(4) or, if the order is not required to be served on him, with the date on which the order is noted in the Cause Book.

(4)Where by an order under rule 6 or 7 a person is to be added as a party or is to be made a party in substitution for some other party, that person shall not become a party until — 

(a)where the order is made under rule 6, the writ has been amended in relation to him under this rule and (if he is a defendant) has been served on him; or

(b)where the order is made under rule 7, the order has been served on him under rule 7(4) or, if the order is not required to be served on him, the order has been noted in the Cause Book,

and where by virtue of such an order a person becomes a party in substitution for some other party, all things done in the course of the proceedings before the making of the order shall have effect in relation to the new party as they had in relation to the old, except that entry of appearance by the old party shall not dispense with entry of appearance by the new party.

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

9.Failure to proceed after death of party

(1)If after the death of a plaintiff or defendant in any action the cause of action survives, but no order under rule 7 is made substituting as plaintiff any person in whom the cause of action vests or, as the case may be, the personal representatives of the deceased defendant, the defendant or, as the case may be, those representatives may apply to the Court for an order that unless the action is proceeded with within such time as may be specified in the order the action shall be struck out as against the plaintiff or defendant, as the case may be, who has died; but where it is the plaintiff who has died, the Court shall not make an order under this rule unless satisfied that due notice of the application has been given to the personal representatives (if any) of the deceased plaintiff and to any other interested persons who, in the opinion of the Court, should be notified.

(2)Where in any action a counterclaim is made by a defendant, this rule shall apply in relation to the counterclaim as if the counterclaim were a separate action and as if the defendant making the counterclaim were the plaintiff and the person against whom it is made a defendant.

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

(1)Without prejudice to rule 6, the Court may at any stage of the proceedings in an action for possession of land order any person not a party to the action who is in possession of the land (whether in actual possession or by a tenant) to be added as a defendant.

(2)An application by any person for an order under this rule may be made ex parte, supported by an affidavit showing that he is in possession of the land in question and if by a tenant, naming him.

(3)A person added as a defendant by an order under this rule must serve a copy of the order on the plaintiff and must enter an appearance in the action within such period, if any, as may be specified in the order or, if no period is so specified, within 7 days after the making of the order, and the rules as to entry of appearance shall apply accordingly to entry of appearance by him.

11.Relator actions

(1)Before the name of any person is used in any action as a relator, that person must give to his solicitor a written authorisation so to use his name and the authorisation must be filed.

(2)In all relator actions the plaintiff shall file with the writ or other originating process, the consent of the Attorney General to the action being brought.

12.Representative proceedings

(1)Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2)At any stage of proceedings under this rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued, to represent all, or all except one or more, of those persons in the proceedings; and where, in exercise of the power conferred by this subrule, the Court appoints a person not named as a defendant, it shall make an order under rule 6 adding that person as a defendant.

(3)A judgment or order given in proceedings under this rule shall be binding on all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.

(4)An application for the grant of leave under subrule (3) must be made by summons which must be served personally on the person against whom it is sought to enforce the judgment or order.

(5)Notwithstanding that a judgment or order to which any such application relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.

(6)The Court hearing an application for the grant of leave under subrule (3) may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in an action may be tried and determined.

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

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

(1)In any proceedings concerning — 

(a)the administration of the estate of a deceased person; or

(b)property subject to a trust; or

(c)the construction of a written instrument, including a statute or a regulation, rule or by‑law made under a statute,

the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in subrule (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings.

(2)The conditions for the exercise of the power conferred by subrule (1) are as follows — 

(a)that the person, the class or some member of the class, cannot be ascertained or cannot readily be ascertained;

(b)that the person, class or some member of the class, though ascertained, cannot be found;

(c)that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purpose of saving expense.

(3)Where in any proceedings to which subrule (1) applies, the Court exercises the power conferred by that subrule, a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall be binding on the person or class represented by the person or persons so appointed.

(4)Where, in any such proceedings, a compromise is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons) but — 

(a)there is some other person in the same interest before the Court who assents to the compromise or on whose behalf the Court sanctions the compromise; or

(b)the absent persons are represented by a person appointed under subrule (1) who so assents,

the Court, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non‑disclosure of material facts.

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

14.Representation of beneficiaries by trustees etc.

(1)Any proceedings, including proceedings to enforce a security by foreclosure or otherwise, may be brought by or against trustees, executors or administrators in their capacity as such without joining any of the persons having a beneficial interest in the trust or estate, as the case may be; and any judgment or order given or made in those proceedings shall be binding on those persons unless the Court in the same or other proceedings otherwise orders on the ground that the trustees, executors or administrators, as the case may be, could not or did not in fact represent the interests of those persons in the first‑mentioned proceedings.

(2)Subrule (1) is without prejudice to the power of the Court to order any person having such an interest as aforesaid to be made a party to the proceedings or to make an order under rule 13.

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

15.Representation of deceased person interested in proceedings

(1)Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.

(2)Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.

16.Declaratory judgment

No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.

17.Conduct of proceedings

The Court may give the conduct of any action, inquiry or other proceeding to such person as it thinks fit.

Order 19 — Third party and similar proceedings

1.Third party notice

(1)Where in any action a defendant who has entered an appearance claims against any person not already a party to the action (in this Order called the third party) — 

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

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

(c)that any question or issue relating to or connected with the original subject‑matter of the action is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party,

then, subject to subrule (2), the defendant may issue a notice in Form No. 11 or 12, whichever is appropriate (in this Order referred to as a third party notice), containing a statement of the nature of the claim made against him and, as the case may be, either of the nature and grounds of the claim made by him or of the question or issue required to be determined.

(2)A defendant to an action may not issue a third party notice without the leave of the Court unless he issues the notice before serving his defence on the plaintiff.

(3)Where a third party notice is served on the person against whom it is issued, he shall as from the time of service be a party to the action with the same rights in respect of his defence against any claim made against him in the notice and otherwise as if he had been duly sued in the ordinary way by the defendant by whom the notice is issued.

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

2.Application for leave to issue third party notice

(1)An application for leave to issue a third party notice may be made ex parte but the Court may direct a summons for leave to be issued.

(2)An application for leave to issue a third party notice must be supported by an affidavit stating — 

(a)the nature of the claim made by the plaintiff in the action; and

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

(c)the nature of the claim made by the applicant or particulars of the question or issue required to be determined, as the case may be, and the facts on which the proposed third party notice is based; and

(d)the name and address of the person against whom the third party notice is to be issued.

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

(1)The order granting leave to issue a third party notice may contain directions as to the period within which the notice is to be issued.

(2)There must be served with every third party notice a copy of the writ by which the action was begun and of the pleadings (if any) served in the action.

(3)Subject to subrules (1) and (2), the following provisions of these rules, namely, Order 5 rules 7, 8 and 11, Order 9 except rule 1(4), Order 10 and Order 12, shall apply in relation to a third party notice and to the proceedings begun thereby as if — 

(a)the third party notice were a writ and the proceedings begun thereby an action; and

(b)the defendant issuing the third party notice were a plaintiff and the person against whom it is issued a defendant in that action.

[Rule 3 amended: Gazette 7 Oct 1977 p. 3602; 28 Jun 2011 p. 2553; 12 Jun 2012 p. 2451.]

4.Third party directions

(1)If the third party enters an appearance, the defendant who issued the third party notice must, within 10 days of the appearance of the third party, by summons to be served on all the other parties to the action, apply to the Court for directions.

(2)If a summons is not served on the third party under subrule (1), the third party may, not earlier than 7 days after entering an appearance, by summons to be served on all the other parties to the action, apply to the Court for directions or for an order to set aside the third party notice.

(3)On an application for directions under this rule the Court may — 

(a)if the liability of the third party to the defendant who issued the third party notice is established on the hearing, order such judgment as the nature of the case may require to be entered against the third party in favour of the defendant; or

(b)order any claim, question or issue stated in the third party notice to be tried in such manner as the Court may direct; or

(c)dismiss the application and terminate the proceedings on the third party notice,

and may do so either before or after any judgment in the action has been signed by the plaintiff against the defendant.

(4)On an application for directions under this rule the Court may give the third party leave to defend the action, either alone or jointly with any defendant, upon such terms as may be just, or to appear at the trial and to take such part therein as may be just, and generally may make such orders and give such directions as appear to the Court proper for having the rights and liabilities of the parties most conveniently determined and enforced and as to the extent to which the third party is to be bound by any judgment or decision in the action.

(5)The Court may at any time vary or rescind any order made or direction given under this rule.

[Rule 4 amended: Gazette 26 Aug 1994 p. 4410; 28 Jun 2011 p. 2552.]

5.Default of third party etc.

(1)If a third party does not enter an appearance or, having been ordered to serve a defence, fails to do so — 

(a)he shall be deemed to admit any claim stated in the third party notice and shall be bound by any judgment (including judgment by consent) or decision in the action in so far as it is relevant to any claim, question or issue stated in that notice; and

(b)the defendant by whom the third party notice was issued may, if judgment in default is given against him in the action, at any time after satisfaction of that judgment and, with the leave of the Court before satisfaction thereof, enter judgment against the third party in respect of any contribution or indemnity claimed in the notice, and, with the leave of the Court, in respect of any other relief or remedy claimed therein.

(2)If a third party or the defendant by whom a third party notice was issued makes default in serving any pleading which he is ordered to serve, the Court may, on the application by summons of that defendant or the third party, as the case may be, order such judgment to be entered for the applicant as he is entitled to on the pleadings or may make such other order as may appear to the Court necessary to do justice between the parties.

(3)The Court may at any time set aside or vary a judgment entered under subrule (1)(b) or subrule (2) on such terms (if any) as it thinks just.

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

6.Setting aside third party proceedings

Proceedings on a third party notice may, at any stage of the proceedings, be set aside by the Court.

7.Judgment between defendant and third party

(1)Where in any action a defendant has served a third party notice, the Court may at or after the trial of the action or, if the action is decided otherwise than by trial, on an application by summons or motion, order such judgment as the nature of the case may require to be entered for the defendant against the third party or for the third party against the defendant.

(2)Where in an action judgment is given against a defendant and judgment is given for the defendant against a third party, execution shall not issue against the third party except as to costs, without the leave of the Court until the judgment against the defendant has been satisfied at least to the extent of the third party liability which he claims to enforce under the judgment.

8.Claims and issues between defendant and another party

(1)Where in any action a defendant who has entered an appearance — 

(a)claims against a person who is already a party to the action any contribution or indemnity; or

(b)claims against such a person any relief or remedy relating to or connected with the original subject‑matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or

(c)requires that any question or issue relating to or connected with the original subject‑matter of the action should be determined not only as between the plaintiff and himself but also as between either or both of them and some other person who is already a party to the action,

then, subject to subrule (2), the defendant may, without leave, issue and serve on that person a notice containing a statement of the nature and grounds of his claim or, as the case may be, of the question or issue required to be determined.

(2)Where a defendant makes such a claim as is mentioned in subrule (1) and that claim could be made by him by counterclaim in the action, subrule (1) shall not apply in relation to the claim.

(3)No appearance to such a notice shall be necessary if the person on whom it is served has entered an appearance in the action or is a plaintiff therein, and the same procedure shall be adopted for the determination between the defendant by whom, and the person on whom, such a notice is served of the claim, question or issue stated in the notice as would be appropriate under this Order if the person served with the notice were a third party and (where he has entered an appearance in the action or is a plaintiff) had entered an appearance to the notice.

(4)Rule 4(2) shall have effect in relation to proceedings on a notice issued under this rule as if for the words “7 days after entering an appearance” there were substituted the words “14 days after service of the notice on him”.

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

9.Claims by third and subsequent parties

(1)Where a defendant has served a third party notice and the third party makes such a claim or requirement as is mentioned in rule 1 or rule 8, this Order shall, with the modification mentioned in subrule (2) and any other necessary modifications, apply as if the third party were a defendant; and similarly where any further person to whom by virtue of this rule this Order applies as if he were a third party makes such a claim or requirement.

(2)The modification referred to in subrule (1) is that subrule (3) shall have effect in relation to the issue of a notice under rule 1 by a third party in substitution for rule 1(2).

(3)A third party may not issue a notice under rule 1 without the leave of the Court unless he issues the notice before the expiration of 14 days after the time limited for appearing to the notice issued against him.

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

10.Offer of contribution

If, before the trial of an action, a party to the action who, either as a third party or as one of 2 or more tortfeasors liable in respect of the same damage, stands to be held liable in the action to another party to contribute towards any debt or damages which may be recovered against that other party in the action, makes (without prejudice to his defence) a written offer to that other party to contribute to a specified extent to the debt or damages, then, notwithstanding that he reserves the right to bring the offer to the attention of the judge at the trial, the offer shall not be brought to the attention of the judge until after all questions of liability and amount of debt or damages have been decided.

11.Counterclaim by defendant

Where in any action a counterclaim is made by a defendant, rules 1 to 10 shall apply in relation to the counterclaim as if the subject‑matter of the counterclaim were the original subject‑matter of the action, and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.

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

12.Costs

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

Order 20 — Pleadings

1.Statement of claim, service of

Unless the Court gives leave to the contrary or a statement of claim is indorsed on the writ, the plaintiff must serve a statement of claim on the defendant or, if there are 2 or more defendants, on each defendant, and must do so either when the writ is served on that defendant or at any time after service of the writ but before the expiration of 14 days after that defendant enters an appearance.

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

2.Statement of claim, content of

(1)A statement of claim must state specifically the relief or remedy which the plaintiff claims, but costs need not be specifically claimed.

(2)A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.

(3)Subject to subrule (2) a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the indorsement of the writ without amending the indorsement.

(4)Except when indorsed on the writ every statement of claim must bear on its face a statement of the date on which the writ in the action was issued.

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

3.Pleadings etc. to be filed before service

(1)Subject to subrule (2) the original of every statement of claim, defence, set off, or counterclaim, and of every reply or subsequent pleading, and of any further particulars of any pleading, a copy of which is required by these rules to be served on one party by another, must be filed before the copy is served, and the copy must be served within one working day after the date of filing the original.

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

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

4.Defence, service of

(1)Subject to subrule (2), a defendant who enters an appearance in, and intends to defend, an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for appearing or after the statement of claim is served on him, whichever is the later.

(2)If a summons under Order 14 rule 1 is served on a defendant before he serves his defence, subrule (1) shall not have effect in relation to him unless by the order made on the summons he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within 14 days after the making of the order or within such other period as may be specified therein.

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

5.Reply and defence to counterclaim, service of

(1)A plaintiff on whom a defendant serves a defence must serve a reply on that defendant if it is needed for compliance with rule 9, and if no reply is served, rule 15(1) will apply.

(2)A plaintiff on whom the defendant serves a counterclaim must, if he intends to defend it, serve on that defendant a defence to counterclaim.

(3)Where a plaintiff serves both a reply and a defence to counterclaim on any defendant, he must include them in the same document.

(4)A reply to any defence must be served by the plaintiff before the expiration of 14 days after the service on him of that defence, and a defence to counterclaim must be served by the plaintiff before the expiration of 14 days after the service on him of the counterclaim to which it relates.

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

No pleading subsequent to a reply or a defence to counterclaim shall be served except with the leave of the Court.

7.Pleadings, formal requirements of

(1)Every pleading in an action must bear on its face — 

(a)the year in which the writ in the action was issued and the number of the action; and

(b)the title of the action; and

(c)the description of the pleading; and

(d)the date on which it was filed.

(2)Every pleading must, if necessary, be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph.

(3)Dates, sums and other numbers must be expressed in a pleading in figures and not in words.

(4)Every pleading of a party must be indorsed — 

(a)where the party sues or defends in person, with his name and address for service;

(b)in any other case, with the name or firm and address for service of the solicitor by whom it was filed.

(5)Every pleading of a party must be signed by counsel, if settled by him, and, if not, by the party’s solicitor or by the party, if he sues or defends in person.

(5A)It shall be a sufficient compliance with subrule (5) if the pleading is signed by a solicitor who — 

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

(b)has settled the pleading; and

(c)is authorised to sign the pleading on his principal’s behalf; and

(d)adds his own signature after the name of his firm.

(6)The date of service of a pleading must be stated on every copy which is served.

[Rule 7 amended: Gazette 15 Jun 1973 p. 2248; 28 Jun 2011 p. 2552; 27 Feb 2018 p. 558.]

8.Facts, not evidence, to be pleaded

(1)Subject to the provisions of this rule, and rules 11, 12 and 13 every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.

(2)Without prejudice to subrule (1), the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material.

(3)A party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleading.

(4)A statement that a thing has been done or that an event has occurred, being a thing or event the doing or occurrence of which, as the case may be, constitutes a condition precedent necessary for the case of a party is to be implied in his pleading.

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

9.Matters which must be specifically pleaded

(1)A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality — 

(a)which he alleges makes any claim or defence of the opposite party not maintainable; or

(b)which, if not specifically pleaded, might take the opposite party by surprise; or

(c)which raises issues of fact not arising out of the preceding pleading.

(2)Without prejudice to subrule (1), a defendant to an action for possession of land must plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient.

(3)A claim for exemplary damages or a claim for aggravated damages must be specifically pleaded together with the facts on which the party pleading relies.

(4)Where the plaintiff intends to claim interest, he must claim it specifically; and the statement of claim must — 

(a)identify that part of the claim or the components of the damages to which the claim for interest relates;

(b)where the claim for interest is founded on a contract, contain a statement in summary form of the material facts relied on;

(c)where the claim for interest is pursuant to a statute — 

(i)identify the statutory provision; and

(ii)specify the rate claimed; and

(iii)state the date or dates from which interest is claimed.

[Rule 9 amended: Gazette 3 Oct 1975 p. 3769; 31 Mar 1983 p. 1090; 28 Jun 2011 p. 2552.]

10.Matter may be pleaded whenever arising

Subject to rules 8(1) and 11, a party may in any pleading plead any matter which has arisen at any time, whether before or since the issue of the writ.

11.Party’s pleadings to be consistent

(1)A party shall not in any pleading make any allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his.

(2)Subrule (1) shall not be taken as prejudicing the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative.

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

12.Points of law may be pleaded

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

13.Particulars of claims etc.

(1)Subject to subrule (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words — 

(a)particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

(b)where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.

(2)Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed 3 folios, they must be set out in a separate document referred to in the pleading and the pleading must state whether the document has already been served and, if so, when, or is to be served with the pleading.

(3)The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just.

(4)Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of subrule (3), the Court may, on such terms as it thinks just, order that party to serve on any other party — 

(a)where he alleges knowledge, particulars of the facts on which he relies; and

(b)where he alleges notice, particulars of the notice.

(5)An order under this rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.

(6)An order under this rule shall not be made unless a written request for the particulars required by the applicant has been filed and served within 30 days of the service of the pleadings or such other time as the Court may allow.

(7)The party at whose instance particulars have been served under an order of the Court shall, unless the order otherwise provides, have the same length of time for pleading after the service of the particulars that he had at the return of the summons. Save as in this rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time.

[Rule 13 amended: Gazette 26 Aug 1994 p. 4410; 28 Jun 2011 p. 2552.]

13A.Particulars in defamation actions

(1)Where in an action for defamation the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of that sense.

(2)Where in an action for defamation the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.

(3)Where in an action for defamation the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice; but where the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.

(4)This rule applies in relation to a counterclaim for defamation as if the party making the counterclaim were the plaintiff and the party against whom it is made were the defendant.

[Rule 13A inserted: Gazette 23 Sep 1983 p. 3797; amended: Gazette 16 Aug 2017 p. 4411.]

14.Admissions, traverses etc.

(1)Subject to subrule (4), any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 15 operates as a denial of it.

(2)A traverse may be made either by a denial or by a statement of non‑admission.

(3)Subject to subrule (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement of non‑admission of them, is not a sufficient traverse of them.

(4)Any allegation that a party has suffered damage and any allegation as to the amount of damages is deemed to be traversed unless specifically admitted.

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

15.Denial by joinder of issue

(1)If there is no reply to a defence, there is an implied joinder of issue on that defence.

(2)Subject to subrule (3) — 

(a)there is at the close of pleadings an implied joinder of issue on the pleading last served; and

(b)a party may in his pleading expressly join issue on the next preceding pleading.

(3)There can be no joinder of issue, implied or express, on a statement of claim or counterclaim.

(4)A joinder of issue operates as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation.

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

16.Defence of tender not available without payment into court

Where in any action a defence of tender before action is pleaded, the defendant must pay into court in accordance with Order 24 the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until payment into court has been made.

17.Defence of set‑off

Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set‑off against the plaintiff’s claim, whether or not it is also added as a counterclaim.

18.Counterclaim and defence to counterclaim

Without prejudice to the general application of this Order to a counterclaim and a defence to counterclaim, or to any provision thereof which applies to either of those pleadings specifically —

(a)rule 2(1) shall apply to a counterclaim as if the counterclaim were a statement of claim and the defendant making it a plaintiff;

(b)rules 9(2), 16, and 17 shall, with the necessary modifications apply to a defence to counterclaim as they apply to a defence.

19.Striking out pleadings etc.

(1)The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that — 

(a)it discloses no reasonable cause of action or defence, as the case may be; or

(b)it is scandalous, frivolous or vexatious; or

(c)it may prejudice, embarrass or delay the fair trial of the action; or

(d)it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2)No evidence shall be admissible on an application under subrule (1)(a).

(3)An application for an order under subrule (1) must — 

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

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

(i)the paragraph of subrule (1) under which the application is made; and

(ii)those parts of the pleadings which the applicant seeks to have struck out;

and

(c)where the application is to strike out the entire pleading, clearly indicate that intention in the application.

[(4)deleted]

(5)Unless special circumstances are shown, an application to amend pleadings consequent upon an order striking the pleadings out, in whole or in part, shall be accompanied by a minute of the proposed amendment.

[Rule 19 amended: Gazette 26 Aug 1994 p. 4410‑11; 24 Jan 1995 p. 270; 9 Aug 1996 p. 3949; 28 Jun 2011 p. 2552 and 2553; 24 May 2017 p. 2607.]

20.Close of pleadings

(1)Subject to subrule (2) the pleadings in an action are deemed to be closed — 

(a)at the expiration of 14 days after service of the reply or, if there is no reply but only a defence to counterclaim, after service of the defence to counterclaim; or

(b)if neither a reply nor a defence to counterclaim is served, at the expiration of 14 days after service of the defence.

(2)Where the time for the service of a reply or defence to counterclaim or both is extended either by order of the Court or by written consent of the parties, or by the operation of rule 13(7), the pleadings are deemed to be closed at the expiration of 14 days after such extended time has expired.

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

21.Trial without pleadings

(1)Where in an action to which this rule applies any defendant has entered an appearance in the action, the plaintiff or that defendant may apply to the Court by summons for an order that the action shall be tried without pleadings or further pleadings, as the case may be.

(2)If, on the hearing of an application under this rule, the Court is satisfied that the issues in dispute between the parties can be defined without pleadings or further pleadings, or that for any other reason the action can properly be tried without pleadings or further pleadings, as the case may be, the Court shall order the action to be so tried, and may direct the parties to prepare a statement of the issues in dispute or, if the parties are unable to agree to such a statement, may settle the statement itself.

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

(4)This rule applies to every action begun by writ other than one which includes — 

(a)a claim by the plaintiff for defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or

(b)a claim by the plaintiff based on an allegation of fraud.

[Rule 21 amended: Gazette 28 Jul 2010 p. 3466; 16 Aug 2017 p. 4411.]

22.Preparation of issues

Where in any cause or matter it appears to the Court that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and such issues shall, if the parties differ, be settled by the Court.

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

(1)In an action for damage by collision between vessels, unless the Court otherwise orders, the plaintiff or his solicitor must, within 7 days after the commencement of the action, and the defendant or his solicitor must, within 7 days after appearance and before any pleading is delivered, respectively file a document to be called a Preliminary Act.

(2)Every Preliminary Act shall be sealed up and, unless the Court otherwise orders, shall not be opened until the pleadings are closed and a consent signed by the respective parties or their solicitors that the Preliminary Acts shall be opened is filed.

(3)The Preliminary Act shall contain a statement of the following particulars — 

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

(b)the date and time of the collision;

(c)the place of the collision;

(d)the direction and force of the wind;

(e)the state of the weather;

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

(g)the course and speed of the vessel when the other was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier;

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

(i)the distance and bearing of the other vessel if and when her echo was first observed by radar;

(j)the distance, bearing and approximate heading of the other vessel when first seen;

(k)what light or combination of lights (if any) of the other vessel was first seen;

(l)what other lights or combination of lights (if any) of the other vessel were subsequently seen before the collision, and when;

(m)what alterations (if any) were made to the course and speed of the vessel after the earlier of the 2 times referred to in article (vii) up to the time of the collision, and when, and what measures (if any), other than alterations of course or speed, were taken to avoid the collision, and when;

(n)the parts of each vessel which first came into contact and the approximate angle between the 2 vessels at the moment of contact;

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

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

(4)Where the Court orders the Preliminary Acts to be opened, the Court may further order the action to be tried without pleadings but, where the Court orders the action to be so tried, any party who intends to rely on the defence of compulsory pilotage must give notice of his intention to do so to the other parties within 7 days after the opening of the Preliminary Acts.

(5)Rule 1 shall not apply to an action in which Preliminary Acts are required but, unless the Court orders the action to be tried without pleadings, the plaintiff must serve a statement of claim on each defendant within 14 days after the latest date on which the Preliminary Act of any party to the action is filed.

[Rule 23 amended: Gazette 28 Jun 2011 p. 2553‑4; 27 Feb 2018 p. 558-9.]

24.Failure to file Preliminary Act

(1)Where in an action to which rule 23 applies, the plaintiff fails to file a Preliminary Act within the time prescribed for that purpose by that rule or by any order of the Court, any defendant who has filed such an Act may apply to the Court by summons for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it thinks just.

(2)Where in such an action, being an action in personam, a defendant fails to file a Preliminary Act within the period prescribed for that purpose by rule 23 or by any order of the Court, Order 22 rules 2 and 3 shall apply as if the defendant’s failure to file the Preliminary Act within that period were a failure by him to serve a defence on the plaintiff within the period fixed by or under these rules for service thereof, and the plaintiff may enter judgment against the defendant in accordance with the said rule 2 or the said rule 3, as the circumstances of the case require.

[Rule 24 amended: Gazette 27 Feb 2018 p. 559.]

Order 21 — Amendment

1.Amending writ without leave

(1)Subject to subrule (3), the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed by filing its amended writ before the closure.

[(2)deleted]

(3)This rule shall not apply in relation to an amendment which consists of — 

(a)the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued; or

(b)the addition or substitution of a new cause of action; or

(c)without prejudice to rule 3, an amendment of the statement of claim, if any, indorsed on the writ.

[Rule 1 amended: Gazette 28 Jul 2010 p. 3462; 28 Jun 2011 p. 2552.]

2.Amending memorandum of appearance

A defendant may not amend his memorandum of appearance without the leave of the Court.

3.Amending pleadings without leave

(1)A party may amend any of its pleadings, without the leave of the Court, by filing its amended pleading not later than 7 weeks before the date fixed for the start of the trial of the case.

(2)A party served with a pleading amended under subrule (1) may make any amendment needed to any of its pleadings as a consequence of the amended pleading, without the leave of the Court, by filing its amended pleading within 10 working days after the date on which it is served with the amended pleading.

(3)A party served with a pleading amended under subrule (1) or (2) may apply to the case manager for any amendment in the pleading to be struck out.

(4)A party’s application under subrule (3) must be made within 7 working days after the date on which the party is served with the amended pleading.

(5)If, on an application made under subrule (3), the case manager is satisfied that, had an application for leave to make the amendment in question been made under rule 5 at the date when the amended pleading was filed under this rule, leave to make the amendment or part of the amendment would have been refused, the manager must order the amendment or that part of it to be struck out.

(6)An order made on an application under this rule may be made on such terms as to costs as the case manager considers just.

[Rule 3 inserted: Gazette 28 Jul 2010 p. 3462-3.]

[4.Deleted: Gazette 28 Jul 2010 p. 3462.]

5.Amending writ or pleading with leave

(1)This rule is subject to —

(a)Order 18 rules 6, 7 and 8; and

(b)Order 20 rule 19(2) to (5).

(2)The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff’s writ, or any party to amend that party’s pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.

[Rule 5 inserted: Gazette 27 Feb 2018 p. 559-60.]

6.Amending other originating process

Rule 5 shall have effect in relation to an originating summons, and an originating motion as it has effect in relation to a writ.

7.Amending other documents

(1)For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2)This rule shall not have effect in relation to a judgment or order.

8.Failure to amend after order

Where the Court makes an order under this Order giving any party leave to amend a writ, pleading or other document, then, if that party does not file the document, amended in accordance with the order, before the expiration of the period specified for that purpose in the order or, if no period is so specified, of a period of 14 days after the order was made, the order shall cease to have effect, without prejudice, however, to the power of the Court to extend the period.

[Rule 8 amended: Gazette 28 Jul 2010 p. 3463.]

9.How amendments to be made

(1)Where the amendments authorised under any rule of this Order to be made in a writ, pleading or other document are so numerous or of such nature or length that to make written alterations of the document so as to give effect to them would make it difficult or inconvenient to read, a fresh document, amended as so authorised and showing its original contents with the amendments written in any manner that will distinguish the alterations from the original document or from any previous amendment, must be prepared, and in the case of a writ or originating summons re‑issued.

(2)Except as provided in subrule (1), and subject to any direction given under rule 5 or 7, the amendments so authorised shall be effected by writing the necessary alterations on the writ, pleading or other document in any manner that will distinguish the alterations from the original document or from any previous amendment, and in the case of a writ or originating summons, by filing a copy and the request that it be re‑sealed.

(3)A writ, pleading or other document which has been amended under this Order must be indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the judge or master by whom the order (if any) authorising the amendment was made, and the date thereof, or if no such order was made, the number of the rule of this Order in pursuance of which the amendment was made.

[Rule 9 amended: Gazette 24 Jan 1995 p. 272; 28 Jul 2010 p. 3463; 28 Jun 2011 p. 2552; 27 Feb 2018 p. 560.]

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

Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.

11.Service of amended documents

An amended writ, pleading or other document that is filed under this Order must be served on each other party within one working day after it is filed unless the Court orders otherwise.

[Rule 11 inserted: Gazette 28 Jul 2010 p. 3463-4.]

[Order 22 (r. 1-10) deleted: Gazette 16 Nov 2016 p. 5199.]

Order 23 — Discontinuance

1.Withdrawing appearance

A party who has entered an appearance in an action may withdraw the appearance at any time with the leave of the Court.

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

(1)The plaintiff may, at any time before receipt of the defendant’s defence, or after the receipt thereof before taking any other step in the action, by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant’s costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.

(2)The costs referred to in subrule (1) shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.

(3)Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court, but the Court may before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out.

(4)The Court may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence or counterclaim, or any part thereof, without such leave.

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

3.Costs

Any defendant may enter judgment for the costs of the action, if it is wholly discontinued against him, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued, in case such respective costs are not paid within 4 days after taxation.

4.Subsequent action stayed pending payment

If any subsequent action shall be brought before payment of the costs of a discontinued action, for the same, or substantially the same, cause of action, the Court may, if it thinks fit, order a stay of such subsequent action, until such costs shall have been paid.

5.Withdrawal of summons

A party who has taken out a summons in a cause or matter may not withdraw it except by leave of the Court.

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

[1‑8.Deleted: Gazette 5 Apr 1991 p. 1398.]

9.In certain cases no payment out without order

(1)Subject to subrule (2) money paid into court under an order of the Court, or certificate of a master or a registrar, shall not be paid out of court except in pursuance of an order of the Court.

(2)Unless the Court otherwise orders, a party who has paid money into court in pursuance of an order made under Order 14 — 

(a)may by notice to the other party appropriate the whole or any part of the money and any additional payment, if necessary, to any particular claim made in the statement of claim or counterclaim, as the case may be, and specified in the notice; or

(b)if he makes a plea of tender, may by his pleading appropriate the whole or any part of the money as payment into court of the money alleged to have been tendered; and money appropriated in accordance with this rule shall be deemed to be money paid into court under rule 1 or money paid into court with a plea of tender, as the case may be, and this Order shall apply accordingly.

[Rule 9 amended: Gazette 14 Dec 1979 p. 3869; 30 Nov 1984 p. 3951; 28 Jun 2011 p. 2552.]

[10.Deleted: Gazette 5 Apr 1991 p. 1398.]

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

Where the estate of a deceased person who has died intestate is entitled to a fund or to a share of a fund in court, not exceeding $7 500 and it is proved to the satisfaction of the Court — 

(a)that no administration to such deceased person’s estate has been taken out; and

(b)that his assets do not exceed the value of $7 500 including the amount of the fund or share to which the estate of such deceased person is entitled,

the Court may direct that such fund or share of a fund shall be paid, transferred or delivered to the person, who being the widower, widow, de facto partner of the deceased (immediately before the death), child, parent, brother or sister of the deceased would be entitled to take out administration.

[Rule 11 amended: Gazette 30 Nov 1984 p. 3953; 30 Jun 2003 p. 2631.]

12.Regulations (Sch. 3)

The manner of payment into and out of court and the manner in which money in court shall be dealt with shall be subject to the regulations contained in Schedule 3.

[Rule 12 amended: Gazette 28 Jun 2011 p. 2554.]

Order 24A — Offer of compromise

[Heading inserted: Gazette 5 Apr 1991 p. 1398.]

1.Parties entitled to make offer

In any proceedings the plaintiff or the defendant may make to the other an offer to compromise any claim in the proceedings on the terms specified in the notice of offer.

[Rule 1 inserted: Gazette 4 Sep 2015 p. 3696.]

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

Where a party makes a claim by way of counterclaim or third party notice, this Order applies in relation to the proceeding on that claim as if —

(a)the party making the claim were the plaintiff; and

(b)the party against whom the claim is made were the defendant.

[Rule 2 inserted: Gazette 4 Sep 2015 p. 3696.]

3A.How to make offer

(1)An offer of compromise is made to a party under this Order by serving a notice of the offer on the party.

(2)A notice of offer is to —

(a)be in writing; and

(b)bear a statement to the effect that the offer is made under this Order.

[Rule 3A inserted: Gazette 4 Sep 2015 p. 3696‑7.]

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

(1)An offer may be made at any time before the time prescribed by subrule (8) in respect of the claim to which it relates.

(2)A party may make more than one offer.

(3)An offer may be expressed to be limited as to the time it is open to be accepted but the time expressed shall not be less than 28 days after it is made.

(4)An offeree shall, within 3 days after service, serve a written acknowledgment of receipt on the offeror.

(5)An offeree may accept the offer by serving notice of acceptance in writing on the offeror before — 

(a)the expiration of the time specified in accordance with subrule (3) or, if no time is specified, the expiration of 28 days after the offer is made; or

(b)the time prescribed by subrule (8) in respect of the claim to which the offer relates,

whichever is sooner.

(6)An offer shall not be withdrawn during the time it is open to be accepted, unless the Court otherwise orders.

(7)An offer is open to be accepted within the period referred to in subrule (5) notwithstanding that during that period the party to whom the offer (the first offer) is made makes an offer (the second offer) to the party who made the first offer whether or not the second offer is made in accordance with this Order.

(8)The time prescribed for the purposes of subrules (1) and (5) is — 

(a)where the trial is before a jury — after the judge begins to sum up to the jury; or

(b)in any other case — after the judge or master gives his decision or begins to give his reasons for decision on a judgment (except an interlocutory judgment).

(9)Where an offer is accepted under this rule, any party to the compromise may apply to the Court for such judgment or order as he may be entitled to and on the hearing of the application the Court shall give such judgment or make such order as it thinks fit.

[Rule 3 inserted: Gazette 5 Apr 1991 p. 1399; amended: Gazette 28 Feb 1992 p. 995; 30 Oct 1992 p. 5310; 28 Jun 2011 p. 2552‑3.]

4.Time for payment of sum offered

An offer to pay a sum of money to a plaintiff shall, unless the notice of offer otherwise provides, be taken to be an offer to pay that sum within 28 days after acceptance of the offer.

[Rule 4 inserted: Gazette 5 Apr 1991 p. 1399.]

5.Withdrawing acceptance of offer

(1)A party who accepts an offer may, by serving a notice of withdrawal on the offeror, withdraw the acceptance — 

(a)where the offer provides for payment of a sum of money and the sum is not paid into Court within 28 days after acceptance of the offer; or

(b)where the Court gives leave so to do.

(2)On withdrawal of an acceptance all steps in the proceedings taken in consequence of the acceptance shall have such effect only as the Court may direct.

(3)On withdrawal of an acceptance or on the motion for leave to withdraw an acceptance, the Court may — 

(a)give directions under subrule (2); and

(b)give directions for restoring the parties as nearly as may be to their positions at the time of the acceptance; and

(c)give directions for the further conduct of the proceedings.

[Rule 5 inserted: Gazette 5 Apr 1991 p. 1399; amended: Gazette 28 Jun 2011 p. 2552.]

6.Offer without prejudice

An offer made in accordance with this Order shall be taken to have been made without prejudice, unless the notice of offer otherwise provides.

[Rule 6 inserted: Gazette 5 Apr 1991 p. 1399.]

7.Disclosure of offer to Court

(1)No statement of the fact that an offer has been made shall be contained in any pleading or affidavit.

(2)Where an offer has not been accepted, then, except as provided by rule 10(8), no communication with respect to the offer shall be made to the Court at the trial until after all questions of liability and the relief to be granted have been determined.

(3)This rule shall not apply where a notice of offer provides that the offer is not made without prejudice.

[Rule 7 inserted: Gazette 5 Apr 1991 p. 1399‑400.]

8.Failure to comply with accepted offer

(1)Where a party to an accepted offer fails to comply with the terms of the offer, then unless for special cause the Court otherwise orders, the other party — 

(a)shall be entitled to an order — 

(i)where the party in default is the plaintiff, that the proceedings be dismissed; and

(ii)where the party in default is the defendant, that the defence be struck out,

and in either case to judgment accordingly; or

(b)may apply to the Court for such judgment or order as he may be entitled to and on the hearing of the application the Court shall give such judgment or make such order as it thinks fit.

(2)Where a party to an accepted offer fails to comply with the terms of the offer, and another party in the proceedings has made a claim which is not the subject of the accepted offer, the Court may make such order or give such judgment under subrule (1), and make such order that the proceeding on that other party’s claim be continued, as it thinks fit.

[Rule 8 inserted: Gazette 5 Apr 1991 p. 1400; amended: Gazette 28 Feb 1992 p. 995; 28 Jun 2011 p. 2552; 4 Sep 2015 p. 3697.]

9.Multiple defendants

Where 2 or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a debt or damages and rights of contribution or indemnity appear to exist between the defendants, rule 8 shall not apply to an offer unless — 

(a)in the case of an offer made by the plaintiff — the offer is made to all defendants, and is an offer to compromise the claim against all of them;

(b)in the case of an offer made to the plaintiff — 

(i)the offer is to compromise the claim against all defendants; and

(ii)where the offer is made by 2 or more defendants — by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the plaintiff for the whole amount of the offer.

[Rule 9 inserted: Gazette 5 Apr 1991 p. 1400.]

10.Costs

(1)Upon the acceptance of an offer of compromise in accordance with rule 3(5), the plaintiff may, unless the Court otherwise orders, tax his costs in respect of the claim against the defendant up to and including the day the offer was accepted and, if the costs are not paid within 4 days after the signing of a certificate of the taxation, enter judgment against that defendant for the taxed costs.

(2)If a notice of offer contains a term which purports to negative or limit the operation of subrule (1), that term shall be of no effect for any purpose under this Order.

(3)Subrules (4) and (5) apply to an offer which has not been accepted in the time prescribed by rule 3(5) if the Court is satisfied by the party who made the offer that the party was at all material times willing and able to comply with the terms of the offer.

(4)Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, in addition to his costs incurred before that date, all such costs to be taxed on a party and party basis, except as provided in subrule (5A).

[(4a)deleted]

(5A)If the Court is satisfied that the failure by the defendant to accept the offer made by the plaintiff was unreasonable, the plaintiff’s costs from the date on which the offer was made are to be taxed on an indemnity basis, unless the interests of justice require otherwise.

(5)Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim up to and including the day the offer was made, taxed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for his costs in respect of the claim thereafter, taxed on a party and party basis, except as provided in subrule (7A).

(6)For the purpose of subrule (5), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the Court otherwise orders, the plaintiff shall be entitled to his costs in respect of the claim up to 11 a.m. on the day following the day on which the offer was made, taxed on a party and party basis, and the defendant shall be entitled to his costs in respect of the claim thereafter, taxed on a party and party basis, except as provided in subrule (7A).

(7A)If the Court is satisfied that the failure by the plaintiff to accept the offer made by the defendant was unreasonable, the defendant’s costs are to be taxed on an indemnity basis, unless the interests of justice require otherwise.

(7)Where a plaintiff obtains judgment for the payment of a debt or damages and — 

(a)the amount for which judgment is given includes interest or damages in the nature of interest; or

(b)by or under any Act the Court awards the plaintiff interest or damages in the nature of interest in respect of the amount,

then, for the purpose of determining the consequences as to costs referred to in subrules (4) and (5), the Court shall disregard so much of the interest as relates to the period after the day the offer was made.

(8)For the purpose of subrule (7), the Court may be informed of the fact that the offer was made, and of the date on which it was made, but shall not be informed of its terms.

[(9)deleted]

[Rule 10 inserted: Gazette 5 Apr 1991 p. 1400‑1; amended: Gazette 28 Feb 1992 p. 996; 21 Feb 2007 p. 536; 28 Jun 2011 p. 2552‑3; 4 Sep 2015 p. 3697‑8.]

Order 25 — Security for costs

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

The Court may order security for costs to be given by a plaintiff, but no order shall be made merely on account of the poverty of the plaintiff or the likely inability of the plaintiff to pay any costs which may be awarded against him.

2.Grounds for ordering security for costs

Without limiting the generality of rule 1 the Court may order security for costs to be furnished where the plaintiff — 

(a)is ordinarily resident out of the jurisdiction, notwithstanding that he may be temporarily within the jurisdiction;

(b)is about to depart from the jurisdiction;

(c)enjoys within the jurisdiction some privilege which renders him immune, wholly or partially, from the normal processes of execution;

(d)is an undischarged bankrupt or a person who has suspended, or given notice of suspension of, his debts;

(e)is a company in liquidation or under official management, or a company in respect of which a receiver of its property has been appointed;

(f)is a relator suing for the enforcement or declaration of some public right or to have some public trust carried out or some charitable scheme settled;

(g)is in default in respect of any costs ordered to be paid by him in any proceedings previously brought by him against the same defendant or another defendant for substantially the same cause of action or in relation to substantially the same subject matter;

(h)is a person who has in the past vexatiously brought litigation against the same defendant or against any other defendant;

(i)is suing the sheriff in respect of anything done or omitted to be done by the sheriff or his officers in the execution of any judgment of the Court.

[Rule 2 amended: Gazette 28 Jun 2011 p. 2554.]

3.Court has discretion

The granting of security shall be in the discretion of the Court, and in determining whether an order should be made the Court shall take into consideration — 

(a)the prima facie merits of the claim;

(b)what property within the jurisdiction may be available to satisfy any order for costs against the plaintiff;

(c)whether the normal processes of the Court would be available within the jurisdiction for enforcement of any order for costs made against the plaintiff.

4.Term used: plaintiff

In this Order the term plaintiff shall include a defendant counterclaiming in respect of a claim not arising out of the claim made against him.

5.Manner of giving security

In fixing security the Court shall direct the form and manner in which the security is to be given and may from time to time vary the amount and form of the security.

6.Action may be stayed

Where security is ordered the action or other proceedings shall be stayed until the security is furnished, unless the Court otherwise orders.

7.Payment out

Where money has been paid into court as security for costs and the action has been finally disposed of, the amount of the security shall be paid out to the party for whose security it was furnished to the extent pro tanto that costs are due from the securer to such party, and the Principal Registrar shall pay out the security accordingly unless the Court has otherwise ordered, and the balance (if any) shall be refunded to the securer without the necessity for any special order.

[Rule 7 amended: Gazette 14 Dec 1979 p. 3869.]

8.Saving

This Order is without prejudice to the provisions of any Act which empowers the Court to require security to be given for the costs of any proceedings.

Order 26 — Discovery and inspection

1A.Terms used

For the purposes of this Order — 

document means any record of information and includes — 

(a)any disc, tape, sound‑track or other device in which sounds or other means of transmitting data (not being visual images); and

(b)any film, negative, disc, tape or other device in which one or more visual images,

are embodied so as to be capable, with or without the aid of some other device, of being reproduced therefrom;

inspection, in relation to a document which is not in writing or otherwise capable of being understood by visual means alone, includes the right to require the party making discovery to supply a copy of the document in a form in which it is in writing or otherwise capable of being understood by visual means alone.

[Rule 1A inserted: Gazette 5 Jun 1992 p. 2280‑1.]

1B.Documents not wholly discoverable

(1)If under this Order a party in a cause or matter is required to give discovery of a document —

(a)the party must discover the document even if it contains —

(i)information that is not related to a matter in question in the cause or matter; or

(ii)information that the party objects to producing,

as well as information relating to a matter in question in the cause or matter that the party may be required to produce; but

(b)if the party has possession, custody or power of the document, the party may edit the document to hide the information referred to in paragraph (a)(i) and (ii).

(2)If a party edits a document under subrule (1), the party must do the following —

(a)in Part 1B of its list of documents (Form No. 17) —

(i)list the document; and

(ii)identify the document as one that contains hidden information; and

(iii)state why the information is hidden; and

(iv)if the party objects to producing any of the hidden information, state the grounds for objecting;

and

(b)modify Form No. 17 for the purposes of complying with paragraph (a); and

(c)if an affidavit verifying the list of documents is required, modify Form No. 18 for the purposes of complying with paragraph (a).

(3)If a party edits a document under subrule (1), the party is not required —

(a)to produce the hidden information to another party; or

(b)to allow another party to inspect or copy the hidden information,

unless the Court orders otherwise.

[Rule 1B inserted: Gazette 28 Jul 2010 p. 3469-70.]

1.Discovery without order

(1)Any party may give notice in writing to any other party in a cause or matter requiring him to give discovery of all documents which are or have been in his possession, custody or power relating to any matter in question therein.

(2)Where the cause or matter has been entered for trial a notice of the kind mentioned in subrule (1) shall not be given without the leave of the Court.

(3)The statements in the Form No. 17 (list of documents) filed by a party giving discovery of documents must —

(a)be verified by an affidavit of a person listed in rule 4(4); or

(b)if the party requiring discovery, in its notice given under subrule (1), so consents, be certified as correct by a person listed in rule 4(4) or the party’s practitioner.

[Rule 1 amended: Gazette 28 Oct 1996 p. 5675; 28 Jul 2010 p. 3470; 28 Jun 2011 p. 2552.]

2.Continuing obligation to give discovery

(1)A party that has been requested under rule 1 to give discovery shall, subject to any order made under rule 7, be under a continuing obligation until the conclusion of the trial to give discovery of any document relevant to any matter in question and not already discovered by that party.

(2)A party that has been ordered under rule 7 to give discovery shall, subject to the order, be under a continuing obligation until the conclusion of the trial to give discovery of any document to which the order relates and not already discovered by that party.

(3)Discovery under subrule (1) or (2) shall be given in accordance with subrules (4) and (5).

(4)A party shall give discovery to another party forthwith after the party becomes aware of a discoverable document unless the document came into existence after discovery was given under rule 1 or under an order made under rule 7 and — 

(a)is a communication between 2 or more of the parties or their solicitors; or

(b)is privileged from production.

(5)At least 21 days before the trial a party shall give discovery of any document that has not already been discovered by that party, including documents referred to in subrule (4)(a) and (b).

(6)Discovery under this rule shall be given by filing and serving on the other parties a supplementary list in accordance with rule 4 showing the relevant documents together with a verifying affidavit.

[Rule 2 inserted: Gazette 28 Oct 1996 p. 5675‑6; amended: Gazette 28 Jun 2011 p. 2552‑3.]

[2A.Deleted: Gazette 28 Oct 1996 p. 5675.]

3.Determination of issue relevant to right to discovery

If the Court is satisfied that the right to discovery or inspection of documents depends on the determination of any issue or question in the cause or matter or that for any other reason it is desirable that any issue or question in dispute should be determined before deciding such right the Court may order that the issue or question be determined first and may reserve an application under this Order for further consideration.

[Rule 3 amended: Gazette 28 Oct 1996 p. 5676.]

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

(1)The list of documents made in compliance with rule 1 or with an order under rule 7 must be in Form No. 17, and must enumerate the documents in a convenient order and as shortly as possible, but describing each of them or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable it to be identified, and must be filed within 10 days after the service of the requisition, or within the time directed by the order.

(2)If it is claimed that any documents are privileged from production, the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege.

(3)An affidavit verifying a list of documents must be in Form No. 18.

(4)Any list of documents or affidavit verifying such list may be made — 

(a)by the party;

(b)where the party is the State or an officer of the State sued or suing in his official capacity — by an officer of the State;

(c)where the party is a body corporate or a body of persons empowered by law to sue or be sued whether in its own name or in the name of any officer or other person — by a member or officer of the corporation or body,

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

[Rule 4 amended: Gazette 30 Nov 1984 p. 3953; 28 Oct 1996 p. 5676; 19 Apr 2005 p. 1298.]

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

(1)Any defendant who has pleaded in an action shall be entitled to have a copy of any list of documents served under rule 1, 2 or 7 on the plaintiff by any other defendant to the action; and a plaintiff against whom a counterclaim is made in an action begun by writ shall be entitled to have a copy of any list of documents served under any of those rules on the party making the counterclaim by any other defendant to the counterclaim.

(2)On request made by a party entitled to a copy of a list of documents, the party required by subrule (1) to supply the same must supply it free of charge.

(3)In this rule list of documents includes an affidavit verifying a list of documents.

[Rule 5 amended: Gazette 28 Oct 1996 p. 5676; 28 Jun 2011 p. 2552.]

6.Order for information as to particular documents

(1)Subject to rule 7 the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document specified or described is, or has at any time been, in his possession custody or power, and if not then in his possession custody or power when he parted with it and what has become of it.

(2)An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 1 or rule 7.

(3)An application under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document or class of document specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.

[Rule 6 amended: Gazette 28 Oct 1996 p. 5676.]

7.Orders as to discovery

(1)An application for an order under this rule may be made at any time by — 

(a)a party whose request under rule 1 for discovery has not been satisfied; or

(b)a party who has been requested under rule 1 to give discovery, whether or not the party has complied with the request.

(2)An affidavit in support of the application is not necessary.

(3)On an application, or at any time of its own motion in any proceedings, the Court, having regard to Order 1 rule 4B, may — 

(a)order any or all of the parties to give discovery at that stage or at some specified future stage of the action;

(b)as to the documents to be discovered by any party — 

(i)order that discovery be given of only those specified documents or specified classes of document;

(ii)order that discovery be given of only those documents that are directly relevant to any specified matter in question or to all matters in question;

(iii)order that discovery be given of all documents relating to any specified matter in question or to all matters in question;

(c)make orders as to which parties are to be given discovery by any specified party;

(d)order that any or all of the parties not give discovery at that stage of the action, or at all;

(e)order any or all parties to make, file and serve an affidavit verifying the party’s list of documents discovered.

(4)For the purposes of this rule if a party is ordered to give discovery, the party shall, subject to the order, make and serve, a list of the documents that are or have been in the party’s possession, custody or power.

[Rule 7 inserted: Gazette 28 Oct 1996 p. 5677‑8.]

8.Inspection of documents in list

(1)A party who has served a list of documents on any other party in compliance with rule 1 or with an order under rule 7 must allow the other party to inspect the documents mentioned in the list, other than any which he objects to produce, and must when serving the list on the other party also serve on him a notice stating a time within 7 days after the service thereof at which the said documents may be inspected at the place specified in the notice.

(2)Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for inspection by the party giving the notice.

(3)The party on whom a notice is served under subrule (2) must within 4 days after service of the notice serve on the party giving the notice a notice stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce, may be inspected at the place specified in the notice, and stating which, if any, of the documents he objects to produce and the grounds of his objection.

(4)Subject to rule 9, inspection under this rule shall be made at the office of the solicitor for the party producing the documents or if the party appears in person at a place that is reasonable for the purpose or in the case of bankers’ books or other books of account or books in constant use for the purpose of any trade or business, at their usual place of custody.

(5)The party making the inspection shall be entitled to make copies of any documents produced for inspection under this rule.

[Rule 8 amended: Gazette 7 Dec 1973 p. 4489; 28 Oct 1996 p. 5678; 21 Feb 2007 p. 536; 28 Jun 2011 p. 2552.]

8A.Procedure on discovery

(1)Documents delivered or produced under these rules are — 

(a)to be — 

(i)in bundles, files, folders or receptacles; and either

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

(iii)in an order or sequence,

making the documents readily accessible to and capable of convenient inspection by the party to whom they are delivered or produced; and

(b)to be so identified or indexed by number, description or otherwise as to enable particular documents to be readily retrieved on later occasions.

(2)The party producing the documents must provide facilities for inspection and copying of the documents and make available a person able to — 

(a)explain the arrangement used; and

(b)assist in locating and identifying particular documents or classes of documents.

(3)An existing arrangement of documents already in use by a party — 

(a)is not to be disturbed more than is necessary to achieve substantial compliance with subrule (1)(a); and

(b)if the party so requires, is not to be disturbed at all.

[Rule 8A inserted: Gazette 26 Aug 1994 p. 4411‑12; amended: Gazette 28 Jun 2011 p. 2552.]

9.Order for inspection of documents

(1)Where a party who is required by rule 8(1) to serve the notice therein mentioned, or who is served with a notice under rule 8(3) — 

(a)fails to serve the notice under rule 8(1) or as the case may be rule 8(3); or

(b)objects to produce any document for inspection; or

(c)offers inspection at a time or place which in the opinion of the Court is unreasonable for such purpose,

the Court may on the application of the party entitled to inspection make an order for production of the documents in question for inspection at such time and place, and in such manner as it thinks fit.

(2)Without prejudice to subrule (1) but subject to rule 11 the Court may on the application of any party to a cause or matter, order any other party to permit the party applying to inspect any documents in the possession, custody or power of that other party relating to any matter in question in the cause or matter.

(3)An application under subrule (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that such documents are in the possession, custody or power of the other party, and relate to a matter in question in the cause or matter.

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

10.Order for production to Court

At any stage of the proceedings in any cause or matter the Court may subject to rule 11 order any party to produce to the Court any document in his possession, custody or power, relating to any matter in question in the cause or matter and the Court may deal with the document when produced in such manner as it thinks fit.

11.Order for production etc. only if necessary

No order for production of any documents for inspection or to the Court shall be made unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

11A.Costs of preparing document to facilitate inspection

Unless the Court otherwise orders for the purposes of inspection the reasonable costs of supplying a copy of a document in a form in which it is capable of being understood by visual means alone shall be included in the party and party costs in the proceedings.

[Rule 11A inserted: Gazette 5 Jun 1992 p. 2281.]

12.Claim of privilege

(1)Where — 

(a)on an application for production of a document for inspection or to the Court; or

(b)in any list of documents supplied on discovery,

a party claims privilege the party requiring production or discovery may traverse the claims to privilege by adducing evidence either that the claim to privilege is unfounded or mistaken, but in the absence of any evidence to that effect the claim to privilege shall be sustained.

(2)In determining any objection on the ground of privilege to the production or discovery of any document or class of document the Court may inspect the document.

13.Inspection of copies of business books

Where inspection of any business books is applied for the Court may instead of ordering inspection of the original books order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations: Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.

[Rule 13 amended: Gazette 14 Dec 1979 p. 3870.]

14.Public interest immunity not affected

The provisions of this Order shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that the disclosure of it would be injurious to the public interest.

15.Non‑compliance with requirements for discovery etc.

(1)If any party who is required by any of the rules of this Order or by any order made thereunder, to give discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provisions of that rule or with that order, as the case may be, then without prejudice, in the case of a failure to comply with any such provision, to rules 7 and 9(1) the Court may make such order as it thinks just including in particular, an order that the action be dismissed or as the case may be, an order that the defence be struck out and judgment entered accordingly.

(2)If any party fails to comply with an order for discovery or production of documents then, without prejudice to subrule (1) he shall be liable to attachment.

(3)Service of an order for discovery or production of documents on the solicitor for the party against whom the order has been made shall be sufficient service to found an application to enforce the order, but it shall be an answer to the application if the party shows that he had no notice or knowledge of the order.

(4)A solicitor on whom an order against his client for discovery or production of documents is served under subrule (3) who fails without reasonable excuse to give notice thereof to his client shall be liable to attachment.

[Rule 15 amended: Gazette 28 Oct 1996 p. 5678; 21 Feb 2007 p. 536; 28 Jun 2011 p. 2552.]

[15A.Deleted: Gazette 28 Jul 2010 p. 3471.]

16A.Certificate by practitioner

The practitioner of a party giving discovery must —

(a)sign a certificate addressed to the Court that —

(i)states that the duty of discovery has been fully explained to the party; and

(ii)if the party is a corporation, identifies the individual, or individuals, to whom the duty was explained;

and

(b)file the certificate when or immediately after the party’s list of documents is served.

[Rule 16A inserted: Gazette 28 Jul 2010 p. 3471.]

16.Revocation and variation of orders

Any order which has been made under this Order, including an order made on appeal, may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in relation to which the original order was made.

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

[Heading inserted: Gazette 28 Oct 1996 p. 5678.]

1.Terms used

In this Order, unless the contrary intention appears — 

description, in relation to person who is or may be a potential party, includes the person’s name, sex, age, occupation, place of residence, place of business and whether the person is an individual, a body corporate or an unincorporated body of persons;

document has the same definition as in Order 26 rule 1A;

possession includes custody or power.

[Rule 1 inserted: Gazette 28 Oct 1996 p. 5678.]

2.Public interest immunity not affected

This Order does not affect any rule of law that authorises or requires the withholding of a document on the ground that its disclosure would be injurious to the public interest.

[Rule 2 inserted: Gazette 28 Oct 1996 p. 5679.]

3.Discovery etc. to identify a potential party

(1)This rule applies if a person who appears to have a cause of action against a person (the potential party) wants — 

(a)to commence proceedings against the potential party; or

(b)to take proceedings against the potential party in the course of an action to which the person is a party,

but the person, after reasonable enquiries, has not been able to ascertain a description of the potential party sufficient for the purposes of doing so.

(2)If there are reasonable grounds for believing that another person (the non‑party) had, has, or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party, the person may apply for an order under this rule.

(3)The application shall be supported by an affidavit and a copy of both shall be served on the non‑­party.

(4)On the application the Court may order the non‑party, and if the non‑party is a body corporate, a person having the management of the body to do either or both of the following:

(a)to give discovery to the applicant of all documents that are or have been in the non‑party’s possession relating to the description of the potential party;

(b)to personally attend the Court to be examined in relation to the description of the potential party.

(5)If the Court orders a person to personally attend the Court, it may order the person to produce to the Court any document or object in the non‑party’s possession that relates to the description of the potential party.

(6)The Court may direct that the examination of the person be by a registrar.

(7)A person required to personally attend the Court shall be entitled to the like conduct money and payment for expenses and loss of time as on an attendance at a trial in Court.

[Rule 3 inserted: Gazette 28 Oct 1996 p. 5679‑80.]

4.Discovery from potential party

(1)This rule applies if a person who may have a cause of action against a person whose description has been ascertained (the potential party) wants — 

(a)to commence proceedings against the potential party; or

(b)to take proceedings against the potential party in the course of an action to which the person is a party,

but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings.

(2)If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this rule.

(3)The application shall be supported by an affidavit and a copy of both shall be served on the potential party.

(4)On the application the Court may order the potential party to give discovery of all documents that are or have been in the potential party’s possession and that may assist the applicant in making the decision.

[Rule 4 inserted: Gazette 28 Oct 1996 p. 5680.]

5.Discovery from non‑party

(1)If there are reasonable grounds for believing that a person who is not party to an action (the non‑party) had, has, or is likely to have had or to have, possession of documents that relate to any matter in question in the action, a party to the action may apply for an order under this rule.

(2)The application shall be supported by an affidavit and a copy of both shall be served on the non‑party and the other parties to the action.

(3)On the application the Court may order the non‑party to give discovery of all documents that are or have been in the non‑party’s possession and that relate to any matter in question in the action.

[Rule 5 inserted: Gazette 28 Oct 1996 p. 5680‑1.]

6.Order 26 applies to discovery ordered under this Order

(1)A court making an order for discovery under this Order may exercise any of the powers in Order 26 rule 7(3).

(2)Order 26 applies in relation to any discovery that under this Order is ordered to be given as if it had been ordered under Order 26 rule 7.

[Rule 6 inserted: Gazette 28 Oct 1996 p. 5681.]

7.Costs

(1)An order made under this Order may be made on the condition that the applicant give security for the costs and expenses of the person against whom the order is made, both in respect of the application and of complying with the order and with this Order.

(2)On an application under this Order the Court may make orders as to the costs and expenses — 

(a)of any person in respect of the application; and

(b)of a person against whom an order is made in respect of complying with the order and with this Order.

[Rule 7 inserted: Gazette 28 Oct 1996 p. 5681.]

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

(1)This rule applies to these practitioners —

(a)the practitioner (if any) who drafts the list of documents, or the affidavit verifying the list, for a non‑party who has been ordered under rule 3 or 5 to give discovery;

(b)the practitioner (if any) who drafts the list of documents, or the affidavit verifying the list, for a potential party who has been ordered under rule 4 to give discovery.

(2)This rule does not limit the operation of rule 6(2).

(3)A practitioner to whom this rule applies must —

(a)sign a certificate addressed to the Court that —

(i)states that the duty of discovery has been fully explained to the non‑party or potential party (as the case requires); and

(ii)if that party is a corporation, identifies the individual, or individuals, to whom the duty was explained;

and

(b)file the certificate when or immediately after the list of documents is served.

[Rule 8 inserted: Gazette 28 Jul 2010 p. 3471-2.]

Order 27 — Interrogatories

1.Notice of and answers to interrogatories

(1)Subject to this rule any party may with the leave of the Court serve notice on any other party requiring him to answer specified interrogatories relating to any matter in question between the party interrogating and the party served.

(2)If the party interrogating so elects in the notice the answers may take the form of a statement signed by the person answering, but otherwise the answers to the interrogatories shall be by a statement verified by affidavit.

[(3)deleted]

(4)A party or person who wilfully makes a false statement in answer to an interrogatory shall be guilty of contempt of court and shall be punishable accordingly.

[Rule 1 amended: Gazette 24 Jan 1995 p. 270; 28 Oct 1996 p. 5681; 28 Jul 2010 p. 3472.]

2.Answers, time for and manner of giving

A party required under rule 1 to answer interrogatories shall answer the interrogatories by filing within 14 days of the day on which the interrogatories were served the statement referred to in rule 1(2) and the verifying affidavit, if required, and serving on the interrogating party within the same time a copy of the document, or, as the case may be of each such document filed.

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

Interrogatories served on 2 or more parties or which are required to be answered by an agent or servant of a party shall have a note at the end thereof stating which of such interrogatories each of such persons is required to answer.

4.Content of answers

The statement in answer to interrogatories required by or under this Order must deal with each interrogatory specifically, by answering its substance without evasion, or objecting to answer on one or more of the grounds specified in rule 5 and stating briefly the facts on which the objection is taken.

5.Grounds for objecting to answer

(1)A party may object in his statement in answer to interrogatories to answer any interrogatory on one or more of the following grounds — 

(a)that it is scandalous or irrelevant, not bona fide for the purpose of the proceeding, unreasonable, prolix, oppressive or unnecessary;

(b)that the matters inquired into are not sufficiently material at that stage;

(c)privilege;

(d)any other ground on which objection may be taken.

(2)Where on an application under rule 7 the Court decides that an objection by the party interrogated to answering an interrogatory is not sufficient or the party interrogated does not object to answering an interrogatory, that party shall not be entitled to object to answer that interrogatory in a statement in answer to interrogatories.

[Rule 5 amended: Gazette 15 Jun 1973 p. 2248.]

6.Answers, who can make

(1)A statement or an affidavit verifying a statement in answer to interrogatories may be made as follows — 

(a)by the party;