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, repeal and saving2

3.Certain proceedings excluded2

3A.Inherent powers not affected3

4.Definitions4

4A.Elimination of delays6

4B.System of case flow management7

4C.Parties to notify settlement7

5.Construction of references to Orders, Rules, etc.7

6.Forms8

7.Electronic documents and communications8

Order 2 — Effect of non‑compliance

1.Non‑compliance with Rules10

2.Application to set aside for irregularity10

Order 3 — Time

1.“Month” means calendar month12

2.Reckoning periods of time12

3.Period between 24 December and 15 January excluded from time for filing, etc., of pleading12

4.Time expires on day on which Central Office closed13

5.Extension, etc., of time13

6.Extension where security ordered13

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

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

1.Commencement of civil proceedings15

2.Applications in pending proceedings15

3.Right to sue in person15

Order 5 — Writs of summons

1.Form of writ16

2.Writs for service out of the State16

3.Place of trial to be shown16

4.Place of issue16

5.Preparation of writ16

6.Sealing of writ16

7.Copy to be left with officer16

8.Copy to be filed17

9.Writs for service out of the State17

10.All writs to be tested17

11.Time for appearance to be stated in writ17

Order 6 — Indorsement of claim: other indorsements

1.Indorsement of claim19

2.Actions for libel19

3.Indorsement of statement of claim19

4.Notice as to stay of proceedings19

5.Representative character20

6.Indorsement of claim for account20

7.Address where plaintiff sues by solicitor20

8.Where plaintiff sues in person21

9.Proceedings other than by writ21

10.Document not to be filed without address for service21

11.Address indorsed to be address for service until change notified21

Order 7 — Duration and renewal of writ: concurrent writs

1.Duration and renewal of writ22

2.Evidence of extension of validity of writ22

3.Concurrent writs23

4.Unserved writs may be struck out23

Order 8 — Disclosure by solicitors: change of solicitors

1.Solicitor to declare whether writ issued by his authority25

2.Change of solicitor25

3.Notice of change of agent26

4.Notice of appointment of solicitor26

5.Notice of intention to act in person26

6.Removal of solicitor from the record26

7.Withdrawal of a solicitor who has ceased to act for a party27

8.Effect of order28

9.Address for service of party whose solicitor is removed28

10.“Address for service”29

11.Solicitor not to act for adverse parties29

12.Practitioner or clerk not to be security29

Order 9 — Service of originating process: general provisions

1.General provisions30

2.Service of writ on agent of oversea principal30

3.Service of writ in pursuance of contract31

4.Service of writ in certain actions for possession of land32

5.Service of originating summons, petition and notice of motion32

Order 10 — Service out of the jurisdiction

1A.Application33

1.When service out of jurisdiction is permissible33

2.Service out of the jurisdiction in certain actions in contract35

3.Notice of writ35

4.Application for leave36

5.Time for appearance36

6.Service of notice36

7.Service of originating summons and other documents36

8.Saving of existing practice37

9.Service abroad through foreign governments, judicial authorities, and consuls37

10.Service abroad: general and saving provisions39

11.Undertaking to pay expenses of service40

Order 11 — Service of foreign process

1A.Application41

1.Definitions41

2.Service of foreign legal process41

3.Service under Convention42

4.Service to be through sheriff43

5.Consequential orders43

Order 11A — Service of foreign judicial process originating in a country that is a party to the Hague Convention

1.Definitions44

2.Application45

3.Request for service and accompanying documents46

4.Service46

5.Affidavit of service47

6.Certificate of service48

7.Application of Rules generally48

Order 11B — Service of judicial process in a country that is a party to the Hague Convention

1.Definitions49

2.Application49

3.Records50

4.Documents required to be filed50

5.Procedure on filing application requesting service etc.53

6.Procedure on receipt of certificate in respect of service53

7.Payment of costs54

8.Evidence of service54

9.Application of Rules generally55

Order 11C — Judgments in default of appearance where originating process is transmitted for service under the Hague Convention

1.Definitions56

2.Application56

3.Power to enter judgment in default of appearance where a certificate of service has been filed57

4.Filing of certificate of service deemed to be compliance with certain other Rules57

5.Power to enter judgment in default of appearance where a certificate of service has not been filed58

6.Interlocutory Orders58

7.Setting aside a judgment in default of appearance58

8.Application of Rules generally59

Order 12 — Appearance

1.Mode of entering appearance60

2.Memorandum of appearance60

3.Procedure on receipt of requisite documents61

4.Notice of appearance62

5.Late appearance62

6.Conditional appearance62

7.Setting aside service before appearance63

8.Person not named may defend for land63

9.Person appearing to be named as defendant63

10.Limited defence and notice thereof63

Order 13 — Default of appearance to writ

1.Affidavit of service64

2.Claim for liquidated demand64

3.Where liquidated demand judgment against several defendants64

4.Claim in detinue65

5.Claim for possession of land65

6.Mixed claims66

7.Claims for damages66

8.Other cases67

9.Reference to Court in case of doubt67

10.Setting aside judgment68

Order 14 — Summary judgment

1.Plaintiff’s application for summary judgment69

2.Application to be by summons69

3.Judgment may be given for plaintiff70

4.Leave to defend70

6.Summary judgment on counterclaim71

7.Directions71

8.Costs72

9.Right to proceed with residue of action or counterclaim72

10.Judgment for delivery of specific chattel72

11.Relief from forfeiture73

12.Setting aside judgment73

Order 16 — Summary judgment on application of defendant

1.Defendant may apply for summary judgment74

2.Plaintiff may show cause74

3.Directions75

4.Judgment may be set aside or varied75

Order 17 — Interpleader

1.Relief by way of interpleader76

2.Mode of application76

3.Time for application by defendant77

4.Stay of proceedings77

5.Order on summons77

6.Summary determination77

7.Where question of law only78

8.Claimant failing to appear etc.78

9.Power to order sale of goods78

10.Discovery, etc. and trial78

11.One order where several causes pending78

12.Claim etc. to goods taken in execution79

13.Withdrawal by sheriff79

14.Application by the sheriff79

15.Other powers of the Court80

Order 18 — Causes of action, counterclaims and parties

1.Joinder of causes of action81

2.Counterclaim against plaintiff81

3.Counterclaim against additional parties82

4.Joinder of parties83

5.Court may order separate trials, etc.84

6.Misjoinder and nonjoinder of parties84

7.Change of parties by reason of death, etc.85

8.Provisions consequential on making of order under Rule 6 or 786

9.Failure to proceed after death of party88

10.Actions for possession of land88

11.Relator actions89

12.Representative proceedings89

13.Representation of interested persons who cannot be ascertained, etc.90

14.Representation of beneficiaries by trustees, etc.92

15.Representation of deceased person interested in proceedings92

16.Declaratory judgment93

17.Conduct of proceedings93

Order 19 — Third party and similar proceedings

1.Third party notice94

2.Application for leave to issue third party notice95

3.Issue and service of, and entry of appearance to, third party notice95

4.Third party directions96

5.Default of third party, etc.97

6.Setting aside third party proceedings98

7.Judgment between defendant and third party98

8.Claims and issues between a defendant and some other party98

9.Claims by third and subsequent parties99

10.Offer of contribution100

11.Counterclaim by defendant100

12.Costs100

Order 20 — Pleadings

1.Service of Statement of Claim101

2.Statement of Claim101

3.Pleadings, etc., to be filed before service101

4.Service of defence102

5.Service of reply and defence to counterclaim102

6.Pleadings subsequent to reply103

7.Pleadings: formal requirements103

8.Facts, not evidence, to be pleaded104

9.Matters which must be specifically pleaded104

10.Matter may be pleaded whenever arising105

11.Departure106

12.Points of law may be pleaded106

13.Particulars of pleading106

13A.Particulars in defamation actions107

14.Admissions and denials108

15.Denial by joinder of issue109

16.Defence of tender109

17.Defence of set‑off110

18.Counterclaim and defence to counterclaim110

19.Striking out pleadings and indorsements110

20.Close of pleadings111

21.Trial without pleadings112

22.Preparation of issues113

23.Preliminary Act — collision between vessels113

24.Failure to lodge Preliminary Act115

Order 21 — Amendment

1.Amendment of writ without leave116

2.Amendment of appearance116

3.Amendment of pleadings without leave116

4.Application for disallowance of amendment made without leave117

5.Amendment of writ or pleading with leave118

6.Amendment of other originating process119

7.Amendment of other documents119

8.Failure to amend after order119

9.Mode of amendment120

10.Amendment of judgments and orders121

Order 22 — Default of pleadings

1.Default in service of statement of claim122

2.Default of defence: claim for liquidated demand122

3.Claim for unliquidated damages122

4.Claim in detinue123

5.Claim for possession of land123

6.Mixed claims124

7.Other claims124

8.Default of defence to counterclaim125

9.Reference to Court125

10.Setting aside judgment125

Order 23 — Discontinuance

1.Withdrawal of appearance126

2.Plaintiff may discontinue: defence may be withdrawn126

3.Costs126

4.Subsequent action stayed pending payment127

5.Withdrawal of summons127

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

9.In certain cases no payment out without order128

11.Amounts under $7 500 may be paid without administration128

12.Regulations129

Order 24A — Offer of compromise

1.Mode of making offer130

2.Application130

3.Time for making or accepting offer130

4.Time for payment131

5.Withdrawal of acceptance132

6.Offer without prejudice132

7.Disclosure of offer to Court132

8.Failure to comply with accepted offer133

9.Multiple defendants133

10.Costs134

Order 25 — Security for costs

1.Security generally137

2.Grounds for ordering137

3.Court has a discretion138

4.Definition138

5.Manner of giving security138

6.Action may be stayed138

7.Payment out139

8.Saving139

Order 26 — Discovery and inspection

1A.Interpretation140

1.Discovery without order140

2.Continuing obligation to give discovery141

3.Determination of issue before discovery142

4.Form of list and affidavit — by whom made142

5.Defendant entitled to copy of co‑defendant’s list143

6.Order for discovery of particular documents143

7.Orders as to discovery144

8.Inspection of documents in list145

8A.Procedure on discovery146

9.Order for inspection of documents147

10.Order for production to the Court148

11.Production only if necessary148

11A.Costs of preparation of document to facilitate inspection148

12.Claim of privilege148

13.Production of business books149

14.Where disclosure against public interest149

15.Non‑compliance with requirements for discovery, etc.149

15A.Certificate by solicitor150

16.Revocation and variation of orders150

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

1.Interpretation152

2.Public interest immunity not affected152

3.Discovery etc. to identify a potential party152

4.Discovery from a potential party153

5.Discovery from a non‑party154

6.Order 26 applies to discovery ordered under this Order154

7.Costs155

Order 27 — Interrogatories

1.Discovery by interrogatories156

2.Answers156

3.Note as to party required to answer156

4.Statement in answer157

5.Grounds for objection157

6.Statements, etc. — by whom made157

7.Order for answers or further answers158

8.Non‑compliance with order158

9.Use of answers in evidence159

10.Revocation and variation of orders159

Order 28 — Medical examination: Inspection of physical objects

1.Medical examination of parties160

2.Inspection of physical objects161

Order 29 — Case flow management powers of the Court

1.Interpretation162

2.Court may review any case162

3.Mediation conferences165

3A.Application of Rules 4 and 4A166

4.Compliance with standard times166

4A.Failure to comply with standard times deemed in certain circumstances168

5.Summons for directions169

6.Directions hearings169

Order 29A — Case management

Part 1 — Preliminary

1.Application171

2.Interpretation171

3.Case management directions172

4.Enforcement orders174

5.Inconsistencies with other Rules175

Part 2 — Case management conferences

6.Status conference175

7.Case evaluation conference176

8.Listing conference178

Part 3 — General

9.Other parties to be served within 24 hours179

10.Who is to attend conferences179

11.Mediation conferences179

12.Applications at case management conferences180

13.Judges and Masters may amend or cancel directions181

14.Non‑compliance with case management direction: duty to notify etc.181

15.Cases that are struck out etc.182

Order 30 — Admissions

1.Admission of other party’s case183

2.Notice to admit facts183

3.Judgment on admissions183

4.Admission and production of documents184

5.Notice to admit documents184

Order 31 — Special cases and stated cases

1.Questions of law186

2.Preliminary question of law186

3.Preparation of case186

4.Person under disability — leave to set down187

5.Entry of special case for argument187

6.Agreement as to payment of money and costs187

7.Reference of case to Court of Appeal: (see s. 58(1)(d))188

8.Cases stated outside the Court188

Order 31A — Expedited List

1.Interpretation190

2.Entry into Expedited List190

3.Heading of documents191

4.Timetable191

5.Directions192

6.Amendment to pleadings193

7.Adjournments194

8.Interrogatories195

9.Plan, photograph or model195

10.Mediation196

11.Referees197

12.Entry for trial198

13.Removal from the Expedited List198

14.Inconsistencies with other Rules199

Order 32 — Place and mode of trial

1.Place of Trial200

2.Application for trial by jury200

3.Usual mode of trial200

4.Time of trial of questions or issues200

5.Issues may be tried differently200

6.Trial with jury by a single Judge201

7.Disposal of action201

8.Trial by jury, precepts for etc.201

Order 33 — Entry for trial

1.Time for entering action202

2.When plaintiff in default, other party may act202

3.Notice of entry202

4.Form of entry for trial203

5.Time to elapse before hearing203

6.Entry for Perth203

7.Entry for Circuit Court203

8.Certificate of readiness for trial required203

8A.Affidavit of service of notice of entry for trial204

8B.Application for adjournment to Judge in charge of Civil List204

9.Application to countermand entry205

10.After entry no interlocutory applications without leave205

11.No withdrawal from list after date fixed except by leave206

12.Fixing dates of trial206

13.Re‑listing for further consideration207

14.Papers for the Judge207

Order 34 — Proceedings at trial

1.Failure of both parties to appear209

2.Non‑appearance of either party209

3.Setting aside judgment given in absence of party209

4.Adjournment of trial209

5.Conduct of the trial209

5A.Time etc. limits at trial210

6.Evidence in mitigation of damages in libel or slander211

7.Inspection by Judge or jury211

8.Judgment at or after trial211

9.Record of proceedings212

10.Where time occupied by trial excessive212

11.Entry of findings of fact on trial212

12.Certificate for entry of judgment212

13.Exhibits213

14.Custody of exhibits after trial213

15.Duty of parties to uplift exhibits213

15A.Return of document or object to the person who produces the document or object214

15B.Return of exhibit to the person who produces the exhibit214

16.Death of party before judgment is given215

17.Impounded documents215

18.Assessment of damages by a Master215

19.Damages to time of assessment216

20.Writ of inquiry not to be used216

Order 35 — Assessors and Referees

1.Trial with assessors217

2.Trial before a Referee217

3.Evidence before Referee217

4.Authority of Referee217

5.No power to imprison217

6.Referee may submit question to the Court218

7.Notice of report218

8.Adoption, etc. of report where further consideration adjourned218

9.Application to adopt or vary report218

10.Costs219

11.Application of this Order to other references219

Order 36 — Evidence: General

1.General rule — oral examination220

2.Evidence by affidavit220

3.Evidence of children and other witnesses220

4.Reception of plans, etc. in evidence221

5.Orders may be revoked221

6.Trials of issues, references, etc.221

7.Depositions as evidence221

8.Court documents admissible in evidence222

9.Evidence at trial may be used in subsequent proceedings222

10.Evidence in another cause222

11.Production of documents223

12.Writ of subpoena: form and issue223

13.Subpoena for attendance in chambers225

14.Number of names225

15.Amendment of writ of subpoena225

15A.Time for service225

16.Service of writ of subpoena226

16A.Early compliance with subpoena duces tecum226

17.Duration of writ of subpoena227

18.Setting aside subpoenas227

19.Costs of complying with subpoena228

20.Interest for the purposes of section 32 of the Act228

Order 36A — Expert evidence

1.Interpretation229

2.Medical evidence in actions for personal injuries229

3.Other expert evidence231

4.Exceptions231

5.Limitation of expert evidence232

6.Disclosure of part of expert evidence232

7.Derogation of privilege232

8.Mode of application232

9.Revocation and variation of directions233

Order 37 — Affidavits

1.Title of affidavits234

2.Form of affidavit234

3.Affidavits by 2 or more deponents235

4.Affidavits by illiterate or blind persons236

4A.Affidavits by non‑English speaking persons236

5.Irregularity237

6.Contents of affidavit237

7.Scandalous matter237

8.Alterations in affidavits238

9.Exhibits238

10.Affidavits sworn and bonds executed in Western Australia239

11.Affidavits sworn out of Western Australia240

12.Affidavit not to be sworn before a solicitor or his agent etc.241

13.Affidavits to be filed241

14.Special times for filing241

15.Alterations in accounts241

Order 38 — Evidence by deposition

1.Power to order depositions to be taken242

4.Enforcing attendance of witness242

5.Refusal of witness to attend or be sworn243

6.Time and place for examination243

7.Documents to be given to examiner243

8.Practice on examination244

9.Expenses of witnesses244

10.Examination of additional witnesses244

11.Mode of taking deposition244

12.Objection to questions245

13.Special report246

14.Oaths246

15.Perpetuating testimony246

16.Examiner’s fees247

17.Payment of examiner’s fees247

18.Application of this Order248

Order 38A — Examination of witnesses outside the State

1.Interpretation249

2.Application of Order249

3.Applications under sections 110 and 111 in civil proceedings250

4.Application under sections 110 and 111 in criminal proceedings250

5.Orders under sections 110 and 111251

6.Manner of examination251

7.Examiner’s remuneration251

Order 39 — Taking of evidence for foreign and Australian courts

1.Interpretation252

2.Applications under section 116252

3.Orders under section 117252

4.Examiner’s remuneration253

4A.Examiner’s power to administer oaths253

5.Transmission of depositions253

6.Procedure where witness claims privilege254

Order 39A — Trans‑Tasman proceedings

1.Interpretation256

2.Application256

3.Leave to serve subpoena256

4.Setting aside subpoena257

5.Failure to comply with subpoena258

6.Evidence by video link or telephone259

7.Fax copies260

Order 40 — Court experts

1.Definitions262

2.Appointment of expert262

3.Report of Court expert262

4.Cross‑examination263

5.Remuneration263

6.Further expert witnesses263

Order 41 — Motion for judgment

1.Judgment to be on motion265

2.Judgment after issues tried265

3.Where some issues only determined265

4.Motion to be set down within one year266

5.Court may draw inferences and determine questions266

Order 42 — Entry of judgment

1.Mode and form of entry267

2.Date from which judgment or order takes effect267

3.Orders to perform any act267

4.Judgment on production of affidavit or document267

5.Judgment on production of order or certificate268

6.Judgment on certificate of Master or Registrar268

7.Judgment by consent when party appears by a solicitor268

8.Consent of party in person268

9.Satisfaction of judgments268

Order 43 — Drawing up judgments and orders

1.Drawing up of judgments, etc.270

2.When order need not be drawn up270

3.Authentication of judgments and orders271

4.Sealed duplicate to be issued271

5.Amendment of order272

6.Draft and documents to be lodged272

7.Appointment to settle draft273

8.Attendance on settling the draft273

9.Default of attendance273

10.Dispensing with appointment274

11.Registrar’s powers and reference to the Court274

12.Party to engross275

13.Certificate for special allowance275

14.Entry of judgments and orders275

15.Application to vary275

16.Consent orders276

Order 44 — Foreign judgments

1.Rules to be subject to provisions of Orders in Council277

2.Application for registration277

3.Evidence in support of application277

4.Security for costs279

5.Order for registration279

6.Register to be kept279

7.Notice of registration280

8.Indorsement of service280

9.Application to set aside registration281

10.Issue of execution281

11.Determination of certain questions281

12.Certified copy of judgment obtained in this State282

Order 44A — Registration and enforcement of judgments under the Foreign Judgments Act 1991 of the Commonwealth

1.Interpretation284

2.Application284

3.Application for registration284

4.Evidence in support of application285

5.Security for costs286

6.Order for registration286

7.Register to be kept287

8.Notice of registration287

9.Indorsement of service288

10.Application to set aside registration288

11.Enforcement288

12.Determination of certain questions289

13.Certified copy of judgment obtained in this State289

Order 45 — Accounts and inquiries

1.Summary order for accounts292

2.Accounts, etc., at any stage292

3.Directions to be numbered292

4.Directions as to mode of taking account292

5.Account to be verified293

6.Mode of vouching accounts293

7.Surcharge or error293

8.Just allowances294

9.Expediting proceedings294

10.Distribution of fund before all persons entitled are ascertained294

Order 46 — Enforcement of judgments and orders

1.No demand necessary where judgment directs payment of money or transfer of property295

2.Conditional judgment: waiver295

3.Judgment on condition: execution295

3A.Enforcement of judgments for possession of land296

4.When service of copy of judgment etc. necessary before enforcement296

5.Execution by or against person not being a party298

6.Matters occurring after judgment: stay of execution, etc.299

Order 47 — Writs of execution: General

1.Interpretation300

2.Leave required for issue of writ in aid300

3.Application for leave to issue writ of execution300

4.Application for leave to issue writ of sequestration or writ of attachment301

5.Forms of writs of execution301

6.Issue of writ of execution301

7.Indorsement of name and address302

8.Fees and expenses303

10.Duration and renewal of writ of execution303

11.Return to writ of execution304

12.Sheriff or party may apply for directions304

13.Power to stay execution304

14.Separate writs for money and costs305

15.Order for sale otherwise than by auction305

Order 48 — Examination of judgment debtors, etc.

1.Order for examination307

2.Difficulty in enforcing judgment307

3.Examination to be recorded308

4.Costs308

Order 49 — Attachment of debts

1.Section 126 of the Supreme Court Act 1935 to be referred to309

2.Service of order to show cause309

3.Money in Court309

4.Order absolute: Form310

Order 50 — Charging orders and stop orders

1.Order charging stocks and shares311

2.Meaning of “Company” and “stock”311

3.Stop notice as to stock311

4.Claimant’s address to be stated311

5.Change of address312

6.Effect of stop notice312

7.Amendment of stop notice312

8.Withdrawal or discharge of notice313

9.Stop order where funds in Court313

10.Order prohibiting transfer of stock314

11.Charging order on money in Court314

12.Discharge of charging order315

Order 51 — Receivers

1.Application for receiver and injunction316

2.Appointment of receiver by way of equitable execution316

3.Receiver’s security316

4.Remuneration of receiver317

5.Accounts317

6.Payment of balances by receiver318

7.Default by receiver318

8.Books to be deposited319

9.Compensation to party restrained319

10.Compensation by applicant to party restrained319

Order 52 — Interlocutory injunctions, interim preservation of property

1.Application for injunction320

2.Detention, preservation or inspection of property320

3.Power to order taking of samples, etc.321

4.Disposal of perishable property, etc.321

5.Order for early trial322

6.Recovery of personal property subject to lien322

7.Directions323

8.Allowance of income or transfer of property pendente lite323

9.Injunction to include undertaking as to compensation to party restrained323

10.Compensation to party restrained by undertaking324

Order 53 — Sales of land by the Court

1.Interpretation325

2.Power to order sale of land325

3.Manner of sale325

4.Directions325

5.Certificate of sale326

6.Mortgage, exchange, or partition326

7.Reference of matters to counsel327

8.Objection to counsel’s opinion327

Order 54 — Originating and other motions

1.Application of Order328

2.Application by motion328

3.Notice of motion328

4.Length of notice of motion328

5.Form of notice of motion328

6.Issue of notice of motion329

7.Service of notice of motion with writ329

8.Adjournment, etc.329

Order 55 — Committal and attachment

1.Interpretation330

2.Committal for contempt of court330

3.Contempt in the face of the Court330

4.Other cases of contempt331

5.Form of notice and service331

6.Arrest332

7.Punishment332

8.Power to suspend execution of committal order332

9.Discharge333

10.Saving for other powers333

11.Court may make peremptory order in first instance333

12.Application of Rules to attachment334

Order 56 — Mandamus, Certiorari, Prohibition, Quo Warranto

1.Application ex parte335

2.Judge may direct application in Court or to Court of Appeal336

3.Order to show cause336

4.Service of order to show cause or notice of motion336

5.Terms, stay of proceedings337

6.Applicant limited to grounds etc. in order nisi338

7.Right to be heard in opposition338

8.Additional affidavits, determination of issue, etc.338

9.Order absolute, costs339

10.Issue and filing of writs339

11.Time for application339

12.Copy of warrant, order etc. to be produced340

13.Order to quash in the first instance340

14.Forms340

15.Prosecutor to show interest341

16.Form of writ341

17.Time for return of writ341

18.Service341

19.Service on corporate body, or justices342

20.Return and service342

21.Pleading to return342

22.No motion for judgment343

23.Peremptory writ343

24.Costs where peremptory writ awarded in first instance, or on obedience343

25.Proceedings in nature of interpleader344

26.Proceedings not to abate344

27.Time344

28.Mandamus by order344

29.No action against party obeying writ or order345

30.Pleadings in Prohibition345

31.Proceedings on judgment345

32.Writ of Procedendo345

33.Prohibition by order346

34.Rules of Court applicable346

35.Signature and service of information346

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

1.Interpretation347

2.Application for a review order, making347

3.Application for review order, procedure on348

3.Review order, service of349

4.Review order, hearing of349

5.Final order, making and service of349

Order 57 — Habeas corpus

1.Application for writ of habeas corpus351

2.Power of Court when ex parte application made351

3.Copies of affidavits to be supplied352

4.Power to order release of person restrained352

5.Signed copy of writ to be filed353

6.Directions as to return of writ353

7.Service of writ and notice353

8.Return to writ of habeas corpus354

9.Procedure on hearing354

10.Form of writ354

Order 58 — Proceedings by originating summons

1.Proceedings to be heard in chambers to be commenced by originating summons355

2.Originating summons for relief without administration355

3.Summons for administration356

4.Service356

5.Decision without judgment for administration357

6.Orders which may be made on application for administration or execution of trusts357

7.Interference with discretion of trustee, etc.358

8.Conduct of sale of trust property358

10.Construction of written instruments358

11.Construction or validity of statutes, etc.358

12.Discretion of Court359

13.Application by vendor or purchaser of land359

14.Form and issue of originating summons359

15.Duration and renewal: Concurrent summons360

16.Time for appearance360

17.Entry of appearance360

18.Where appearance not required361

18A.Time for service where appearance is not required361

19.Fixing time for hearing362

20.Notice of hearing363

21.Evidence363

22.Proceeding where a party fails to attend363

23.Order made ex parte may be set aside364

24.Costs thrown away by non‑attendance of party364

25.Further attendance where summons not fully disposed of364

26.What matters may be included in the same summons364

27.Directions, etc.365

28.Adjournment of summons365

29.Further provisions as to powers and procedure366

30.Directions regarding applications under Transfer of Land Act 1893 s. 129C366

Order 59 — Applications and proceedings in chambers

1.Business at chambers368

2.Hearing of proceedings in open court369

3.Form of applications in chambers369

4.Form and issue of summons370

5.Service of summons370

6.Obtaining assistance of experts371

7.Application of O. 58 R. 22 to 28371

8.Summons operating as stay of proceedings371

9.Parties to confer before making application371

10.Form of order372

Order 60 — Jurisdiction of the Masters

1.Powers of the Masters373

2.Master or Registrar may take accounts and make inquiries376

2A.When matters within Master’s jurisdiction may be brought before a Judge377

3.Reference by Master to a Judge or the Court of Appeal377

5.Power to issue advertisements and summon witnesses377

6.Duty of persons summoned to attend378

7.Form — Master’s Summons378

8.Interest and apportionment378

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

1.Powers of Registrars379

2.Powers of Case Management Registrars380

2A.Applications within Registrar’s jurisdiction to be made to Registrar380

3.Registrar may refer matters to a higher judicial officer381

4.Appeals from Registrars382

5.Appeal procedure383

6.Powers of Judge or Master on appeal383

7.This Order not to apply to Court of Appeal Registrar384

Order 61 — Proceedings under judgments and orders

1.Application to proceedings under an order385

2.Summons to proceed and directions385

3.Notice of judgment to be served on certain persons386

4.Settling deed if parties differ387

5.When service of notice of judgment may be dispensed with387

6.Power to bind where service dispensed with388

7.Procedure where some parties not served388

8.Course of proceedings in chambers388

9.Classifying interests of parties389

10.Judge may require distinct solicitor to represent parties389

11.Attendance of parties not directed to attend389

12.Order stating parties directed to attend390

13.Advertisements may be directed390

14.By whom prepared and signed390

15.Form of advertisement391

16.Failure to claim within specified time391

17.Examination and verification of claims391

18.Adjudication on claims392

19.Adjournment — further evidence394

20.Service of notice of judgment on certain claimants394

21.Notice of claims allowed or disallowed394

22.Service of notices395

23.Interest on debts395

24.Interest on legacies395

25.Master’s certificate396

26.Settling and filing of Master’s certificate396

27.Parties may take opinion of the Judge397

28.Discharge or variation of Master’s certificate397

28A.Discharge or variation of Registrar’s certificate398

29.Summons to have matter further considered399

Order 62 — Proceeding under the Trustees Act 1962

1.Mode of application400

2.Title of proceedings400

3.Payment into court under section 99400

4.Notice of payment in, etc.401

5.Applications in respect of money etc. and notice thereof401

Order 62A   Mortgage actions

1.Application and interpretation402

2.Claim for possession: non‑appearance by a defendant403

3.Evidence in support of originating summons for possession or payment404

4.Action by writ: judgment in default405

5.Foreclosure in redemption action406

Order 65 — Appeals from certain statutory boards and tribunals

1.Interpretation407

2.Application of this Order407

3.Institution of Appeal407

4.Contents of notice of motion408

5.Title of notice of appeal, etc.408

6.Hearing409

7.Date for hearing409

8.Record of proceedings to be supplied410

9.Appeal book410

10.Appeal to be in nature of rehearing411

11.Order411

12.Application of rules of Court411

13.Costs412

Order 65C — Reviews under the Electoral Act 1907

1.Interpretation413

2.Application of Order413

3.Application for review413

4.Title of the notice of review413

5.Hearing414

6.Date of hearing414

7.Review book415

8.Applicant limited to grounds in notice of originating motion415

9.Right to be heard in opposition415

10.Additional affidavits, determination of issue, etc.416

11.Order416

12.Application of Rules of Court416

Order 66 — Costs

1.General rules as to costs417

2.Costs where several causes of action or several defendants, etc.418

3.Costs of amendment without leave: non‑admission of facts or documents419

4.Costs out of fund or property419

5.Liability of solicitor420

6.Costs of solicitor guardian ad litem421

7.Set‑off421

8.Costs of Law Officers422

9.Restriction of discretion to order costs422

10.Stage at which costs may be dealt with422

11.Scale of costs423

12.Costs in particular cases424

13.Costs where scale does not apply425

14.Lump sum — interim award425

17.Costs in small claims426

18.Matters not provided for in the scale426

19.Allowances on taxation427

20.Basis for calculation of costs428

21.Costs where no substantial trial428

23.Certain fees may be increased in special circumstances429

24.Costs of solicitor when money recovered by or on behalf of infant, etc.429

32.Bills of costs to be taxed430

33.Indorsements on bill of costs431

34.When notice of taxation need not be given431

35.Notice of taxation431

36.Vouchers to be lodged431

37.Solicitor delaying taxation432

38.Appointment to be peremptory432

39.Taxing Officer may direct bills of costs to be brought in432

40.Default by party in taxing costs432

41.Where costs payable out of property notice to clients may be directed432

42.Form of bills of costs433

43.Taxing Officer determines questions of fact433

44.Power of Taxing Officer433

45.Reference to Court434

46.Where proceedings adjourned into court434

47.Costs of interrogatories, discovery434

48.Costs of motion, etc. following event435

49.Where motion, etc. stood over to trial and no order made as to costs435

50.Costs reserved435

51.Where Court may fix costs436

52.Leave to refer to Judge where costs to be apportioned, etc.436

53.Party dissatisfied with taxation may object436

54.Taxing Officer may review taxation437

55.Taxation may be reviewed by a Judge438

56.No further evidence on review except with leave438

57.Taxing Officer’s certificate enforceable as a judgment438

58.Stay on review438

59.Power of Taxing Officer where party liable to be paid and to pay costs439

60.Taxing Officer to assist in settling costs on taking of accounts439

61.Interim certificate in matters of account440

Order 67 — Central Office, officers

1.Superintendence of Central Office441

2.Ministerial acts of Registrar441

3.Taking of oaths and affidavits441

4.Seals441

5.Abuse of process: Reference by Registrar to Judge441

6.Office copies, etc.442

7.Petition, award, etc., to be filed before judgment, etc. passed442

8.Indexes442

9.Date of filing to be marked, etc.443

10.Custody and searches of records443

11.Inspection443

12.Deposit of documents444

13.Restriction on removal of documents444

14.Deposit for officer’s expenses445

15.Admissions, awards, etc. to be filed445

16.New forms445

17.Application of certain rules to accounts etc. taken by Registrar445

18.Reference in judgment to Registrar446

Order 68 — Sittings, vacations and office hours

1.Full Court and civil sittings447

2.Criminal sittings447

3.Vacations 447

4.Days included in sitting and vacation448

5.Offices — days on which open448

6.Office hours448

7.Vacation Judge448

Order 69 — Paper, printing, notice, and copies

1.Regulations as to printing and photography449

2.Requirements as to documents449

3.Direction of Court as to cost of printing, shorthand, recording451

4.Copies of documents for the other parties452

5.Requirements as to copies452

6.Copies of affidavits on certain ex parte applications452

Order 70 — Disability

1.Interpretation454

2.Persons under disability suing or defending454

3.Appointment of next friend or guardian ad litem455

4.Probate actions: Special provisions457

5.Where person under disability does not appear459

6.Discharge or variation of certain orders461

7.Removal of next friend or guardian461

8.No implied admission from pleading461

9.Discovery and interrogatories461

10.Compromise of action by person under disability462

10A.Compromise of appeal by person under disability462

11.Compromise before action462

12.Control of money recovered463

13.Personal service on person under disability464

Order 71 — Partners, business names

1.Partners may sue or be sued in the firm name466

2.Disclosure of partners’ names466

3.Service467

4.Notice of capacity in which person is served467

5.Appearance of partners467

6.No appearance except by partners468

7.Appearance under protest of person served as a partner468

8.Execution of judgment against a firm469

9.Enforcing judgment in action between partners470

10.Attachment of debts owing from a firm470

11.Proceedings begun by originating summons471

12.Application to person using a business name471

13.Charge on partner’s interest in partnership471

Order 72 — Service of documents

1.When personal service required473

2.Personal service — how effected473

3.Personal service on body corporate473

4.Substituted service473

5.Ordinary service — how effected474

5A.Service at a document exchange475

6.Notices from office of the Court by post475

7.Affidavit of service476

8.No service required in certain cases476

Order 73 — Probate proceedings

1.Application and interpretation477

2.Issue of writ477

3.Service out of the jurisdiction478

4.Intervention478

5.Citation to see proceedings478

6.Person cited failing to appear479

7.Entry of appearance479

8.Citation to bring in grant479

9.Citations479

10.Service of citations480

11.Affidavit of scripts480

12.Where script in pencil481

13.Default of appearance481

14.Counterclaim482

15.Party may give notice that he only requires proof in solemn form482

16.Pleadings482

17.Default of pleadings483

18.Discontinuance483

19.Compromise484

20.Orders etc. to bring in testamentary papers484

21.Applications to the Court484

22.Administration pending litigation485

Order 75 — Proceedings under the Inheritance (Family and Dependants Provision) Act 1972

1.Interpretation486

2.Mode of application486

3.Copy of summons to be placed on probate file486

4.Summons for directions487

5.Court may make inquiries, etc.487

6.Parties may be added488

7.Representative defendant488

8.Probate etc. to be lodged at Registry488

9.Appearance to originating summons for extension of time not required489

Order 75A — Admission of practitioner under section 30(2) of the Legal Practice Act 2003

1.Interpretation490

2.Application to the Full Court490

3.Applicant to attend office of superior court referred to in section 30(2) of the Act491

4.Entry on Roll of Practitioners491

5.Oath or affirmation491

Order 76 — Applications under the Public Notaries Act 1979

1.Interpretation493

2.Application for certificate of fitness493

3.Notice of intention to apply. (See Public Notaries Act 1979 s. 9)494

4.Application to Full Court494

5.Form of certificates495

6.Applications to suspend or strike off Public Notaries495

7.Fees payable on application for appointment496

Order 78 — Applications under the Vexatious Proceedings Restriction Act 1930 21

1.Mode of application497

2.Notice to be indorsed on summons497

3.Time for hearing498

4.Hearing may proceed if respondent fails to appear498

5.Service on Attorney General of notice of application for leave not necessary498

6.Judge may refer application to open court or to Full Court498

7.Evidence498

8.Costs499

9.Orders to be gazetted by Registrar499

Order 80 — Applications under the Escheat (Procedure) Act 1940

1.Definition500

2.Mode of application500

3.Notice500

4.Evidence: Judge may direct inquiry500

5.Affidavit verifying claim to be filed501

6.Judge may order issue to be tried501

7.Form of Order501

8.Costs501

Order 80A — Applications under the Royal Commission (Custody of Records) Act 1992

1.Interpretation502

2.Applications to Register502

3.Form of order503

Order 81A — References under the Environmental Protection Act 1971 

1.Definition504

2.Application under section 42 of the Act504

3.Directions to be sought504

4.Application of Order 54505

Order 81B — Proceedings under the Service and Execution of Process Act 1992 of the Commonwealth

1.Interpretation506

2.Enforcement of judgments under section 105 of the Act506

3.Interest under section 108 of the Act507

Order 81C — Applications under sections 76 and 78 of the Road Traffic Act 1974

1.Interpretation508

2.Application by notice of motion508

3.Return of motion and date of hearing508

4.Applications pursuant to s. 76(1), or (7)(a) or 78508

5.Applications pursuant to s. 76(7)(b)510

6.Deponent to be produced for cross‑examination510

Order 81D — Proceedings under the Commercial Arbitration Act 1985

1.Interpretation512

1A.Application512

2.Title of proceedings512

3.Matters for a Judge in Court513

4.Time for applications to determine preliminary points of law513

5.Time for other applications and for appeals514

6.Interlocutory orders514

7.Subpoenas515

8.Orders for examination of witnesses515

9.Custody of records and exhibits515

10.Appeals and questions of law516

11.Enforcement of arbitration awards516

12.Payment into and out of court517

13.Acceptance of money paid into court517

14.Money remaining in court518

15.Non‑disclosure of payment into court518

16.Taxation of costs518

Order 81E — Cross‑vesting

1.Interpretation520

2.Application of this Order520

3.Commencement of proceedings520

4.Special federal matters521

6.Directions521

7.Transfer of proceedings522

8.Applications to be dealt with by a Judge522

9.Transfer on Attorney General’s application522

10.Transfer to Court when no proceeding pending523

11.Conduct of proceedings523

Order 81F — Confiscation under the Crimes (Confiscation of Profits) Act 1988 or the Proceeds of Crime Act 1987 (Cwlth)

Part 1 — Preliminary

1.Interpretation525

2.Application of this Order525

3.Affidavits in support526

4.Summons for directions526

5.Powers of the Court as to directions526

6.Representative defendant527

Part 2 — Applications to be brought by originating summons with appearance

7.Procedure for application for confiscation orders527

8.Restraining orders on notice528

9.Restraining orders ex parte528

Part 3 — Applications to be brought by originating summons without appearance

10.Return of seized property529

11.Variation of production order529

12.Applications to cancel interstate registration529

Part 4 — Applications to be brought by summons

13.Further orders in relation to restraining orders530

14.Applications to set aside confiscation orders530

15.Applications to discharge forfeiture orders531

16.Declarations of value531

Part 5 — Miscellaneous

18.Register of interstate restraining orders531

19.Discharge of registered pecuniary penalty order532

20.Facsimile copies of interstate orders532

21.Examination before Supreme Court532

Order 81FA — Confiscation under the Criminal Property Confiscation Act 2000

Part 1 — Preliminary

1.Interpretation533

Part 2 — Proceedings under the Confiscation Act 2000

2.Applications for confiscation declarations534

3.Applications for other declarations or orders535

4.Affidavit in support of an application536

5.Objections to confiscation of property536

6.Service on DPP536

7.Directions537

8.Conference not required537

9.Representative defendant537

Part 3 — Registration of freezing notices and interstate orders

10.Registration of freezing notices538

11.Registration of interstate orders538

Order 81H — Proceedings under the Surveillance Devices Act 1998

1.Interpretation540

2.Application for warrant540

3.Reports to Judges540

4.Application for order allowing publication or communication in the public interest540

5.Identification of persons in documents541

6.Practice Directions541

Order 82 — Sheriff’s Rules

1.Publicity of sale542

2.Place of sale542

3.Mode of sale542

4.Notice to sheriff not to pay money to execution creditor543

5.Suspension of execution543

6.Execution of writs of attachment etc.543

7.Service of process by sheriff544

8.Fees where sheriff does not execute process545

9.Taxation of fees545

10.Expenses of sale545

11.Deposit on account of fees545

12.Fees where execution not proceeded with546

13.Particulars of arrangement where execution is discontinued546

14.Service at a distance546

15.Execution of process at a distance547

16.Default in payment of fees547

Order 83 — Consolidation of pending causes and matters

1.Causes may be consolidated548

2.Consolidation with action removed from another court548

3.Directions548

Order 84 — General Rules

1.Repealed Orders not revived549

2.Cases not provided for549

3.Publication of written reasons for judgment549

4.Seal and records in Federal Jurisdiction in Bankruptcy549

5.Summary proceedings under s. 27 of the Public Trustee Act550

6.Affidavit of claim to purchase money paid into court550

7.Account by solicitor551

9.Proceedings under Admiralty Act 1988 of the Commonwealth551

Order 85 — Proceedings to which the Federal Courts (State Jurisdiction) Act 1999 applies

1.Interpretation552

2.Title of proceedings552

3.When ineffective judgment to be registered552

4.Application for registration553

5.Ineffective judgments may be registered554

6.Applications for an order under section 10554

7.Applications under section 11555

8.Effect of order under section 11555

The Second Schedule

The Third Schedule

1.644

2.644

3.644

4.644

6.644

7.645

8.645

9.645

10.645

11.645

12.646

13.646

14.646

15.646

16.647

The Fourth Schedule 

Notes

Compilation table654

 

Supreme Court Act 1935

Rules of the Supreme Court 1971

Order 1  — Application, elimination of delay and forms

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

1.Short title

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

2.Commencement, repeal and saving

(1)These Rules shall take effect on 14 February 1972, and on and from that date the Rules set out in the First Schedule shall be revoked.

(2)The revocation effected by paragraph (1) does not affect the validity of any proceedings taken under the rules of Court so revoked.

(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.

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.Proceedings in the Supreme Court to which the Supreme Court (Mental Health) Rules 1965 2, relate.

Mental Health Act 1962 3, s. 87.

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

Electoral Act 1907, s. 173.

5.Proceedings to which the Criminal Procedure Rules 2000 relate.

The Criminal Code, s. 747.

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

(a)any criminal proceedings;

(b)any proceedings to which the Matrimonial Causes and Personal Status Rules 1949 4, as amended, apply;

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

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

[Rule 3 amended in Gazette 10 Sep 1973 p. 3428; 28 Jun 1994 p. 3049; 8 May 2000 p. 2161; 29 Dec 2000 p. 7918; 27 Jul 2001 p. 3895.]

3A.Inherent powers not affected

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

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

4.Definitions

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

Accountant means the Accountant, Department of Justice;

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

(a)ambassador;

(b)high commissioner;

(c)minister;

(d)head of mission;

(e)commissioner;

(f)chargé d’affaires;

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

(h)consul‑general;

(i)consul;

(j)vice‑consul;

(k)trade commissioner; and

(l)consular agent;

Case Management Registrar means a Registrar appointed as such by the Chief Justice;

Cause Book means the book kept in the Central Office in which the number of and other details relating to a cause or matter are recorded;

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

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

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

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

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

Master means a Master of the Supreme Court, and includes an Acting Master;

Officer means an officer of the Supreme Court;

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

Practitioner has the same meaning as in the Legal Practice Act 2003;

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;

Taxing Officer includes a Registrar, and any other officer of the Court having power to tax costs;

The Act means the Supreme Court Act 1935;

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

Trial includes hearing;

Writ means a writ of summons.

(2)In these Rules, unless the context otherwise requires, the Court means the Supreme Court or any one or more Judges thereof, whether sitting in court or in chambers, or a Master: but this provision shall not be taken as affecting any provision of these Rules, and in particular Order 60, by virtue of which the authority and jurisdiction of the Masters is defined and regulated.

[Rule 4 amended in Gazette 14 Dec 1979 p. 3869; 30 Nov 1984 p. 3951‑2; 28 Oct 1996 p. 5674; 19 Apr 2005 p. 1298.]

4A.Elimination of delays

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

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

4B.System of case flow management

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

(a)promoting the just determination of litigation;

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

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

(d)facilitating the timely disposal of business at a cost affordable by parties.

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

[Rule 4B inserted in Gazette 26 Mar 1993 p. 1840‑1.]

4C.Parties to notify settlement

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

[Rule 4C inserted in Gazette 26 Mar 1993 p. 1841.]

5.Construction of references to Orders, Rules, etc.

(1)Unless the context otherwise requires, any reference in these Rules to a specified Order, Rule or Schedule is a reference to that Order or rule of, or that Schedule to these Rules, and any reference to a specified Rule, paragraph or subparagraph is a reference to that Rule of the Order, that paragraph of the rule or that subparagraph of the paragraph, in which the reference occurs.

(2)Any reference in these Rules to anything done under a rule or these Rules includes a reference to the same thing done before the commencement of that rule under any corresponding rule of court ceasing to have effect on the commencement of that rule.

(3)Except where the context otherwise requires any reference in these Rules to any Act shall be construed as a reference to that Act as amended, extended or applied by or under any other Act.

6.Forms

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

(2)Where no form is prescribed for any document required for any purpose of these Rules or by the practice of the Court, the senior Master may give directions with respect to the form to be used, and subject to any such direction, the appropriate form as printed in the Masters’ Practice Forms in “The Supreme Court Practice” (commonly known as “The White Book”) should be used.

[Rule 6 amended in Gazette 30 Nov 1984 p. 3952.]

7.Electronic documents and communications

(1)The Court may give directions to facilitate —

(a)the preparation, filing, service and exchange of electronic documents relating to proceedings before the Court;

(b)the preparation and issue of electronic documents by the Court; and

(c)the conduct of proceedings before the Court by means of the electronic communication of written information between the Court and parties to the proceedings.

(2)The directions may be given —

(a)by the Chief Justice in practice directions applicable to proceedings generally or to a particular class of proceeding; or

(b)by a Judge or the Court of Appeal in particular proceedings.

(3)The directions may vary the operation of, or allow non‑compliance with, these Rules.

(4)A direction given under this Rule has effect as if it were part of these Rules.

(5)Nothing done under such a direction shall be treated as an irregularity for the purposes of Order 2.

[Rule 7 inserted in Gazette 5 Nov 1999 p. 5625‑6; amended in Gazette 29 Apr 2005 p. 1795.]

Order 2  — Effect of non‑compliance

1.Non‑compliance with Rules

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

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

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

2.Application to set aside for irregularity

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

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

Order 3  — Time

1.“Month” means calendar month

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

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

2.Reckoning periods of time

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

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

3.Period between 24 December and 15 January excluded from time for filing, etc., of pleading

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

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

4.Time expires on day on which Central Office closed

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

5.Extension, etc., of time

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

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

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

[(4)repealed]

[Rule 5 amended in Gazette 29 Apr 2005 p. 1791.]

6.Extension where security ordered

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

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

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

[8.Repealed in Gazette 20 Jun 1986 p. 2040.]

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

1.Commencement of civil proceedings

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

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

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

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

2.Applications in pending proceedings

Applications in pending proceedings must be made — 

(a)if in court, by motion;

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

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

3.Right to sue in person

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

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

Order 5  — Writs of summons

1.Form of writ

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

2.Writs for service out of the State

A writ to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction shall be in Form No. 3. Such notice shall be in accordance with Form No. 4.

3.Place of trial to be shown

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

4.Place of issue

Every writ shall be issued out of the Central Office.

5.Preparation of writ

Writs shall be prepared by the plaintiff or his solicitor.

6.Sealing of writ

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

7.Copy to be left with officer

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

8.Copy to be filed

The officer receiving such copy shall file it and an entry of the filing thereof shall be made in a book to be called the Cause Book, which shall be in such form and kept in such manner as the Chief Justice may from time to time direct, and the action shall be distinguished by the date of the year and a number.

9.Writs for service out of the State

A writ for service out of the jurisdiction or of which notice is to be given out of the jurisdiction shall not be issued without the leave of the Court, unless the writ is to be served under the Service and Execution of Process Act 1992 of the Commonwealth.

[Rule 9 amended in Gazette 1 Mar 1994 p. 784.]

10.All writs to be tested

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

11.Time for appearance to be stated in writ

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

 

Where the place for service is

Time

(1)In the State of Western Australia — 

 

Less than 300 kilometres from Perth

10 days.

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

 

16 days.

600 kilometres and above 600 kilometres .........................................

 

21 days.

(2)Outside the State but within the Commonwealth of Australia ....................

 

30 days.

(3)Outside the Commonwealth of Australia

Such time as shall be fixed by the Court.

In the computation of the times prescribed by this Rule, the day of service shall be excluded.

[Rule 11 amended in Gazette 7 Dec 1973 p. 4488; 14 Dec 1979 p. 3869.]

Order 6  — Indorsement of claim: other indorsements

1.Indorsement of claim

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

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

2.Actions for libel

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

3.Indorsement of statement of claim

In any action other than an action which includes — 

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

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

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

4.Notice as to stay of proceedings

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

5.Representative character

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

6.Indorsement of claim for account

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

7.Address where plaintiff sues by solicitor

(1)The solicitor of a plaintiff suing by a solicitor shall indorse upon the writ or notice in lieu of the writ before it is issued, the address of the plaintiff and also his own name and place of business which, if that place is not more than 66 kilometres from the Supreme Court at Perth, shall be his address for service. If his place of business is more than 66 kilometres from the said Court he shall also indorse on the writ or notice another place to be his address for service which shall not be more than 66 kilometres from the said Court. All documents not required by these Rules to be served personally may be left for the solicitor for the plaintiff at his address for service.

(2)Where any such solicitor is only agent of another solicitor, he shall add to his own name and place of business the name and place of business of the principal solicitor.

[Rule 7 amended in Gazette 7 Dec 1973 p. 4489; 31 Mar 1983 p. 1090.]

8.Where plaintiff sues in person

A plaintiff suing in person shall indorse upon the writ or notice in lieu of the writ before it is issued, his place of residence, his occupation, and a place to be his address for service, which shall not be more than 66 kilometres from the Supreme Court at Perth, where all documents not required by these Rules to be served personally may be left for him.

[Rule 8 amended in Gazette 10 Jan 1975 p. 50; 31 Mar 1983 p. 1090.]

9.Proceedings other than by writ

In all cases where proceedings are commenced otherwise than by writ, Rules 7 and 8 apply to the document by which such proceedings are originated as if it were a writ.

10.Document not to be filed without address for service

No document required to be indorsed with an address for service shall be received unless it complies with the requirements of these Rules.

11.Address indorsed to be address for service until change notified

(1)When an address for service has been given in accordance with these Rules, that address shall be the address for service of the party until a notice has been filed and served in accordance with paragraph (2).

(2)A party shall be at liberty at any time without leave, to change his address for service by notice of such change and of another address for service. The notice shall be given by filing the same in the Central Office, and serving a copy of such notice upon the opposite party. Such notice may be embodied in any notice of change of solicitor under Order 8.

Order 7  — Duration and renewal of writ: concurrent writs

1.Duration and renewal of writ

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

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

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

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

2.Evidence of extension of validity of writ

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

3.Concurrent writs

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

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

(3)Without prejudice to the generality of paragraph (1) a writ for service within the jurisdiction may be issued as a concurrent writ with one which, or notice of which, is to be served out of the jurisdiction, and a writ which, or notice of which, is to be served out of the jurisdiction may be issued as a concurrent writ with one for service within the jurisdiction.

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

4.Unserved writs may be struck out

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

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

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

the Court may issue a summons (to a hearing at least 7 days after it is issued) to the plaintiff to show cause why the writ should not be struck out.

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

(a)strike out the writ; or

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

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

[Rule 4 inserted in Gazette 28 Oct 1996 p. 5674‑5.]

Order 8  — Disclosure by solicitors: change of solicitors

1.Solicitor to declare whether writ issued by his authority

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

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

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

2.Change of solicitor

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

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

3.Notice of change of agent

(1)Where a solicitor for whom some other solicitor is acting as agent in a cause or matter changes the solicitor so acting, notice of the change must be given, and Rule 2(1) shall apply in relation to a notice of change of agent as it applies in relation to a notice of change of solicitor.

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

4.Notice of appointment of solicitor

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

5.Notice of intention to act in person

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

6.Removal of solicitor from the record

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

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

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

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

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

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

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

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

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

he shall, subject to the foregoing provisions of this Order, be considered the solicitor of the party until the final conclusion of the cause or matter including any appeal therein.

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

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

[Rule 7 amended in Gazette 15 Jun 1973 p. 2247; 23 May 1975 p. 1404.]

8.Effect of order

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

9.Address for service of party whose solicitor is removed

Where — 

(a)an order is made under Rule 6, or

(b)an order is made under Rule 7, and the applicant for that order has complied with Rule 7(1),

then unless and until the party to whose solicitor or to whom, as the case may be, the order or certificate relates either appoints another solicitor and complies with Rule 4, or being entitled to act in person, gives notice of his intention so to do and complies with Rule 5, his last known address or such other address as on ex parte application may be ordered by the Court or, where the party is a body corporate, its registered or principal office shall, for the purpose of the service on him of any document not required to be served personally, be deemed to be his address for service.

10.“Address for service”

In this Order subject to Rule 9, the expression address for service means the address for service required by Orders 6 and 12.

11.Solicitor not to act for adverse parties

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

12.Practitioner or clerk not to be security

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

Order 9  — Service of originating process: general provisions

1.General provisions

(1)Subject to the provisions of any Act and these Rules, a writ must be served personally on each defendant by the plaintiff or his agent.

(2)Where a defendant’s solicitor indorses on the writ a statement that he accepts service of the writ on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant and to have been so served on the date on which the indorsement was made.

(3)Where a writ is not duly served on a defendant but he enters an unconditional appearance in the action begun by the writ, the writ shall be deemed to be duly served on him and to have been so served on the date on which he entered the appearance.

(4)Where a writ is duly served on a defendant otherwise than by virtue of paragraph (2) or (3), then subject to Order 10 Rule 9(9), unless within 3 days after service the person serving it indorses on the sealed copy of the writ the following particulars, that is to say, the day of the week and date on which it was served, where it was served, the person on whom it was served, and, where he is not the defendant, the capacity in which he was served, the plaintiff in the action begun by the writ shall not be entitled to enter final or interlocutory judgment against the defendant in default of appearance or in default of defence.

2.Service of writ on agent of oversea principal

(1)Where the Court is satisfied on an ex parte application that — 

(a)a contract has been entered into within the jurisdiction with or through an agent who is either an individual residing or carrying on business within the jurisdiction or a body corporate having a registered office or a place of business within the jurisdiction; and

(b)the principal for whom the agent was acting was at the time the contract was entered into and is at the time of the application neither such an individual nor such a body corporate; and

(c)at the time of the application either the agent’s authority has not been determined or he is still in business relations with his principal,

the Court may authorise service of a writ beginning an action relating to the contract to be effected on the agent instead of the principal.

(2)An order under this Rule authorising service of a writ on a defendant’s agent must limit a time within which the defendant must enter an appearance.

(3)Where an order is made under this Rule authorising service of a writ on a defendant’s agent, a copy of the order and of the writ must be sent by post to the defendant at his address out of the jurisdiction, if such address is known to the plaintiff.

3.Service of writ in pursuance of contract

(1)Where — 

(a)a contract contains a term to the effect that the Supreme Court shall have jurisdiction to hear and determine any action in respect of a contract or, apart from any such term, the Supreme Court has jurisdiction to hear and determine any such action; and

(b)the contract provides that, in the event of any action in respect of the contract being begun, the process by which it is begun may be served on the defendant, or on such other person on his behalf as may be specified in the contract, in such manner or at such place (whether within or out of the jurisdiction), as may be so specified,

then if an action in respect of the contract is begun in the Supreme Court and the writ by which it is begun is served in accordance with the contract the writ shall, subject to paragraph (2), be deemed to have been duly served on the defendant.

(2)A writ which is served out of the jurisdiction in accordance with a contract shall not be deemed to have been duly served on the defendant by virtue of paragraph (1) unless leave to serve the writ, or notice thereof, out of the jurisdiction has been granted under Order 10 Rule 1 or 2.

4.Service of writ in certain actions for possession of land

In an action claiming possession of land, the Court may — 

(a)if satisfied on an ex parte application that no person appears to be in possession of the land and that service cannot be otherwise effected on any defendant, authorise service on that defendant to be effected by affixing a copy of the writ to the door of the dwelling house or to some conspicuous part of the land;

(b)if satisfied on an ex parte application that no person appears to be in possession of the land and that service could not otherwise have been effected on any defendant, order that service already effected by affixing a copy of the writ to the door of the dwelling house or to some conspicuous part of the land shall be treated as good service on that defendant.

5.Service of originating summons, petition and notice of motion

The foregoing Rules of this Order except Rule 1(4) shall apply in relation to an originating summons to which an appearance is required to be entered as they apply in relation to a writ, and Rule 1(1) and (2) shall, with any necessary modifications, apply in relation to an originating summons to which no appearance need be entered, a notice of an originating motion and a petition as they apply in relation to a writ.

Order 10   Service out of the jurisdiction

1A.Application

(1)Rules 9 to 11 shall not apply to the service of process in a foreign country which is a party to the Hague Convention.

(2)This Order does not apply to any service of process to which the Service and Execution of Process Act 1992 of the Commonwealth applies.

[Rule 1A inserted in Gazette 7 Feb 1992 p. 676; amended in Gazette 1 Mar 1994 p. 785.]

1.When service out of jurisdiction is permissible

(1)Service of a writ or notice of a writ out of the jurisdiction is permissible with the leave of the Court whenever — 

(a)the subject matter of the action, so far as it concerns the party to be served, is — 

(i)land (with or without rents or profits) or other property situate within the State, or the perpetuation of testimony relating to land within the State; or

(ii)any shares or stock of a corporation or joint stock company having its principal place of business within the State;

(b)any Act, deed, will, contract, obligation or liability affecting land or hereditaments situate within the State is sought to be construed, rectified, set aside or enforced in the action;

(c)in the action relief is sought against a person domiciled or ordinarily resident within the jurisdiction;

(d)the action is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Western Australia or if the action is for any relief or remedy which might be obtained in any such action as aforesaid;

(e)the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being in either case a contract — 

(i)made within the jurisdiction; or

(ii)made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or

(iii)which by its terms or implications is governed by the law of Western Australia;

(f)the action is brought in respect of a breach committed within the jurisdiction of a contract wherever made and irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so much of the contract as ought to have been performed within the jurisdiction;

(g)in the action an injunction is sought ordering the defendant to do or refrain from doing anything within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed whether damages are or are not also sought in respect thereof;

(h)any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction;

(i)the action is for the recovery of taxes or duty (with or without interest or fines for default in payment thereof) which have been imposed or become due on or in respect of property situate within the jurisdiction;

(j)the action is by a mortgagee or mortgagor in relation to a mortgage of personal property situate within the jurisdiction and seeks relief of the nature or kind following, that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee, but does not seek (unless and except so far as permissible under subparagraph (e)) any personal judgment or order for payment of any moneys due under the mortgage;

(k)the action is founded on a tort committed within the jurisdiction;

(l)the action is properly brought under the Civil Aviation (Carriers’ Liability) Act 1959 of the Commonwealth.

(2)In paragraph (1)(j) the expression personal property situate within the jurisdiction means personal property, which on the death of an owner thereof intestate, would form subject matter for the grant of letters of administration to his estate in Western Australia; the expression mortgage means a mortgage charge or lien of any description; the expression mortgagee means a party for the time being entitled to or interested in a mortgage; and the expression mortgagor means a party for the time being entitled to or interested in property subject to a mortgage.

2.Service out of the jurisdiction in certain actions in contract

Where it appears to the Court that a contract contains a term to the effect that the Supreme Court shall have jurisdiction to hear and determine any action in respect of the contract, the Court may, subject to Rule 3, grant leave for service out of the jurisdiction of the writ or notice of the writ, by which an action in respect of the contract is begun.

3.Notice of writ

Unless service is to be effected within the Commonwealth of Australia, leave granted under Rule 1 or 2 shall be leave for service out of the jurisdiction of notice of the writ and not the writ itself.

4.Application for leave

(1)An application for the grant of leave under Rule 1 or 2 shall be supported by an affidavit stating the grounds on which the application is made and that, in the deponent’s belief, the plaintiff has a good cause of action, and showing in what place or country the defendant is, or probably may be found.

(2)No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.

[Rule 4 amended in Gazette 15 Jun 1973 p. 2247.]

5.Time for appearance

Where service is to be effected outside the Commonwealth of Australia, the order giving leave to serve notice of a writ out of the jurisdiction shall limit a time within which the defendant to be served must enter an appearance, and the Court in fixing that time shall have regard to the place or country where or within which the notice of the writ is to be served.

6.Service of notice

Where leave is given under this Order to serve notice of a writ out of the jurisdiction, the notice shall subject to any direction given by the Court as to the manner in which such notice shall be served or brought to the notice of the defendant, be served in the manner in which writs are served.

7.Service of originating summons and other documents

The Court may allow service outside the jurisdiction of any originating process other than a writ, or of any summons, order, or notice in any proceedings duly instituted, whether by writ of summons or otherwise, and the provisions of Rules 3, 4, 5, and 6 of this Order shall apply, mutatis mutandis, to such service.

8.Saving of existing practice

Nothing contained in this Order shall prejudice or affect any practice or power of the Court under which, when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the Court may, without purporting to exercise jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings, with a view to such person having an opportunity of claiming, opposing, or otherwise intervening.

9.Service abroad through foreign governments, judicial authorities, and consuls

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

(a)the United Kingdom;

(b)any Commonwealth country mentioned in section 1(3) of the British Nationality Act 1948 of the United Kingdom;

(c)any British possession.

(2)Where in accordance with these Rules leave is given to serve notice of a writ on a defendant in any foreign country with which a Convention in that behalf has been or shall be made and extended to the Commonwealth of Australia or the State of Western Australia, the notice may be served — 

(a)through the judicial authorities of that country; or

(b)through a British or Australian diplomatic or consular agent in that country (subject to any provision of the Convention as to the nationality of persons who may be so served).

(3)Where notice of a writ is to be served on a defendant in a country with which a Convention has not been made, the notice may be served — 

(a)through the government of that country, if the government is willing to effect service; or

(b)through a British or Australian diplomatic or consular agent in that country except where service through such an authority is contrary to the law of that country.

(4)Where a person wishes to serve notice of a writ by a method mentioned in paragraph (2) or (3) he shall lodge in the Central Office a request for service of notice of the writ by that method, together with a copy of the notice and an additional copy thereof for each person to be served.

(5)Every copy of a notice lodged under paragraph (4) shall be accompanied by a translation of the notice in the official language of the country in which service is to be effected, or if there is more than one official language of that country, in any one of those languages which is appropriate to the place in that country where service is to be effected: Provided that this paragraph does not apply where the copy of the notice is to be served in a country the official language of which is, or the official languages of which include English, or is to be served by a British or Australian diplomatic or consular agent on a British subject or an Australian citizen, unless the Convention expressly requires the copy to be accompanied by a translation.

(6)Every translation required by paragraph (5) shall be certified by the person making it to be a correct translation, and the certificate shall state his full name and address and his qualifications for making the translation.

(7)The document to be served shall be sealed with the seal of the Supreme Court for use out of the jurisdiction and shall be forwarded by the Principal Registrar to the Attorney General for Western Australia for transmission through the diplomatic channel to the foreign country.

(8)An official certificate transmitted to the Court through the diplomatic channel by the British or Australian diplomatic or consular agent, or by the foreign government or judicial authorities establishing the fact and the date of the service of the document shall be deemed to be sufficient proof of such service, and shall be filed of record and be equivalent to an affidavit of service within the requirements of these Rules in that behalf. Any document purporting to be such a certificate shall, until the contrary is proved, be deemed to be such a certificate.

(9)Where an official certificate is produced pursuant to paragraph (8) in relation to the service of a notice of a writ under this Rule, no indorsement of service under Order 9 Rule 1(4) shall be required.

[Rule 9 amended in Gazette 14 Dec 1979 p. 3869.]

10.Service abroad: general and saving provisions

(1)Subject to Rule 9(9) and to the following provisions of this Rule Order 9 Rule 1 and Order 72 Rule 4 shall apply in relation to the service of a writ or notice of a writ, notwithstanding that the writ or notice is to be served out of the jurisdiction.

(2)Nothing in this Rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.

(3)A writ or notice of a writ which is to be served out of the jurisdiction — 

(a)need not be served personally on the person required to be served, if it is served on him in accordance with the law of the country in which service is effected; and

(b)need not be served by the plaintiff or his agent if it is served by a method provided for by Rule 9.

(4)Rule 9 shall not apply to or render invalid or insufficient any mode of service in any foreign country with which a Convention has been or shall be made which is otherwise valid or sufficient according to the procedure of the Supreme Court and which is not expressly excluded by the Convention.

11.Undertaking to pay expenses of service

Every request lodged under Rule 9(4) must contain an undertaking by the person making the request to be responsible personally for all expenses incurred in respect of the service requested, and on receiving due notification of the amount of those expenses to pay that amount into the Central Office forthwith.

Order 11  — Service of foreign process

1A.Application

This Order shall not apply to service of foreign legal process pursuant to a request from a competent authority in a foreign country which is a party to the Hague Convention.

[Rule 1A inserted in Gazette 7 Feb 1992 p. 676.]

1.Definitions

In this Order — 

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

process includes a citation.

2.Service of foreign legal process

(1)This Rule applies to the service of any process required to be served in any civil or commercial proceedings pending before a court or other tribunal of a foreign country where a letter of request from such a tribunal for service on a person in Western Australia of any such process sent with the letter is received by the Principal Registrar through an official channel.

(2)In order that service may be effected under this Rule the letter of request must be accompanied by a translation thereof in English, by 2 copies of the process to be served and by 2 copies of a translation of the process in English.

(3)Subject to Rule 4 and to any Act which provides for the manner in which documents may be served on bodies corporate, service of the process shall be effected by leaving a copy of it and of the translation with the person to be served.

(4)The Principal Registrar shall transmit through the official channel to the tribunal making the request, a certificate establishing the fact, and the date of service, or stating the reasons for which it has not been possible to effect service, and in the certificate shall certify the amount properly payable for effecting or attempting to effect service. The certificate shall be sealed with the seal of the Supreme Court for use out of the jurisdiction.

[Rule 2 amended in Gazette 14 Dec 1979 p. 3869.]

3.Service under Convention

(1)This Rule applies to the service of any process required to be served in any civil or commercial proceedings pending before a court or other tribunal of a foreign country with which a Convention in that behalf has been or shall be made and extended to the Commonwealth of Australia or the State of Western Australia where a letter of request from a consular or other authority of that country requesting service on a person in Western Australia of any such process sent with the letter is received by the Principal Registrar.

(2)In order that service may be effected under this Rule the letter of request must be accompanied by a copy of a translation in English of the process to be served.

(3)Subject to any Act which provides for the manner in which documents may be served on bodies corporate and to any special provisions of the Convention, service of the process shall be effected by leaving the original process or a copy of it, as indicated in the letter of request, and a copy of the translation with the person to be served.

(4)When service of the process has been effected or if attempts to effect service have failed, the process server shall leave with the Principal Registrar an affidavit made by the person who served or attempted to serve, the process stating when, where and how he did or attempted to do so, and a statement of the costs incurred in effecting or attempting to effect service.

(5)The Principal Registrar shall transmit to the consular or other authority by whom the request for service was made a certificate certifying that the process or a copy thereof as the case may be, was served on the person, at the time and in the manner specified in the certificate, or if such be the case, that service of the process could not be effected for the reason so specified, and certifying the amount properly payable for effecting or attempting to effect, service. The certificate shall be sealed with the seal of the Supreme Court for use out of the jurisdiction.

[Rule 3 amended in Gazette 14 Dec 1979 p. 3869.]

4.Service to be through sheriff

Service of process under the provisions of this Order shall be effected through the sheriff by the process server whom he may from time to time appoint for that purpose, or his authorised agent.

5.Consequential orders

Upon the application of the State Solicitor, with the consent of the Attorney General, the Court may make all such orders for substituted service or otherwise as are necessary to give effect to the Rules of this Order.

[Rule 5 amended in Gazette 19 Apr 2005 p. 1298.]

Order 11A  — Service of foreign judicial process originating in a country that is a party to the Hague Convention

[Heading inserted in Gazette 7 Feb 1992 p. 676.]

1.Definitions

In this Order — 

additional authority means a person being an officer of the Court designated by the Commonwealth of Australia, to be an authority in addition to the Central Authority, for the purposes of the Hague Convention;

applicant, in relation to a request for service, means the competent authority that forwards that request to a Central Authority or additional authority;

Central Authority means a person or body designated by the Commonwealth of Australia from time to time to be the Central Authority for the Commonwealth for the purposes of the Hague Convention;

civil proceedings means any judicial proceedings in respect of civil or commercial matters, other than criminal proceedings;

competent authority, in relation to a document to be served, means an authority or judicial officer competent, under the law of the Convention country in which the document originates, to forward a request for service;

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

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

request for service, in relation to a document originating in a Convention country means a request in writing, in accordance with Form 5A or Form 5B in the Second Schedule, made by a competent authority requesting that the document be served on a person in the State.

[Rule 1 inserted in Gazette 7 Feb 1992 p. 676‑7.]

2.Application

(1)Subject to subrule (2) and Rule 3, this Order applies to the service in the State of any document originating in a Convention country and connected with civil proceedings pending before a court or other tribunal of that Convention country where a request for service (together with accompanying documents) in accordance with Rule 3 is forwarded by a competent authority — 

(a)to the Central Authority, which forwards it to an additional authority in the State; or

(b)to an additional authority in the State.

(2)Where the request for service is forwarded to an additional authority in the State in accordance with paragraph (1)(b) and (in the opinion of the additional authority) — 

(a)compliance with the request for service may infringe Australia’s sovereignty or security; or

(b)the document to which the request for service relates is not a judicial document,

the additional authority shall transmit the request for service and accompanying documents to the Central Authority.

(3)Where the Central Authority returns the request for service and the accompanying documents to the additional authority, this Order shall then apply to the service in the State of the document to which the request relates.

[Rule 2 inserted in Gazette 7 Feb 1992 p. 677.]

3.Request for service and accompanying documents

(1)This Order shall not apply to a request for service unless it is accompanied by the following documents:

(a)a copy of the request for service;

(b)the document to be served;

(c)a copy of the document to be served;

(d)a summary (in accordance with Form 5D in the Second Schedule) of the document to be served; and

(e)where — 

(i)a document referred to in paragraph (a), (b) or (d) is not in the English language; and

(ii)the request for service does not contain a request that the service be by delivery to the person to be served, if that person accepts such service voluntarily,

an English translation of the document.

(2)An English translation of a document referred to in paragraph (1)(e) shall, unless the additional authority otherwise directs, bear a certificate in English by the translator stating that the translation is an accurate translation of the document.

[Rule 3 inserted in Gazette 7 Feb 1992 p. 677‑8.]

4.Service

(1)If a request for service is received by an additional authority in the State, together with the accompanying documents referred to in Rule 3, the additional authority must request the sheriff to serve the document to be served, together with such of those documents referred to in Rule 3(1)(a), (d) and (e) as accompanied the request for service (including a warning statement, if any, attached to the summary of the document to be served), in accordance with the request.

(2)Subject to subrule (3) the sheriff, in giving effect to the request of the additional authority, may cause the service requested to be effected by one of the following methods of service — 

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

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

(ii)where there is no such corresponding document — for the service of originating process in proceedings in the Court; or

(b)by some other method requested by the applicant in the request for service, unless that method is incompatible with the law in force in the State; or

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

(3)Rule 4 of Order 72 shall apply to the service of documents under this Order, except that the Court may make an order for substituted service of the document on the basis of an affidavit or affidavits, lodged by the sheriff with the Court made by the person or persons who attempted to serve the document specifying — 

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

(b)the reasons which have prevented service,

without an application being made to the Court in that behalf.

[Rule 4 inserted in Gazette 7 Feb 1992 p. 678.]

5.Affidavit of service

Where service of the document to be served has been effected or attempts to serve it have failed, the sheriff must lodge with the additional authority an affidavit made by the person who served, or attempted to serve, the document specifying — 

(a)where the document has been served — 

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

(ii)the place where the document was served;

(iii)the method of service;

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

(v)the way in which that person was identified;

and

(b)where the document has not been served — 

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

(ii)the reasons which have prevented service.

[Rule 5 inserted in Gazette 7 Feb 1992 p. 679.]

6.Certificate of service

When an affidavit of service has been filed in accordance with Rule 5, the additional authority must — 

(a)complete a certificate of service, sealed with the seal of the Court, in accordance with Form 5E in the Second Schedule on the reverse side of, or attached to, the request for service; and

(b)send the certificate of service directly to the applicant.

[Rule 6 inserted in Gazette 7 Feb 1992 p. 679.]

7.Application of Rules generally

To the extent that these Rules (other than the Rules under this Order) are inconsistent with the Rules under this Order, the first‑mentioned Rules do not apply to the service of a document to which this Order applies.

[Rule 7 inserted in Gazette 7 Feb 1992 p. 679.]

Order 11B  — Service of judicial process in a country that is a party to the Hague Convention

[Heading inserted in Gazette 7 Feb 1992 p. 679.]

1.Definitions

(1)In this Order — 

applicant, in relation to a request for service, means the Registrar who forwards that request to a foreign Central Authority or foreign additional authority;

designated authority, in relation to a Convention country, means a person or body designated by the Convention country, for the purposes of Article 6 of the Hague Convention, to be an authority competent to complete a certificate of service;

foreign additional authority, in relation to a Convention country, means a person or body designated by the Convention country, for the purposes of Article 18 of the Hague Convention, to be an authority in addition to a foreign Central Authority of that Convention country;

foreign Central Authority, in relation to a Convention country, means a person or body designated by the Convention country from time to time to be a Central Authority for the purposes of Article 2 of the Hague Convention.

(2)In this Order, Convention country, civil proceedings and Hague Convention have the same meaning as in Order 11A.

[Rule 1 inserted in Gazette 7 Feb 1992 p. 679‑80.]

2.Application

(1)Subject to subrule (2), this Order applies to the service in a Convention country of a judicial document connected with civil proceedings pending before the Court or before another court of the State.

(2)This Order does not apply where service of a document is effected by an Australian diplomatic or consular authority on a person in a Convention country.

[Rule 2 inserted in Gazette 7 Feb 1992 p. 680.]

3.Records

(1)The Registrar shall keep at the Registry a Register containing —

(a)a current list of all Convention countries;

(b)details of any objections or declarations made by any Convention country;

(c)the names and addresses of — 

(i)the foreign Central Authority, or Central Authorities; and

(ii)any additional authorities,

of each Convention country; and

(d)a copy of the Hague Convention.

(2)A document that purports to be an extract from the Register referred to in subrule (1) shall be evidence of the matters stated in it.

[Rule 3 inserted in Gazette 7 Feb 1992 p. 680.]

4.Documents required to be filed

(1)A person (in this Order called the requesting party) who requires a judicial document connected with civil proceedings in Australia to be served in a Convention country must file with the Registrar the following documents — 

(a)an application, in accordance with subrule (2), requesting service of the document in a specified Convention country;

(b)a request for service, in accordance with subrule (3), for signature by the Registrar;

(c)the document to be served;

(d)a summary (in accordance with Form 5D in the Second Schedule) of the document to be served;

(e)a warning statement (in accordance with Form 5F in the Second Schedule attached to, or incorporated in, the summary referred to in paragraph (d)) indicating the importance of the document to be served, its legal nature, that it may affect the rights and obligations of the person on whom it is served and the possibility of legal aid or advice being available;

(f)2 copies of the documents referred to in paragraphs (b), (c), (d) and (e); and

(g)where a foreign Central Authority of the country to which the request is addressed requires the document to be served, to be written in, or translated into, an official language of that country, a translation, into an official language of that country, of the documents referred to in paragraphs (b), (c), (d) and (e).

(2)The application requesting service of the document shall contain a written undertaking, signed by — 

(a)where there is a solicitor on the record for the requesting party — that solicitor; and

(b)in any other case — the requesting party;

to — 

(c)be personally liable for all costs that are incurred in relation to the service of the document requested to be served, by — 

(i)the employment of a judicial officer or other person competent, under the law of the Convention country in which the document is to be served; or

(ii)the use of a particular method of service;

and

(d)pay the amount of those costs to the Registrar within 14 days of receiving notification of the amount of those costs from the Registrar.

(3)The request for service referred to in paragraph (1)(b) must — 

(a)be in accordance with Form 5C in the Second Schedule; and

(b)be completed (except for signature) by the requesting party; and

(c)state whether the requesting party wants service to be attempted where the period for entering an appearance has expired; and

(d)indicate where additional information may be obtained regarding the address of the person to be served, if the person cannot be traced from the address supplied; and

(e)be addressed to — 

(i)a foreign Central Authority; or

(ii)a foreign additional authority,

of the Convention country in which the person is to be served,

and may state whether the requesting party requires a certificate of service that is completed by a person or body other than a foreign Central Authority or a judicial authority of the Convention country to be countersigned by a foreign Central Authority or a judicial authority of that country.

(4)A translation referred to in paragraph (1)(g) shall bear a certificate (in the same language as the language used in the translation) signed by the translator stating — 

(a)that the translation is an accurate translation of the document; and

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

[Rule 4 inserted in Gazette 7 Feb 1992 p. 680‑2.]

5.Procedure on filing application requesting service etc.

(1)Where the documents referred to in Rule 4 are filed with the Registrar, the Registrar shall, if he or she is satisfied that the documents comply with the requirements of this Order — 

(a)sign the request for service; and

(b)forward — 

(i)the request for service, duly signed;

(ii)the document to be served;

(iii)the documents referred to in Rule 4(1)(d) and (e) and where appropriate the documents referred to in Rule 4(1)(g); and

(iv)a copy of the documents referred to in subparagraphs (i), (ii) and (iii);

to — 

(v)where the requesting party has asked for the request to be addressed to a foreign additional authority nominated by the requesting party — that additional authority; or

(vi)in any other case — a foreign Central Authority in the Convention country in which service of the document is requested.

(2)Where the Registrar is not satisfied that the filed documents comply with the requirements of this Order he or she must inform the requesting party of the respects in which the documents fail to comply with those requirements.

[Rule 5 inserted in Gazette 7 Feb 1992 p. 682.]

6.Procedure on receipt of certificate in respect of service

(1)When a certificate in respect of service, being a certificate in accordance with Form 5E in the Second Schedule that has been completed by a foreign Central Authority or a designated authority in the Convention country in which service was requested, is received by a Registrar, the Registrar shall — 

(a)file the original certificate of service in the record of the proceedings in respect of which the request was made; and

(b)send a copy of the certificate to the solicitor for the requesting party, or where there is no solicitor on the record for the requesting party, to the requesting party.

(2)When the Registrar receives from the Convention country in which service of the document was requested a statement of costs in respect of the service requested being costs of a kind referred to in Rule 4(2) the Registrar shall send to the solicitor or requesting party, as the case may be, who gave the undertaking referred to in Rule 4(2) a notification of the amount of those costs incurred.

[Rule 6 inserted in Gazette 7 Feb 1992 p. 682‑3.]

7.Payment of costs

(1)The solicitor or requesting party, as the case may be, must, upon receipt of notification under Rule 6(2), pay the amount of the costs to the Registrar within 14 days of receipt of the notification.

(2)If the solicitor or requesting party fails to pay the costs requested within 14 days of the receipt of the notification — 

(a)the requesting party may not take any further action in the proceedings until those costs are paid to the Registrar under subrule (1); and

(b)the Registrar may take such steps as he or she considers appropriate to enforce the undertaking for payment of those costs.

[Rule 7 inserted in Gazette 7 Feb 1992 p. 683.]

8.Evidence of service

Where a Registrar receives a certificate of service in accordance with Rule 6 certifying that service of the document to be served was effected on a specified date, the certificate shall be sufficient proof that — 

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

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

[Rule 8 inserted in Gazette 7 Feb 1992 p. 683.]

9.Application of Rules generally

To the extent that these Rules (other than the Rules under this Order) are inconsistent with the Rules under this Order, the first‑mentioned Rules do not apply to the service of a document to which, under Rule 2, this Order applies.

[Rule 9 inserted in Gazette 7 Feb 1992 p. 683.]

Order 11C  — Judgments in default of appearance where originating process is transmitted for service under the Hague Convention

[Heading inserted in Gazette 7 Feb 1992 p. 683.]

1.Definitions

(1)In this Order — 

defendant, in relation to a request for service abroad of an originating process, means the person on whom that originating process was requested to be served;

originating process means a document by which proceedings are commenced;

proceedings includes a claim against a third party;

service abroad of an originating process means the service under Order 11B in a Convention country, of an originating process in civil proceedings pending before the Court.

(2)In this Order — 

(a)Convention country, civil proceedings and Hague Convention have the same meaning as in Order 11A; and

(b)designated authority, foreign additional authority and foreign Central Authority have the same meaning as in Order 11B.

[Rule 1 inserted in Gazette 7 Feb 1992 p. 683‑4.]

2.Application

This Order applies to the entry of judgments in default of appearance where an originating process has been transmitted under Rule 5(1)(b) of Order 11B to a foreign Central Authority or a foreign additional authority.

[Rule 2 inserted in Gazette 7 Feb 1992 p. 684.]

3.Power to enter judgment in default of appearance where a certificate of service has been filed

(1)Judgment in default of appearance may not be entered unless —

(a)the originating process was served — 

(i)by a method of service prescribed by the internal law of the Convention country in which service was effected for the service of documents in domestic actions upon persons who are within its territory;

(ii)by some other method requested in the request for service, where such a method is compatible with the law in force in the Convention country in which service was effected and under which the document was actually delivered to the defendant or his residence; or

(iii)by delivery to the defendant who accepted it voluntarily;

and

(b)the originating process was served in sufficient time to enable the defendant to defend the proceedings.

(2)In subrule (1)(b), sufficient time means 42 days or such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to defend the proceedings.

[Rule 3 inserted in Gazette 7 Feb 1992 p. 684.]

4.Filing of certificate of service deemed to be compliance with certain other Rules

The filing of a certificate of service under Rule 6(1)(a) of Order 11B is deemed to be sufficient compliance with any Rule requiring details of service of an originating process to be indorsed on the originating process.

[Rule 4 inserted in Gazette 7 Feb 1992 p. 684; amended in Gazette 26 Aug 1994 p. 4414.]

5.Power to enter judgment in default of appearance where a certificate of service has not been filed

Where, in relation to a request for service abroad of an originating process, a certificate of service has not been received by the Registrar, the Court may enter judgment in default of appearance by the defendant if the Court is satisfied that — 

(a)the originating process was transmitted to a foreign Central Authority or foreign additional authority under Rule 5(1)(b) of Order 11B;

(b)a period that the Court considers adequate in the circumstances of the particular case (being a period of not less than 6 months) has elapsed since the date on which originating process was so transmitted; and

(c)every reasonable effort has been made to obtain such a certificate from the foreign Central Authority, or foreign additional authority to which the originating process was transmitted, or other competent authority of the Convention country in which service was requested to be effected.

[Rule 5 inserted in Gazette 7 Feb 1992 p. 684‑5.]

6.Interlocutory Orders

Rule 5 does not limit the Court’s powers to make interlocutory, provisional or protective orders.

[Rule 6 inserted in Gazette 7 Feb 1992 p. 685.]

7.Setting aside a judgment in default of appearance

(1)Where a judgment has been entered under Rule 5 against a defendant who has not appeared, the Court may, on the application of the defendant, set aside the judgment if it is satisfied that the defendant — 

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

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

(2)An application to have a judgment set aside under this Rule may be brought only within such period of time after the defendant acquires knowledge of the judgment as the Court considers reasonable in the circumstances.

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

[Rule 7 inserted in Gazette 7 Feb 1992 p. 685.]

8.Application of Rules generally

(1)Subject to subrule (2), to the extent that these Rules (other than the Rules under this Order) are inconsistent with the Rules under this Order, the first‑mentioned Rules do not apply to the entry of judgments in default of appearance to which, under Rule 2, this Order applies.

(2)The power of the Court to enter judgment in default of appearance under this Order against a person who is under a disability is subject to the provisions of these Rules that restrict the Court’s power to enter judgment in default of appearance against such a person.

[Rule 8 inserted in Gazette 7 Feb 1992 p. 685.]

Order 12  — Appearance

1.Mode of entering appearance

(1)Subject to paragraph (2) and to Order 70 Rule 2, a defendant to an action may (whether or not he is sued as a trustee or personal representative or in any other representative capacity) enter an appearance in the action and defend it by a solicitor 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 solicitor.

(3)A defendant shall enter his appearance in the Central Office.

(4)An appearance is entered by properly completing a memorandum of appearance as defined by Rule 2, and a copy thereof and delivering both documents to the Registrar.

(5)If 2 or more defendants to an action enter an appearance by the same solicitor and at the same time, only one set of the requisite documents need be completed and delivered for those defendants.

[Rule 1 amended in Gazette 7 Oct 1977 p. 3602.]

2.Memorandum of appearance

(1)A memorandum of appearance is a request to the Registrar to enter an appearance for the defendant or defendants specified in the memorandum.

(2)A memorandum of appearance must be in Form No. 6, and both the memorandum of appearance and the copy thereof required for entering an appearance must be signed by the solicitor by whom the defendant appears or, if the defendant appears in person, by the defendant.

(3)A memorandum of appearance must specify — 

(a)in the case of a defendant appearing in person the address of his place of residence and a place to be his address for service, which shall not be more than 66 kilometres from the Supreme Court at Perth;

(b)in the case of a defendant appearing by a solicitor, the business address of the solicitor, and if that address is more than 66 kilometres from the said Court, a place not more than 66 kilometres from the said Court which shall be the address for service of the defendant.

(4)Where the defendant enters an appearance by a solicitor who is acting as agent for another solicitor having a place of business within the jurisdiction, the memorandum of appearance must state that the first‑­named solicitor so acts and must also state the name and address of that other solicitor.

(5)Where the memorandum of appearance of a defendant appearing in person does not contain an address for service as required by paragraph (3) it shall not be received, and if the Court, on the application of the plaintiff, is satisfied that any such address is illusory or fictitious, the appearance may be set aside.

[Rule 2 amended in Gazette 7 Dec 1973 p. 4489; 31 Mar 1983 p. 1090.]

3.Procedure on receipt of requisite documents

On receiving the requisite documents the proper officer must in all cases affix to the copy of the memorandum of appearance an official stamp showing the date on which he received those documents, enter the appearance in the Cause Book, and then return the copy of the memorandum to the person entering the appearance and the copy memorandum so stamped shall be a certificate that the appearance was entered on the day indicated on the official stamp.

[Rule 3 amended in Gazette 15 Jun 1973 p. 2247.]

4.Notice of appearance

On the day on which he enters an appearance to a writ, a defendant shall give notice of his appearance to the plaintiff’s solicitor, or if the plaintiff sues in person, to the plaintiff himself, by serving in the ordinary way at the address for service, or by prepaid letter directed to that address and posted on the day of entering appearance in due course of post, the stamped copy memorandum.

5.Late appearance

(1)A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the Court.

(2)Except as provided by paragraph (1), nothing in these Rules or any writ or order thereunder shall be construed as preventing a defendant from entering an appearance in an action after the time limited for appearing, but if a defendant enters an appearance after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time.

6.Conditional appearance

(1)A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, or the service of the originating process, or notice thereof, on the ground of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this Rule.

(2)The defendant shall forthwith apply to the Court to have the question raised by his conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the Court otherwise orders, become and operate as an unconditional appearance.

7.Setting aside service before appearance

A defendant to an action may at any time before entering an appearance therein, serve notice of motion to set aside the writ or service of the writ, or notice of the writ on him or discharging any order giving leave to serve the writ or notice on him out of the jurisdiction.

8.Person not named may defend for land

Any person not named as a defendant in a writ for the recovery of land may, by leave of the Court, appear and defend on filing an affidavit showing that he has an interest in the land which would be prejudiced or frustrated if an order for recovery were made without his being a party.

9.Person appearing to be named as defendant

Where a person not named as a defendant in a writ for the recovery of land has obtained leave of the Court to appear and defend he shall in all subsequent proceedings be named as a party defendant to the action.

10.Limited defence and notice thereof

(1)Any person appearing to a writ for the recovery of land may limit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty in his memorandum of appearance or in a notice intituled in the action and signed by him or his solicitor, and such notice shall be served within 4 days after appearance, and an appearance where the defence is not so limited shall be deemed an appearance to defend for the whole.

(2)The notice mentioned in paragraph (1) shall be in accordance with Form No. 7.

Order 13  — Default of appearance to writ

1.Affidavit of service

(1)Judgment shall not be entered against a defendant under this Order unless — 

(a)an affidavit is filed by or on behalf of the plaintiff proving due service of the writ or notice of the writ on the defendant and due indorsement of service in accordance with Order 9 Rule 1(4); or

(b)the plaintiff produces the writ indorsed by the defendant’s solicitor with a statement that he accepts service of the writ on the defendant’s behalf.

(2)Where, in an action begun by writ, an application is made to the Court for an order affecting a party who has failed to enter an appearance, the Court hearing the application may require to be satisfied in such manner as it thinks fit that the party is in default of appearance.

2.Claim for liquidated demand

(1)Where the writ is indorsed with a claim for a liquidated demand only, then, if a defendant fails to enter an appearance to the writ, the plaintiff may, after the time limited for appearance has expired, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand, and for costs.

(2)For the purpose of this Rule, a claim is not a claim other than for a liquidated demand by reason only that part of it is for interest under section 32 of the Act at a rate that is not higher than that payable on judgment debts at the date of the writ.

[Rule 2 inserted in Gazette 30 Nov 1984 p. 3952.]

3.Where liquidated demand judgment against several defendants

Where the writ is indorsed with a claim for a liquidated demand only, and there are several defendants of whom one or more appear to the writ and another or others of them fail to appear, the plaintiff may enter final judgment as in Rule 2 against such as have not appeared and may issue execution upon such judgment without prejudice (except where the defendants are sued in the alternative) to his right to proceed with his action against such as have appeared.

4.Claim in detinue

(1)Where the writ is indorsed with a claim relating to the detention of goods only, then, if a defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, at his option enter either — 

(a)interlocutory judgment against that defendant for the delivery of the goods or their value to be assessed and costs; or

(b)interlocutory judgment against him for the value of the goods to be assessed and costs,

and proceed with the action against the other defendants, if any.

(2)On an interlocutory judgment under this Rule against a defendant or all the defendants, if more than one, the value of the goods shall be assessed by a Master, unless the Court otherwise directs.

[Rule 4 amended in Gazette 30 Nov 1984 p. 3951.]

5.Claim for possession of land

(1)Where the writ is indorsed with a claim against a defendant for possession of land only, then if that defendant fails to enter an appearance within the time limited, the plaintiff may, on producing a certificate from his solicitor, or, if he sues in person an affidavit, stating that he is not claiming any relief in the action of the nature specified in Order 62A Rule 1, enter judgment for possession of the land against that defendant and the costs, and proceed in the action against the other defendants if any.

(2)Where there is more than one defendant, judgment entered under this Rule shall not be enforced against any defendant unless and until judgment for possession of the land has been entered against all the defendants.

[Rule 5 amended in Gazette 10 Jan 1975 p. 50 8.]

6.Mixed claims

Where the writ is indorsed with 2 or more of the claims mentioned in Rules 2, 3, 4, 5, and 7, and no other claim, then if a defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter against that defendant such judgment in respect of any such claim as he would be entitled to enter under those Rules if that were the only claim made by him against the defendant, and proceed with the action against the other defendants, if any.

[Rule 6 amended in Gazette 15 Jun 1973 p. 2247.]

7.Claims for damages

(1)Where the writ is indorsed with a claim against a defendant for unliquidated damages only, and that defendant fails to enter an appearance within the time limited for appearing, the plaintiff shall be entitled to enter interlocutory judgment against that defendant and obtain an order for directions for the assessment of damages, and proceed with the action against the other defendants, if any.

(2)The plaintiff shall at least 7 days before the day fixed for the assessment of the damages serve notice of the appointment for hearing on the party against whom the judgment has been given.

(3)Notwithstanding anything in Order 72 Rule 8 a notice under this Rule must be served on the party against whom the judgment has been given, unless the writ was served on that party by substituted service, and his address is unknown to the plaintiff.

8.Other cases

(1)Where the plaintiff’s claim against any defendant is of a description not mentioned in Rules 2, 3, 4, 5, and 7, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, and upon filing an affidavit proving due service of the writ on that defendant, and where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, apply to the Court on motion for judgment.

(1A)On an application under paragraph (1) the applicant or his solicitor must produce a certificate issued by the proper officer on the day of the hearing stating that no appearance has been entered by the defendant against whom it is sought to enter judgment.

(2)Where the plaintiff’s claim is aforesaid, but by reason of the defendant’s satisfying the claim or complying with the demands thereof, or any other like reason it has become unnecessary for the plaintiff to proceed with the action, then if the defendant fails to enter an appearance the plaintiff may, after the time limited for appearing, enter judgment with the leave of the Court against that defendant for costs. The application for such leave shall be by summons which must unless the Court otherwise orders and notwithstanding anything in Order 72 Rule 8, be served on the defendant against whom it is sought to enter judgment.

[Rule 8 amended in Gazette 15 Jun 1973 p. 2247; 24 Jun 1977 p. 1914.]

9.Reference to Court in case of doubt

In any case in which the plaintiff claims to be entitled under the Rules of this Order to enter final or interlocutory judgment in default of the defendant’s appearance, a Master may, if any doubt or difficulty arises, direct that the application for leave to enter judgment be brought before the Court on motion or by summons.

[Rule 9 amended in Gazette 30 Nov 1984 p. 3952.]

10.Setting aside judgment

The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.

Order 14  — Summary judgment

1.Plaintiff’s application for summary judgment

(1)Where in an action to which this Order applies a statement of claim has been served on a defendant and that defendant has entered an appearance, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such claim, or has no defence to such a claim or part except as to the amount of any damages claimed, within 21 days after appearance or at any later time by leave of the Court, apply to the Court for judgment against that defendant.

(2)This Order applies to every action begun by writ other than a probate or admiralty action.

[Rule 1 amended in Gazette 5 Jun 1992 p. 2279; 28 Oct 1996 p. 5675.]

2.Application to be by summons

(1)An application under Rule 1 shall be made by summons supported by an affidavit verifying the facts on which the claim or the part of the claim to which the application relates is based, and stating that in the deponent’s belief there is no defence to that claim or part thereof, as the case may be, or no defence except as to the amount of any damages claimed.

(2)Unless the Court otherwise directs, an affidavit for the purposes of this Rule may contain statements of information or belief with the sources and grounds thereof.

(3)The summons and a copy of the affidavit in support and of any exhibits therein referred to shall be served on the defendant not less than 7 days before the return day of the summons.

[Rule 2 amended in Gazette 3 Oct 1975 p. 3769.]

3.Judgment may be given for plaintiff

(1)On the hearing of an application under Rule 1 unless the Court dismisses the application, or the defendant satisfies the Court with respect to the claim, or the part of the claim, to which the application relates that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against the defendant on that claim or part thereof as may be just, having regard to the nature of the remedy or relief claimed.

(2)The Court may, by order and subject to such conditions, if any, as may be just, stay execution of any judgment given against a defendant under this Rule until after the trial of any counterclaim made or raised by the defendant in the action.

4.Leave to defend

(1)A defendant may show cause against an application under Rule 1 by affidavit or otherwise to the satisfaction of the Court.

(2)Rule 2(2) applies mutatis mutandis for the purposes of this Rule.

(3)The Court may give a defendant against whom such an application is made leave to defend the action with respect to the claim, or the part of a claim to which the application relates, either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit.

(4)On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary, or other similar officer thereof, or any person purporting to act in such capacity — 

(a)to produce any document; or

(b)if it appears to the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.

[5.Repealed in Gazette 28 Oct 1996 p. 5675.]

6.Summary judgment on counterclaim

(1)Where a defendant in an action begun by writ has served a counterclaim on the plaintiff, then subject to paragraph (3) the defendant may, on the ground that the plaintiff has no defence to a claim made in the counterclaim, or to a particular part of such claim, apply to the Court for judgment against the plaintiff on that claim or part.

(2)Rules 2, 3 and 4 apply in relation to an application under this Rule as they apply in relation to an application under Rule 1, but with the following modifications, that is to say — 

(a)references to the plaintiff and defendant shall be construed as references to defendant and plaintiff respectively;

(b)the words in Rule 3(2) “any counterclaim made or raised by the defendant in” shall be omitted; and

(c)the reference in Rule 4(3) to the action shall be construed as a reference to the counterclaim to which the application under this Rule relates.

(3)This Rule shall not apply to a counterclaim which includes any such claim as is referred to in Rule 1(2).

7.Directions

Where the Court — 

(a)gives leave (whether conditional or unconditional) to defend any action or counterclaim, as the case may be, with respect to a claim or a part of a claim; or

(b)gives judgment for a plaintiff or a defendant on a claim or a part of a claim, but also orders that execution of the judgment be stayed pending the trial of a counterclaim or of the action, as the case may be,

the Court may give all such directions as to the further conduct of the action as might be given on a summons for directions under Order 29, and may direct that the affidavit filed by the defendant or the plaintiff, as the case may be, under this Order, shall serve in lieu of defence and may order the action to be forthwith set down for trial, and may define the issues that are to be tried.

8.Costs

(1)If the plaintiff makes an application under Rule 1 and the case is not within this Order, or if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, the Court may dismiss the application with costs, and may require the costs to be paid by the plaintiff forthwith.

(2)The Court shall have the same power to dismiss an application under Rule 6 as it has under paragraph (1) to dismiss an application under Rule 1, and that paragraph shall apply accordingly with the necessary modifications.

[Rule 8 amended in Gazette 15 Jun 1973 p. 2248.]

9.Right to proceed with residue of action or counterclaim

(1)Where on an application under Rule 1 the plaintiff obtains judgment on a claim or a part of a claim against any defendant, he may proceed with the action as respects any other claim, or as respects the remainder of the claim or against any other defendant.

(2)Where on an application under Rule 6 a defendant obtains judgment on a claim or part of a claim made in a counterclaim against the plaintiff, he may proceed with the counterclaim as respects any other claim or as respects the remainder of the claim or against any other defendant to the counterclaim.

10.Judgment for delivery of specific chattel

Where the claim to which an application under Rule 1 or Rule 6 relates is for the delivery up of a specific chattel, and the Court gives judgment under this Order for the applicant, the Court shall have the same power to order the party against whom judgment is given to deliver up the chattel without giving him an option to retain it on paying the assessed value thereof as if the judgment had been given after trial.

11.Relief from forfeiture

A tenant shall have the same right to relief after a judgment under this Order for the recovery of land on the ground of forfeiture as if the judgment had been given after trial.

12.Setting aside judgment

Any judgment given against a party who does not appear at the hearing of an application under Rule 1 or Rule 6 may be set aside or varied by the Court on such terms as it thinks just.

[Order 15 repealed in Gazette 28 Oct 1996 p. 5675.]

Order 16  — Summary judgment on application of defendant

1.Defendant may apply for summary judgment

(1)Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order — 

(a)that judgment be entered for the defendant with or without costs; or

(b)that the plaintiff shall proceed to trial without pleadings,

or if all parties consent, may dispose of the action finally and without appeal in a summary manner.

(2)An application under paragraph (1) shall be made by summons supported by affidavit verifying the facts upon which the application is based.

(3)Unless the Court otherwise directs, an affidavit for the purposes of this Rule may contain statements of information or belief with the sources and grounds thereof.

(4)The summons and a copy of the affidavit in support and its annexures, if any, shall be served on the plaintiff not less than 7 days before the return day of the summons.

[Rule 1 amended in Gazette 14 Dec 1979 p. 3869; 5 Jun 1992 p. 2279‑80.]

2.Plaintiff may show cause

(1)The plaintiff may show cause against such application by affidavit.

(1a)Unless the Court otherwise directs, an affidavit for the purposes of this Rule may contain statements of information or belief with the sources and grounds thereof.

Attendance for examination

(2)The Court may if it thinks fit, order the plaintiff or the defendant or in the case of a corporation any officer thereof to attend and be examined and cross‑examined upon oath or to produce any papers, books, or documents, or copies of, or extracts therefrom.

[Rule 2 amended in Gazette 14 Dec 1979 p. 3869; 5 Jun 1992 p. 2280.]

3.Directions

If the Court directs that the action shall proceed to trial, it may give all such directions as to the further conduct of the action as might be given on a summons for directions under Order 29 and may order that the action be forthwith set down for trial.

[Rule 3 amended in Gazette 14 Dec 1979 p. 3869.]

4.Judgment may be set aside or varied

Any judgment given against a party who does not appear at the hearing of the application under Rule 1 may be set aside or varied by the Court on such terms as it thinks just.

[Rule 4 inserted in Gazette 5 Jun 1992 p. 2280.]

Order 17  — Interpleader

1.Relief by way of interpleader

Relief by way of interpleader may be granted by the Court — 

(a)where the person seeking relief (called the applicant) is under liability — 

(i)to yield up or give possession of any land; or

(ii)to perform a contract; or

(iii)for any debt or money; or

(iv)to yield up goods or chattels or any document, muniment of title, or security,

in respect of which he is or expects to be sued by 2 or more parties (called the claimants) making adverse claims; or

(b)where the applicant is the sheriff or other officer charged with the execution of process under the authority of the Court, and claim is made to any land, goods, chattels, or money taken or intended to be taken in execution, or to the proceeds or value of any such land, goods, or chattels by any person other than the person against whom the process is issued.

2.Mode of application

(1)An application for relief under this Order must be made by originating summons unless made in a pending action, in which case it must be made by summons in the action.

(2)No appearance need be entered to an originating summons under this Rule.

(3)Subject to paragraph (4) a summons under this Rule must be supported by evidence that the applicant — 

(a)claims no interest in the subject‑matter in dispute other than for charges and costs;

(b)does not collude with any of the claimants to that subject‑matter; and

(c)is willing to dispose of any property involved in such manner as the Court or a Judge may direct.

(4)Where the applicant is the sheriff he shall not provide such evidence as is referred to in paragraph (3) unless the Court directs him to do so.

3.Time for application by defendant

Where the applicant is a defendant, application for relief may be made at any time after the service of the writ.

4.Stay of proceedings

If the application is made by a defendant the Court may stay all further proceedings.

5.Order on summons

If the claimants appear in pursuance of the summons the Court or a Judge may order either that any claimant be made a defendant in any action already commenced in respect of the subject‑matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may give directions as to which of the claimants is to be plaintiff and which defendant, and as to the method of trial and such other directions as may be necessary in the circumstances.

6.Summary determination

The Court may, with the consent of both claimants or on the request of any claimant, or if the applicant is the sheriff, dispose of the merits of the claims and decide the same in a summary manner.

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.Claim etc. to goods taken in execution

(1)Where a claim is made to any property taken in execution it must be in writing and the claimant must indorse thereon an address for service which must not be more than 66 kilometres from the Court at Perth, where notices and other documents in the proceedings not required to be served on the claimant personally may be served on him.

(2)Upon the receipt of the claim the sheriff or his officer must forthwith give notice thereof to the execution creditor (Form No. 8), and the execution creditor must within 14 days after receiving the notice give notice to the sheriff or his officer whether he admits or disputes the claim (Form No. 9). If the execution creditor admits the title of the claimant and gives notice as directed by this Rule he shall only be liable to the sheriff or officer for any fees and expenses incurred prior to the receipt of the notice admitting the claim.

[Rule 12 amended in Gazette 15 Jun 1973 p. 2247; 7 Dec 1973 p. 4489; 31 Mar 1983 p. 1090; 26 Jan 1993 p. 824.]

13.Withdrawal by sheriff

When the execution creditor has given notice to the sheriff or his officer that he admits the claim of the claimant, the sheriff may thereupon withdraw from possession of the property claimed, and may obtain an order protecting him from any action in respect of the seizure and possession.

14.Application by the sheriff

(1)Where the execution creditor does not within the time prescribed by Rule 12(2) admit the title of the claimant to the property, or where the execution creditor disputes the claimant’s title, and the claimant does not withdraw his claim by notice in writing to the sheriff or his officer, the sheriff may issue an interpleader summons; and service of the summons upon the claimant may be effected by leaving it at or posting it to his address for service, or, where the claimant has no address for service, by posting the summons to him at his last known address.

(2)Should the claimant withdraw his claim by notice in writing to the sheriff, or his officer, or the execution creditor serve an admission of the title of the claimant prior to the return day of such summons, and at the same time give notice of such admission to the claimant, the Judge may make all necessary orders as to costs and expenses.

[Rule 14 amended in Gazette 15 Jun 1973 p. 2248.]

15.Other powers of the Court

Subject to the foregoing Rules of this Order, the Court may in and for the purposes of any interpleader proceedings make such order as to costs or any other matter as it thinks just.

Order 18  — Causes of action, counterclaims and parties

1.Joinder of causes of action

(1)Subject to Rule 5(1), a plaintiff may in one action claim relief against the same defendant in respect of more than one cause of action — 

(a)if the plaintiff claims, and the defendant is alleged to be liable, in the same capacity in respect of all the causes of action; or

(b)if the plaintiff claims or the defendant is alleged to be liable in the capacity of executor or administrator of an estate in respect of one or more of the causes of action and in his personal capacity but with reference to the same estate in respect of all the others; or

(c)with the leave of the Court.

(2)An application for leave under this Rule must be made ex parte by affidavit before the issue of the writ and the affidavit must state the grounds of the application.

2.Counterclaim against plaintiff

(1)Subject to Rule 5(2), a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counterclaim in respect of that matter; and where he does so he must add the counterclaim to his defence.

(2)Rule 1 shall apply in relation to a counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.

(3)A counterclaim may be proceeded with notwithstanding that judgment is given for the plaintiff in the action or that the action is stayed, discontinued or dismissed.

(4)Where a defendant establishes a counterclaim against the claim of the plaintiff and there is a balance in favour of one of the parties, the Court may give judgment for the balance, so, however, that this provision shall not be taken as affecting the Court’s discretion with respect to costs.

3.Counterclaim against additional parties

(1)Where a defendant to an action who makes a counterclaim against the plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the plaintiff in respect of the subject‑matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject‑matter of the action then, subject to Rule 5(2), he may join that other person as a party against whom the counterclaim is made.

(2)Where a defendant joins a person as a party against whom he makes a counterclaim, he must add that person’s name to the title of the action and serve on him a copy of the counterclaim; and a person on whom a copy of a counterclaim is served under this paragraph shall, if he is not already a party to the action, become a party to it as from the time of service with the same rights in respect of his defence to the counterclaim and otherwise as if he had been duly sued in the ordinary way by the party making the counterclaim.

(3)A defendant who is required by paragraph (2) to serve a copy of the counterclaim made by him on any person who before service is already a party to the action must do so within the period within which by virtue of Order 20, Rule 4, he must serve on the plaintiff the defence to which the counterclaim is added.

(4)Where by virtue of paragraph (2) a copy of a counterclaim is required to be served on a person who is not already a party to the action, the following provisions of these Rules, namely, Order 9 except Rule 1(4), Order 10 except Rule 3, Order 12 and Order 13 shall, subject to the last foregoing paragraph, apply in relation to the counterclaim and the proceedings arising from it as if — 

(a)the counterclaim were a writ and the proceedings arising from it an action; and

(b)the party making the counterclaim were a plaintiff and the party against who it is made a defendant in that action.

(5)A copy of a counterclaim required to be served on a person who is not already a party to the action must be indorsed with a notice, in Form No. 10, addressed to that person — 

(a)stating the effect of Order 12, Rule 1, as applied by paragraph (4); and

(b)specifying the appropriate office for the entry of appearance by that person to the counterclaim.

4.Joinder of parties

(1)Subject to Rule 5(1), 2 or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where — 

(a)if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

(b)all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.

(2)Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any Act and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this paragraph, be made a defendant.

This paragraph shall not apply to a probate action.

(3)Where relief is claimed in an action against a defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant to the action; but where persons are jointly, but not severally, liable under a contract and relief is claimed against some but not all of those persons in an action in respect of that contract, the Court may, on the application of any defendant to the action, by order stay proceedings in the action until the other persons so liable are added as defendants.

5.Court may order separate trials, etc.

(1)If claims in respect of 2 or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if 2 or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient.

(2)If it appears on the application of any party against whom a counterclaim is made that the subject‑matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient.

6.Misjoinder and nonjoinder of parties

(1)No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application — 

(a)order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b)order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,

but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(3)An application by any person for an order under paragraph (2) adding him as a defendant must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter.

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

(1)Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy.

(2)Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first‑mentioned party.

An application for an order under this paragraph may be made ex parte.

(3)An order may be made under this Rule for a person to be made a party to a cause or matter notwithstanding that he is already a party to it on the other side of the record, or on the same side but in a different capacity; but — 

(a)if he is already a party on the other side, the order shall be treated as containing a direction that he shall cease to be a party on that other side; and

(b)if he is already a party on the same side but in another capacity, the order may contain a direction that he shall cease to be a party in that other capacity.

(4)The person on whose application an order is made under this Rule must procure the order to be noted in the Cause Book and after the order has been so noted that person must, unless the Court otherwise directs, serve the order on every other person who is a party to the cause or matter or who becomes or ceases to be a party by virtue of the order and serve with the order on any person who becomes a defendant a copy of the writ or originating summons by which the cause or matter was begun.

(5)Any application to the Court by a person served with an order made ex parte under this Rule for the discharge or variation of the order must be made within 14 days after the service of the order on that person.

8.Provisions consequential on making of order under Rule 6 or 7

(1)Where an order is made under Rule 6, the writ by which the action in question was begun must be amended accordingly and must be indorsed with — 

(a)a reference to the order in pursuance of which the amendment is made; and

(b)the date on which the amendment is made,

and the amendment must be made within such period as may be specified in the order or, if no period is so specified, within 14 days after the making of the order.

(2)Where by an order under Rule 6 a person is to be made a defendant, the rules as to service of a writ of summons shall apply accordingly to service of the amended writ on him, but before serving the writ on him the person on whose application the order was made must procure the order to be noted in the Cause Book.

(3)Where by an order under Rule 6 or 7 a person is to be made a defendant, the rules as to entry of appearance shall apply accordingly to entry of appearance by him, subject, in the case of a person to be made a defendant by an order under Rule 7, to the modification that the time limited for appearing shall begin with the date on which the order is served on him under Rule 7(4) or, if the order is not required to be served on him, with the date on which the order is noted in the Cause Book.

(4)Where by an order under Rule 6 or 7 a person is to be added as a party or is to be made a party in substitution for some other party, that person shall not become a party until — 

(a)where the order is made under Rule 6, the writ has been amended in relation to him under this Rule and (if he is a defendant) has been served on him; or

(b)where the order is made under Rule 7, the order has been served on him under Rule 7(4) or, if the order is not required to be served on him, the order has been noted in the Cause Book,

and where by virtue of the foregoing provision a person becomes a party in substitution for some other party, all things done in the course of the proceedings before the making of the order shall have effect in relation to the new party as they had in relation to the old, except that entry of appearance by the old party shall not dispense with entry of appearance by the new party.

9.Failure to proceed after death of party

(1)If after the death of a plaintiff or defendant in any action the cause of action survives, but no order under Rule 7 is made substituting as plaintiff any person in whom the cause of action vests or, as the case may be, the personal representatives of the deceased defendant, the defendant or, as the case may be, those representatives may apply to the Court for an order that unless the action is proceeded with within such time as may be specified in the order the action shall be struck out as against the plaintiff or defendant, as the case may be, who has died; but where it is the plaintiff who has died, the Court shall not make an order under this Rule unless satisfied that due notice of the application has been given to the personal representatives (if any) of the deceased plaintiff and to any other interested persons who, in the opinion of the Court, should be notified.

(2)Where in any action a counterclaim is made by a defendant, this Rule shall apply in relation to the counterclaim as if the counterclaim were a separate action and as if the defendant making the counterclaim were the plaintiff and the person against whom it is made a defendant.

10.Actions for possession of land

(1)Without prejudice to Rule 6, the Court may at any stage of the proceedings in an action for possession of land order any person not a party to the action who is in possession of the land (whether in actual possession or by a tenant) to be added as a defendant.

(2)An application by any person for an order under this Rule may be made ex parte, supported by an affidavit showing that he is in possession of the land in question and if by a tenant, naming him.

(3)A person added as a defendant by an order under this Rule must serve a copy of the order on the plaintiff and must enter an appearance in the action within such period, if any, as may be specified in the order or, if no period is so specified, within 7 days after the making of the order, and the rules as to entry of appearance shall apply accordingly to entry of appearance by him.

11.Relator actions

(1)Before the name of any person is used in any action as a relator, that person must give to his solicitor a written authorisation so to use his name and the authorisation must be filed.

(2)In all relator actions the plaintiff shall file with the writ or other originating process, the consent of the Attorney General to the action being brought.

12.Representative proceedings

(1)Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in Rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2)At any stage of proceedings under this Rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued, to represent all, or all except one or more, of those persons in the proceedings; and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order under Rule 6 adding that person as a defendant.

(3)A judgment or order given in proceedings under this Rule shall be binding on all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.

(4)An application for the grant of leave under paragraph (3) must be made by summons which must be served personally on the person against whom it is sought to enforce the judgment or order.

(5)Notwithstanding that a judgment or order to which any such application relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.

(6)The Court hearing an application for the grant of leave under paragraph (3) may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in an action may be tried and determined.

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

(1)In any proceedings concerning — 

(a)the administration of the estate of a deceased person; or

(b)property subject to a trust; or

(c)the construction of a written instrument, including a statute or a regulation, rule or by‑law made under a statute,

the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in paragraph (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings.

(2)The conditions for the exercise of the power conferred by paragraph (1) are as follows — 

(a)that the person, the class or some member of the class, cannot be ascertained or cannot readily be ascertained;

(b)that the person, class or some member of the class, though ascertained, cannot be found;

(c)that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purpose of saving expense.

(3)Where in any proceedings to which paragraph (1) applies, the Court exercises the power conferred by that paragraph, a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall be binding on the person or class represented by the person or persons so appointed.

(4)Where, in any such proceedings, a compromise is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons) but — 

(a)there is some other person in the same interest before the Court who assents to the compromise or on whose behalf the Court sanctions the compromise; or

(b)the absent persons are represented by a person appointed under paragraph (1) who so assents,

the Court, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non‑disclosure of material facts.

14.Representation of beneficiaries by trustees, etc.

(1)Any proceedings, including proceedings to enforce a security by foreclosure or otherwise, may be brought by or against trustees, executors or administrators in their capacity as such without joining any of the persons having a beneficial interest in the trust or estate, as the case may be; and any judgment or order given or made in those proceedings shall be binding on those persons unless the Court in the same or other proceedings otherwise orders on the ground that the trustees, executors or administrators, as the case may be, could not or did not in fact represent the interests of those persons in the first‑mentioned proceedings.

(2)Paragraph (1) is without prejudice to the power of the Court to order any person having such an interest as aforesaid to be made a party to the proceedings or to make an order under Rule 13.

15.Representation of deceased person interested in proceedings

(1)Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.

(2)Before making an order under this Rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.

16.Declaratory judgment

No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.

17.Conduct of proceedings

The Court may give the conduct of any action, inquiry or other proceeding to such person as it thinks fit.

Order 19  — Third party and similar proceedings

1.Third party notice

(1)Where in any action a defendant who has entered an appearance claims against any person not already a party to the action (in this Order called the third party) — 

(a)that he is entitled to contribution or indemnity; or

(b)that he is entitled to any relief or remedy relating to or connected with the original subject‑matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or

(c)that any question or issue relating to or connected with the original subject‑matter of the action is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party,

then, subject to paragraph (2), the defendant may issue a notice in Form No. 11 or 12, whichever is appropriate (in this Order referred to as a third party notice), containing a statement of the nature of the claim made against him and, as the case may be, either of the nature and grounds of the claim made by him or of the question or issue required to be determined.

(2)A defendant to an action may not issue a third party notice without the leave of the Court unless he issues the notice before serving his defence on the plaintiff.

(3)Where a third party notice is served on the person against whom it is issued, he shall as from the time of service be a party to the action with the same rights in respect of his defence against any claim made against him in the notice and otherwise as if he had been duly sued in the ordinary way by the defendant by whom the notice is issued.

2.Application for leave to issue third party notice

(1)An application for leave to issue a third party notice may be made ex parte but the court may direct a summons for leave to be issued.

(2)An application for leave to issue a third party notice must be supported by an affidavit stating — 

(a)the nature of the claim made by the plaintiff in the action;

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

(c)the nature of the claim made by the applicant or particulars of the question or issue required to be determined, as the case may be, and the facts on which the proposed third party notice is based; and

(d)the name and address of the person against whom the third party notice is to be issued.

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

(1)The order granting leave to issue a third party notice may contain directions as to the period within which the notice is to be issued.

(2)There must be served with every third party notice a copy of the writ by which the action was begun and of the pleadings (if any) served in the action.

(3)Subject to the foregoing provisions of this Rule, the following provisions of these Rules, namely, Order 5 Rules 7, 8 and 11, Order 9 except Rule 1(4), Order 10 except Rule 3 and Order 12, shall apply in relation to a third party notice and to the proceedings begun thereby as if — 

(a)the third party notice were a writ and the proceedings begun thereby an action; and

(b)the defendant issuing the third party notice were a plaintiff and the person against whom it is issued a defendant in that action.

[Rule 3 amended in Gazette 7 Oct 1977 p. 3602.]

4.Third party directions

(1)If the third party enters an appearance, the defendant who issued the third party notice must, within 10 days of the appearance of the third party, by summons to be served on all the other parties to the action, apply to the Court for directions.

(2)If a summons is not served on the third party under paragraph (1), the third party may, not earlier than 7 days after entering an appearance, by summons to be served on all the other parties to the action, apply to the Court for directions or for an order to set aside the third party notice.

(3)On an application for directions under this Rule the Court may — 

(a)if the liability of the third party to the defendant who issued the third party notice is established on the hearing, order such judgment as the nature of the case may require to be entered against the third party in favour of the defendant; or

(b)order any claim, question or issue stated in the third party notice to be tried in such manner as the Court may direct; or

(c)dismiss the application and terminate the proceedings on the third party notice,

and may do so either before or after any judgment in the action has been signed by the plaintiff against the defendant.

(4)On an application for directions under this Rule the Court may give the third party leave to defend the action, either alone or jointly with any defendant, upon such terms as may be just, or to appear at the trial and to take such part therein as may be just, and generally may make such orders and give such directions as appear to the Court proper for having the rights and liabilities of the parties most conveniently determined and enforced and as to the extent to which the third party is to be bound by any judgment or decision in the action.

(5)The Court may at any time vary or rescind any order made or direction given under this Rule.

[Rule 4 amended in Gazette 26 Aug 1994 p. 4410.]

5.Default of third party, etc.

(1)If a third party does not enter an appearance or, having been ordered to serve a defence, fails to do so — 

(a)he shall be deemed to admit any claim stated in the third party notice and shall be bound by any judgment (including judgment by consent) or decision in the action in so far as it is relevant to any claim, question or issue stated in that notice; and

(b)the defendant by whom the third party notice was issued may, if judgment in default is given against him in the action, at any time after satisfaction of that judgment and, with the leave of the Court before satisfaction thereof, enter judgment against the third party in respect of any contribution or indemnity claimed in the notice, and, with the leave of the Court, in respect of any other relief or remedy claimed therein.

(2)If a third party or the defendant by whom a third party notice was issued makes default in serving any pleading which he is ordered to serve, the Court may, on the application by summons of that defendant or the third party, as the case may be, order such judgment to be entered for the applicant as he is entitled to on the pleadings or may make such other order as may appear to the Court necessary to do justice between the parties.

(3)The Court may at any time set aside or vary a judgment entered under paragraph (1)(b) or paragraph (2) on such terms (if any) as it thinks just.

6.Setting aside third party proceedings

Proceedings on a third party notice may, at any stage of the proceedings, be set aside by the Court.

7.Judgment between defendant and third party

(1)Where in any action a defendant has served a third party notice, the Court may at or after the trial of the action or, if the action is decided otherwise than by trial, on an application by summons or motion, order such judgment as the nature of the case may require to be entered for the defendant against the third party or for the third party against the defendant.

(2)Where in an action judgment is given against a defendant and judgment is given for the defendant against a third party, execution shall not issue against the third party except as to costs, without the leave of the Court until the judgment against the defendant has been satisfied at least to the extent of the third party liability which he claims to enforce under the judgment.

8.Claims and issues between a defendant and some other party

(1)Where in any action a defendant who has entered an appearance — 

(a)claims against a person who is already a party to the action any contribution or indemnity; or

(b)claims against such a person any relief or remedy relating to or connected with the original subject‑matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or

(c)requires that any question or issue relating to or connected with the original subject‑matter of the action should be determined not only as between the plaintiff and himself but also as between either or both of them and some other person who is already a party to the action,

then, subject to paragraph (2), the defendant may, without leave, issue and serve on that person a notice containing a statement of the nature and grounds of his claim or, as the case may be, of the question or issue required to be determined.

(2)Where a defendant makes such a claim as is mentioned in paragraph (1) and that claim could be made by him by counterclaim in the action, paragraph (1) shall not apply in relation to the claim.

(3)No appearance to such a notice shall be necessary if the person on whom it is served has entered an appearance in the action or is a plaintiff therein, and the same procedure shall be adopted for the determination between the defendant by whom, and the person on whom, such a notice is served of the claim, question or issue stated in the notice as would be appropriate under this Order if the person served with the notice were a third party and (where he has entered an appearance in the action or is a plaintiff) had entered an appearance to the notice.

(4)Rule 4(2) shall have effect in relation to proceedings on a notice issued under this Rule as if for the words “7 days after entering an appearance” there were substituted the words “14 days after service of the notice on him”.

9.Claims by third and subsequent parties

(1)Where a defendant has served a third party notice and the third party makes such a claim or requirement as is mentioned in Rule 1 or Rule 8, this Order shall, with the modification mentioned in paragraph (2) and any other necessary modifications, apply as if the third party were a defendant; and similarly where any further person to whom by virtue of this Rule this Order applies as if he were a third party makes such a claim or requirement.

(2)The modification referred to in paragraph (1) is that paragraph (3) shall have effect in relation to the issue of a notice under Rule 1 by a third party in substitution for Rule 1(2).

(3)A third party may not issue a notice under Rule 1 without the leave of the Court unless he issues the notice before the expiration of 14 days after the time limited for appearing to the notice issued against him.

10.Offer of contribution

If, before the trial of an action, a party to the action who, either as a third party or as one of 2 or more tortfeasors liable in respect of the same damage, stands to be held liable in the action to another party to contribute towards any debt or damages which may be recovered against that other party in the action, makes (without prejudice to his defence) a written offer to that other party to contribute to a specified extent to the debt or damages, then, notwithstanding that he reserves the right to bring the offer to the attention of the Judge at the trial, the offer shall not be brought to the attention of the Judge until after all questions of liability and amount of debt or damages have been decided.

11.Counterclaim by defendant

Where in any action a counterclaim is made by a defendant, the foregoing provisions of this Order shall apply in relation to the counterclaim as if the subject‑matter of the counterclaim were the original subject‑matter of the action, and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.

12.Costs

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

Order 20  — Pleadings

1.Service of Statement of Claim

Unless the Court gives leave to the contrary or a Statement of Claim is indorsed on the writ, the plaintiff must serve a statement of claim on the defendant or, if there are 2 or more defendants, on each defendant, and must do so either when the writ or notice of the writ, is served on that defendant or at any time after service of the writ or notice but before the expiration of 14 days after that defendant enters an appearance.

2.Statement of Claim

(1)A Statement of Claim must state specifically the relief or remedy which the plaintiff claims, but costs need not be specifically claimed.

(2)A Statement of Claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.

(3)Subject to paragraph (2) a plaintiff may in his Statement of Claim alter, modify or extend any claim made by him in the indorsement of the writ without amending the indorsement.

(4)Except when indorsed on the writ every Statement of Claim must bear on its face a statement of the date on which the writ in the action was issued.

3.Pleadings, etc., to be filed before service

(1)Subject to paragraph (2) the original of every Statement of Claim, defence, set off, or counterclaim, and of every reply or subsequent pleading, and of any further particulars of any pleading, a copy of which is required by these Rules to be served on one party by another, must be filed before the copy is served, and the copy must be served within 24 hours after filing the original.

(2)This Rule does not apply where the Statement of Claim is indorsed on the writ.

4.Service of defence

(1)Subject to paragraph (2), a defendant who enters an appearance in, and intends to defend, an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for appearing or after the Statement of Claim is served on him, whichever is the later.

(2)If a summons under Order 14, Rule 1 is served on a defendant before he serves his defence, paragraph (1) shall not have effect in relation to him unless by the order made on the summons he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within 14 days after the making of the order or within such other period as may be specified therein.

5.Service of reply and defence to counterclaim

(1)A plaintiff on whom a defendant serves a defence must serve a reply on that defendant if it is needed for compliance with Rule 9, and if no reply is served, Rule 15(1) will apply.

(2)A plaintiff on whom the defendant serves a counterclaim must, if he intends to defend it, serve on that defendant a defence to counterclaim.

(3)Where a plaintiff serves both a reply and a defence to counterclaim on any defendant, he must include them in the same document.

(4)A reply to any defence must be served by the plaintiff before the expiration of 14 days after the service on him of that defence, and a defence to counterclaim must be served by the plaintiff before the expiration of 14 days after the service on him of the counterclaim to which it relates.

6.Pleadings subsequent to reply

No pleading subsequent to a reply or a defence to counterclaim shall be served except with the leave of the Court.

7.Pleadings: formal requirements

(1)Every pleading in an action must bear on its face — 

(a)the year in which the writ in the action was issued and the number of the action;

(b)the title of the action;

(c)the description of the pleading; and

(d)the date on which it was filed.

(2)Every pleading must, if necessary, be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph.

(3)Dates, sums and other numbers must be expressed in a pleading in figures and not in words.

(4)Every pleading of a party must be indorsed — 

(a)where the party sues or defends in person, with his name and address for service;

(b)in any other case, with the name or firm and address for service of the solicitor by whom it was filed and also (if the solicitor is the agent of another) the name or firm and business address of his principal.

(5)Every pleading of a party must be signed by counsel, if settled by him, and, if not, by the party’s solicitor or by the party, if he sues or defends in person.

(5A)It shall be a sufficient compliance with paragraph (5) if the pleading is signed by a solicitor who — 

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

(b)has settled the pleading;

(c)is authorised to sign the pleading on his principal’s behalf; and

(d)adds his own signature after the name of his firm.

(6)The date of service of a pleading must be stated on every copy which is served.

[Rule 7 amended in Gazette 15 Jun 1973 p. 2248.]

8.Facts, not evidence, to be pleaded

(1)Subject to the provisions of this Rule, and Rules 11, 12 and 13 every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.

(2)Without prejudice to paragraph (1), the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material.

(3)A party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleading.

(4)A statement that a thing has been done or that an event has occurred, being a thing or event the doing or occurrence of which, as the case may be, constitutes a condition precedent necessary for the case of a party is to be implied in his pleading.

9.Matters which must be specifically pleaded

(1)A party must in any pleading subsequent to a Statement of Claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality — 

(a)which he alleges makes any claim or defence of the opposite party not maintainable; or

(b)which, if not specifically pleaded, might take the opposite party by surprise; or

(c)which raises issues of fact not arising out of the preceding pleading.

(2)Without prejudice to paragraph (1), a defendant to an action for possession of land must plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient.

(3)A claim for exemplary damages or a claim for aggravated damages must be specifically pleaded together with the facts on which the party pleading relies.

(4)Where the plaintiff intends to claim interest, he must claim it specifically; and the Statement of Claim must — 

(a)identify that part of the claim or the components of the damages to which the claim for interest relates;

(b)where the claim for interest is founded on a contract, contain a statement in summary form of the material facts relied on;

(c)where the claim for interest is pursuant to a statute — 

(i)identify the statutory provision;

(ii)specify the rate claimed; and

(iii)state the date or dates from which interest is claimed.

[Rule 9 amended in Gazette 3 Oct 1975 p. 3769; 31 Mar 1983 p. 1090.]

10.Matter may be pleaded whenever arising

Subject to Rules 8(1) and 11, a party may in any pleading plead any matter which has arisen at any time, whether before or since the issue of the writ.

11.Departure

(1)A party shall not in any pleading make any allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his.

(2)Paragraph (1) shall not be taken as prejudicing the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative.

12.Points of law may be pleaded

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

13.Particulars of pleading

(1)Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words — 

(a)particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

(b)where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.

(2)Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed 3 folios, they must be set out in a separate document referred to in the pleading and the pleading must state whether the document has already been served and, if so, when, or is to be served with the pleading.

(3)The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just.

(4)Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party — 

(a)where he alleges knowledge, particulars of the facts on which he relies; and

(b)where he alleges notice, particulars of the notice.

(5)An order under this Rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.

(6)An order under this Rule shall not be made unless a written request for the particulars required by the applicant has been filed and served within 30 days of the service of the pleadings or such other time as the Court may allow.

(7)The party at whose instance particulars have been served under an order of the Court shall, unless the order otherwise provides, have the same length of time for pleading after the service of the particulars that he had at the return of the summons. Save as in this Rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time.

[Rule 13 amended in Gazette 26 Aug 1994 p. 4410.]

13A.Particulars in defamation actions

(1)Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of that sense.

(2)Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.

(3)Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice; but where the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.

(4)This Rule applies in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made were the defendant.

[Rule 13A inserted in Gazette 23 Sep 1983 p. 3797.]

14.Admissions and denials

(1)Subject to paragraph (4), any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under Rule 15 operates as a denial of it.

(2)A traverse may be made either by a denial or by a statement of non‑admission.

(3)Subject to paragraph (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement of non‑admission of them, is not a sufficient traverse of them.

(4)Any allegation that a party has suffered damage and any allegation as to the amount of damages is deemed to be traversed unless specifically admitted.

15.Denial by joinder of issue

(1)If there is no reply to a defence, there is an implied joinder of issue on that defence.

(2)Subject to paragraph (3) — 

(a)there is at the close of pleadings an implied joinder of issue on the pleading last served; and

(b)a party may in his pleading expressly join issue on the next preceding pleading.

(3)There can be no joinder of issue, implied or express, on a statement of claim or counterclaim.

(4)A joinder of issue operates as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation.

16.Defence of tender

Where in any action a defence of tender before action is pleaded, the defendant must pay into court in accordance with Order 24 the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until payment into court has been made.

17.Defence of set‑off

Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set‑off against the plaintiff’s claim, whether or not it is also added as a counterclaim.

18.Counterclaim and defence to counterclaim

Without prejudice to the general application of this Order to a counterclaim and a defence to counterclaim, or to any provision thereof which applies to either of those pleadings specifically —

(a)Rule 2(1) shall apply to a counterclaim as if the counterclaim were a statement of claim and the defendant making it a plaintiff;

(b)Rules 9(2), 16, and 17 shall, with the necessary modifications apply to a defence to counterclaim as they apply to a defence.

19.Striking out pleadings and indorsements

(1)The Court may at any stage of the proceedings, subject to paragraph (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that — 

(a)it discloses no reasonable cause of action or defence, as the case may be; or

(b)it is scandalous, frivolous or vexatious; or

(c)it may prejudice, embarrass or delay the fair trial of the action; or

(d)it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2)No evidence shall be admissible on an application under paragraph (1)(a).

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

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

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

(i)the subparagraph of paragraph (1) under which the application is made; and

(ii)those parts of the pleadings which the applicant seeks to have struck out;

and

(c)where the application is to strike out the entire pleading, clearly indicate that intention in the application.

[(4)repealed]

(5)Unless special circumstances are shown, an application to amend pleadings consequent upon an order striking the pleadings out, in whole or in part, shall be accompanied by a minute of the proposed amendment.

[Rule 19 amended in Gazette 26 Aug 1994 p. 4410‑11; 24 Jan 1995 p. 270; 9 Aug 1996 p. 3949.]

20.Close of pleadings

(1)Subject to paragraph (2) the pleadings in an action are deemed to be closed — 

(a)at the expiration of 14 days after service of the reply or, if there is no reply but only a defence to counterclaim, after service of the defence to counterclaim; or

(b)if neither a reply nor a defence to counterclaim is served, at the expiration of 14 days after service of the defence.

(2)Where the time for the service of a reply or defence to counterclaim or both is extended either by order of the Court or by written consent of the parties, or by the operation of Rule 13(7), the pleadings are deemed to be closed at the expiration of 14 days after such extended time has expired.

21.Trial without pleadings

(1)Where in an action to which this Rule applies any defendant has entered an appearance in the action, the plaintiff or that defendant may apply to the Court by summons for an order that the action shall be tried without pleadings or further pleadings, as the case may be.

(2)If, on the hearing of an application under this Rule, the Court is satisfied that the issues in dispute between the parties can be defined without pleadings or further pleadings, or that for any other reason the action can properly be tried without pleadings or further pleadings, as the case may be, the Court shall order the action to be so tried, and may direct the parties to prepare a statement of the issues in dispute or, if the parties are unable to agree to such a statement, may settle the statement itself.

(3)Where the Court makes an order under paragraph (2), it shall, and where it dismisses an application for such an order, it may, give such directions as to the further conduct of the action as may be appropriate, and Order 29 Rules 2 to 5 shall, with the omission of so much of Rule 5 as requires parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications, apply as if the application under this Rule were a summons for directions.

(4)This Rule applies to every action begun by writ other than one which includes — 

(a)a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or

(b)a claim by the plaintiff based on an allegation of fraud.

22.Preparation of issues

Where in any cause or matter it appears to the Court that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and such issues shall, if the parties differ, be settled by the Court.

23.Preliminary Act — collision between vessels

(1)In an action for damage by collision between vessels, unless the Court otherwise orders, the plaintiff or his solicitor must, within 7 days after the commencement of the action, and the defendant or his solicitor must, within 7 days after appearance and before any pleading is delivered, respectively file in the Central Office a document to be called a Preliminary Act.

(2)Every Preliminary Act shall be sealed up and, unless the Court otherwise orders, shall not be opened until the pleadings are closed and a consent signed by the respective parties or their solicitors that the Preliminary Acts shall be opened is filed in the Central Office.

(3)The Preliminary Act shall contain a statement of the following particulars — 

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

(ii)the date and time of the collision;

(iii)the place of the collision;

(iv)the direction and force of the wind;

(v)the state of the weather;

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

(vii)the course and speed of the vessel when the other was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier;

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

(ix)(a)the distance and bearing of the other vessel if and when her echo was first observed by radar;

(b)the distance, bearing and approximate heading of the other vessel when first seen;

(x)what light or combination of lights (if any) of the other vessel was first seen;

(xi)what other lights or combination of lights (if any) of the other vessel were subsequently seen before the collision, and when;

(xii)what alterations (if any) were made to the course and speed of the vessel after the earlier of the 2 times referred to in article (vii) up to the time of the collision, and when, and what measures (if any), other than alterations of course or speed, were taken to avoid the collision, and when;

(xiii)the parts of each vessel which first came into contact and the approximate angle between the 2 vessels at the moment of contact;

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

(xv)what sound signals (if any) were heard from the other vessel, and when.

(4)Where the Court orders the Preliminary Acts to be opened, the Court may further order the action to be tried without pleadings but, where the Court orders the action to be so tried, any party who intends to rely on the defence of compulsory pilotage must give notice of his intention to do so to the other parties within 7 days after the opening of the Preliminary Acts.

(5)Rule 1 shall not apply to an action in which Preliminary Acts are required but, unless the Court orders the action to be tried without pleadings, the plaintiff must serve a statement of claim on each defendant within 14 days after the latest date on which the Preliminary Act of any party to the action is filed.

24.Failure to lodge Preliminary Act

(1)Where in an action to which Rule 23 applies, the plaintiff fails to lodge a Preliminary Act within the time prescribed for that purpose by that Rule or by any order of the Court, any defendant who has lodged such an Act may apply to the Court by summons for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it thinks just.

(2)Where in such an action, being an action in personam, a defendant fails to lodge a Preliminary Act within the period prescribed for that purpose by Rule 23 or by any order of the Court, Order 22 Rules 2 and 3 shall apply as if the defendant’s failure to lodge the Preliminary Act within that period were a failure by him to serve a defence on the plaintiff within the period fixed by or under these Rules for service thereof, and the plaintiff may enter judgment against the defendant in accordance with the said Rule 2 or the said Rule 3, as the circumstances of the case require.

Order 21  — Amendment

1.Amendment of writ without leave

(1)Subject to paragraph (3), the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed.

(2)A writ amended under this Rule after service must, unless the Court otherwise directs on application, made ex parte, be served as amended on each defendant to the action.

(3)This Rule shall not apply in relation to an amendment which consists of — 

(a)the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued; or

(b)the addition or substitution of a new cause of action;

(c)without prejudice to Rule 3(1) an amendment of the statement of claim, if any, indorsed on the writ.

2.Amendment of appearance

A defendant may not amend his memorandum of appearance without the leave of the Court.

3.Amendment of pleadings without leave

(1)A party may, without the leave of the Court, amend any pleading of his once at any time before the pleadings are deemed to be closed and, where he does so, he must serve the amended pleading on the opposite party.

(2)Where an amended statement of claim is served on a defendant — 

(a)the defendant, if he has already served a defence on the plaintiff, may amend his defence; and

(b)the period for service of his defence or amended defence, as the case may be, shall be either the period fixed by or under these Rules for service of his defence or a period of 14 days after the amended statement of claim is served on him, whichever expires later.

(3)Where an amended defence is served on the plaintiff by a defendant — 

(a)the plaintiff, if he has already served a reply on that defendant, may amend his reply; and

(b)the period for service of his reply or amended reply, as the case may be, shall be 14 days after the amended defence is served on him.

(4)In paragraphs (2) and (3) references to a defence and a reply include references to a counterclaim and a defence to counterclaim respectively.

(5)Where an amended counterclaim is served by a defendant on a party (other than the plaintiff) against whom the counterclaim is made, paragraph (2) shall apply as if the counterclaim were a statement of claim and as if the party by whom the counterclaim is made were the plaintiff and the party against whom it is made a defendant.

(6)Where a party has pleaded to a pleading which is subsequently amended and served on him under paragraph (1), then, if that party does not amend his pleading under the foregoing provisions of this Rule, he shall be taken to rely on it in answer to the amended pleading, and Order 20, Rule 15(2) shall have effect in such a case as if the amended pleading had been served at the time when that pleading, before its amendment under paragraph (1), was served.

4.Application for disallowance of amendment made without leave

(1)Within 14 days after the service on a party of a pleading amended under Rule 3(1), that party may apply to the Court to disallow the amendment.

(2)Where the Court hearing an application under this Rule is satisfied that if an application for leave to make the amendment in question had been made under Rule 5 at the date when the amendment was made under Rule 3(1) leave to make the amendment or part of the amendment would have been refused, it shall order the amendment or that part to be struck out.

(3)Any order made on an application under this Rule may be made on such terms as to costs or otherwise as the Court thinks just.

5.Amendment of writ or pleading with leave

(1)Subject to — 

(a)Order 18 Rules 6, 7 and 8;

(b)Order 20 Rule 19(2) to (5); and

(c)the following provisions of this Rule,

the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.

(2)Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3)An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued.

(4)An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued.

(5)An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

[Rule 5 amended in Gazette 24 Jan 1995 p. 270.]

6.Amendment of other originating process

Rule 5 shall have effect in relation to an originating summons, and an originating motion as it has effect in relation to a writ.

7.Amendment of other documents

(1)For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2)This Rule shall not have effect in relation to a judgment or order.

8.Failure to amend after order

Where the Court makes an order under this Order giving any party leave to amend a writ, pleading or other document, then, if that party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the order or, if no period is so specified, of a period of 14 days after the order was made, the order shall cease to have effect, without prejudice, however, to the power of the Court to extend the period.

9.Mode of amendment

(1)Where the amendments authorised under any Rule of this Order to be made in a writ, pleading or other document are so numerous or of such nature or length that to make written alterations of the document so as to give effect to them would make it difficult or inconvenient to read, a fresh document, amended as so authorised and showing its original contents with the amendments written in red, or in such other manner as will distinguish the alterations from the original document or from any previous amendment, must be prepared, and in the case of a writ or originating summons re‑issued.

(2)Except as provided in paragraph (1), and subject to any direction given under Rules 5 or 7, the amendments so authorised shall be effected by writing the necessary alterations on the writ, pleading or other document in red or in such other manner as will distinguish the alterations from the original document or from any previous amendment, and in the case of a writ or originating summons, causing it to be re‑sealed and filing a copy thereof.

(3)A writ, pleading or other document which has been amended under this Order must be indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the Judge or Master by whom the order (if any) authorising the amendment was made, and the date thereof, or if no such order was made, the number of the Rule of this Order in pursuance of which the amendment was made.

(4)When any pleading has been amended such amended document must be filed and served on the opposite party not later than the day next following the day on which the pleading is amended, unless the opposite party has no address for service in which case, notwithstanding Order 72 Rule 8, the amended document must be served as soon as practicable after the amendment is made.

[Rule 9 amended in Gazette 24 Jan 1995 p. 272.]

10.Amendment of judgments and orders

Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.

Order 22  — Default of pleadings

1.Default in service of statement of claim

If the plaintiff, being required by these Rules to serve a statement of claim on a defendant fails to serve it on him within the time allowed by or under these Rules for that purpose, the defendant may after the expiration of that time, apply to the Court for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it thinks just.

2.Default of defence: claim for liquidated demand

(1)Where the plaintiff’s claim is against a defendant for a liquidated demand only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand, and for costs, and proceed with the action against the other defendants, if any.

(2)Order 13 Rule 2(2) shall apply for the purpose of this Rule as it applies for the purpose of that Rule.

[Rule 2 inserted in Gazette 30 Nov 1984 p. 3952‑3; amended in Gazette 20 Jun 1986 p. 2040.]

3.Claim for unliquidated damages

(1)Where the plaintiff’s claim against a defendant is for unliquidated damages only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, enter interlocutory judgment against that defendant and obtain an order for directions for the assessment of damages, and proceed with the action against the other defendants, if any.

(2)Order 13 Rule 7(2) and (3) shall apply for the purposes of this Rule as they apply for the purposes of that Rule.

4.Claim in detinue

Where the plaintiff’s claim against a defendant relates to the detention of goods only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, enter either — 

(a)interlocutory judgment against that defendant for the delivery of the goods or their value to be assessed and costs; or

(b)interlocutory judgment for the value of the goods to be assessed and costs,

and proceed with the action against the other defendants, if any.

5.Claim for possession of land

(1)Where the plaintiff’s claim against a defendant is for possession of land only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, on producing a certificate from his solicitor, or, if he sues in person an affidavit, stating that he is not claiming any relief in the action of the nature specified in Order 62A Rule 1 after the expiration of the period fixed by or under these Rules for service of the defence, enter judgment for possession of the land as against that defendant and for costs, and proceed with the action against the other defendants, if any.

(2)Where there is more than one defendant, judgment entered under this Rule shall not be enforced against any defendant unless and until judgment for possession of the land has been entered against all the defendants.

[Rule 5 amended in Gazette 10 Jan 1975 p. 50 8.]

6.Mixed claims

Where the plaintiff makes against a defendant 2 or more of the claims mentioned in Rules 2 to 5, and no other claim, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, enter against that defendant such judgment in respect of any such claim as he would be entitled to enter under those Rules if that were the only claim made, and proceed with the action against the other defendants, if any.

7.Other claims

(1)Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in Rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or failed to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

(1A)On an application under paragraph (1), the applicant or his solicitor must produce a certificate issued by the proper officer on the day of the hearing stating that no defence has been filed by the defendant against whom it is sought to enter judgment.

(2)Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one defendant, then, if one of the defendants makes default as mentioned in that paragraph, the plaintiff may — 

(a)if his claim against the defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or

(b)set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial, or is set down on motion for judgment, against the other defendants.

(3)An application under paragraph (1) must be by summons.

[Rule 7 amended in Gazette 15 Jun 1973 p. 2248.]

8.Default of defence to counterclaim

A defendant who counterclaims against a plaintiff shall be treated for the purposes of Rules 2 to 7 as if he were a plaintiff who had made against a defendant the claim made in the counterclaim and, accordingly, where the plaintiff or any other party against whom the counterclaim is made fails to serve a defence to counterclaim, those Rules shall apply as if the counterclaim were a statement of claim, the defence to counterclaim a defence and the parties making the counterclaim and against whom it is made were plaintiffs and defendants respectively and as if references to the period fixed by or under these Rules for service of the defence were references to the period so fixed for service of the defence to counterclaim.

9.Reference to Court

Order 13, Rule 9 applies mutatis mutandis to a claim by the plaintiff to enter final or interlocutory judgment under the provisions of this Order.

10.Setting aside judgment

The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.

Order 23  — Discontinuance

1.Withdrawal of appearance

A party who has entered an appearance in an action may withdraw the appearance at any time with the leave of the Court.

2.Plaintiff may discontinue: defence may be withdrawn

(1)The plaintiff may, at any time before receipt of the defendant’s defence, or after the receipt thereof before taking any other step in the action, by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant’s costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.

(2)The costs referred to in paragraph (1) shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.

(3)Save as in this Rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court, but the Court may before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out.

(4)The Court may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence or counterclaim, or any part thereof, without such leave.

3.Costs

Any defendant may enter judgment for the costs of the action, if it is wholly discontinued against him, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued, in case such respective costs are not paid within 4 days after taxation.

4.Subsequent action stayed pending payment

If any subsequent action shall be brought before payment of the costs of a discontinued action, for the same, or substantially the same, cause of action, the Court may, if it thinks fit, order a stay of such subsequent action, until such costs shall have been paid.

5.Withdrawal of summons

A party who has taken out a summons in a cause or matter may not withdraw it except by leave of the Court.

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

[1‑8.Repealed in Gazette 5 Apr 1991 p. 1398.]

9.In certain cases no payment out without order

(1)Subject to paragraph (2) money paid into court under an order of the Court, or certificate of a Master or a Registrar, shall not be paid out of court except in pursuance of an order of the Court.

(2)Unless the Court otherwise orders, a party who has paid money into court in pursuance of an order made under Order 14 — 

(a)may by notice to the other party appropriate the whole or any part of the money and any additional payment, if necessary, to any particular claim made in the statement of claim or counterclaim, as the case may be, and specified in the notice; or

(b)if he makes a plea of tender, may by his pleading appropriate the whole or any part of the money as payment into court of the money alleged to have been tendered; and money appropriated in accordance with this Rule shall be deemed to be money paid into court under Rule 1 or money paid into court with a plea of tender, as the case may be, and this Order shall apply accordingly.

[Rule 9 amended in Gazette 14 Dec 1979 p. 3869; 30 Nov 1984 p. 3951.]

[10.Repealed in Gazette 5 Apr 1991 p. 1398.]

11.Amounts under $7 500 may be paid without administration

Where the estate of a deceased person who has died intestate is entitled to a fund or to a share of a fund in court, not exceeding $7 500 and it is proved to the satisfaction of the Court — 

(a)that no administration to such deceased person’s estate has been taken out; and

(b)that his assets do not exceed the value of $7 500 including the amount of the fund or share to which the estate of such deceased person is entitled,

the Court may direct that such fund or share of a fund shall be paid, transferred or delivered to the person, who being the widower, widow, de facto partner of the deceased (immediately before the death), child, parent, brother or sister of the deceased would be entitled to take out administration.

[Rule 11 amended in Gazette 30 Nov 1984 p. 3953; 30 Jun 2003 p. 2631.]

12.Regulations

The manner of payment into and out of court and the manner in which money in court shall be dealt with shall be subject to the regulations contained in the Third Schedule.

Order 24A  — Offer of compromise

[Heading inserted in Gazette 5 Apr 1991 p. 1398.]

1.Mode of making offer

(1)An offer of compromise is made to a party under this Order by serving a notice of the offer on the party.

(2)A notice of offer shall — 

(a)be in writing; and

(b)bear a statement to the effect that the offer is made under this Order.

[Rule 1 inserted in Gazette 5 Apr 1991 p. 1398.]

2.Application

In any proceedings the plaintiff or the defendant may make to the other an offer to compromise any claim in the proceedings on the terms specified in the notice of offer.

[Rule 2 inserted in Gazette 5 Apr 1991 p. 1399.]

3.Time for making or accepting offer

(1)An offer may be made at any time before the time prescribed by paragraph (8) in respect of the claim to which it relates.

(2)A party may make more than one offer.

(3)An offer may be expressed to be limited as to the time it is open to be accepted but the time expressed shall not be less than 28 days after it is made.

(4)An offeree shall, within 3 days after service, serve a written acknowledgment of receipt on the offeror.

(5)An offeree may accept the offer by serving notice of acceptance in writing on the offeror before — 

(a)the expiration of the time specified in accordance with paragraph (3) or, if no time is specified, the expiration of 28 days after the offer is made; or

(b)the time prescribed by paragraph (8) in respect of the claim to which the offer relates,

whichever is sooner.

(6)An offer shall not be withdrawn during the time it is open to be accepted, unless the Court otherwise orders.

(7)An offer is open to be accepted within the period referred to in paragraph (5) notwithstanding that during that period the party to whom the offer (the first offer) is made makes an offer (the second offer) to the party who made the first offer whether or not the second offer is made in accordance with this Order.

(8)The time prescribed for the purposes of paragraphs (1) and (5) is — 

(a)where the trial is before a jury — after the Judge begins to sum up to the jury; or

(b)in any other case — after the Judge or Master gives his decision or begins to give his reasons for decision on a judgment (except an interlocutory judgment).

(9)Where an offer is accepted under this Rule, any party to the compromise may apply to the Court for such judgment or order as he may be entitled to and on the hearing of the application the Court shall give such judgment or make such order as it thinks fit.

[Rule 3 inserted in Gazette 5 Apr 1991 p. 1399; amended in Gazette 28 Feb 1992 p. 995; 30 Oct 1992 p. 5310.]

4.Time for payment

An offer to pay a sum of money to a plaintiff shall, unless the notice of offer otherwise provides, be taken to be an offer to pay that sum within 28 days after acceptance of the offer.

[Rule 4 inserted in Gazette 5 Apr 1991 p. 1399.]

5.Withdrawal of acceptance

(1)A party who accepts an offer may, by serving a notice of withdrawal on the offeror, withdraw the acceptance — 

(a)where the offer provides for payment of a sum of money and the sum is not paid into Court within 28 days after acceptance of the offer; or

(b)where the Court gives leave so to do.

(2)On withdrawal of an acceptance all steps in the proceedings taken in consequence of the acceptance shall have such effect only as the Court may direct.

(3)On withdrawal of an acceptance or on the motion for leave to withdraw an acceptance, the Court may — 

(a)give directions under paragraph (2);

(b)give directions for restoring the parties as nearly as may be to their positions at the time of the acceptance; and

(c)give directions for the further conduct of the proceedings.

[Rule 5 inserted in Gazette 5 Apr 1991 p. 1399.]

6.Offer without prejudice

An offer made in accordance with this Order shall be taken to have been made without prejudice, unless the notice of offer otherwise provides.

[Rule 6 inserted in Gazette 5 Apr 1991 p. 1399.]

7.Disclosure of offer to Court

(1)No statement of the fact that an offer has been made shall be contained in any pleading or affidavit.

(2)Where an offer has not been accepted, then, except as provided by Rule 10(8), no communication with respect to the offer shall be made to the Court at the trial until after all questions of liability and the relief to be granted have been determined.

(3)This Rule shall not apply where a notice of offer provides that the offer is not made without prejudice.

[Rule 7 inserted in Gazette 5 Apr 1991 p. 1399‑400.]

8.Failure to comply with accepted offer

(1)Where a party to an accepted offer fails to comply with the terms of the offer, then unless for special cause the Court otherwise orders, the other party — 

(a)shall be entitled to an order — 

(i)where the party in default is the plaintiff, that the proceedings be dismissed; and

(ii)where the party in default is the defendant, that the defence be struck out,

and in either case to judgment accordingly; or

(b)may apply to the Court for such judgment or order as he may be entitled to and on the hearing of the application the Court shall give such judgment or make such order as it thinks fit.

(2)Where a party to an accepted offer fails to comply with the terms of the offer, and a defendant in the proceeding has made a cross‑claim which is not the subject of the accepted offer, the Court may make such order or give such judgment under paragraph (1) and make such order that the proceeding on the cross‑claim be continued as it thinks fit.

[Rule 8 inserted in Gazette 5 Apr 1991 p. 1400; amended in Gazette 28 Feb 1992 p. 995.]

9.Multiple defendants

Where 2 or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a debt or damages and rights of contribution or indemnity appear to exist between the defendants, Rule 8 shall not apply to an offer unless — 

(a)in the case of an offer made by the plaintiff — the offer is made to all defendants, and is an offer to compromise the claim against all of them;

(b)in the case of an offer made to the plaintiff — 

(i)the offer is to compromise the claim against all defendants; and

(ii)where the offer is made by 2 or more defendants — by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the plaintiff for the whole amount of the offer.

[Rule 9 inserted in Gazette 5 Apr 1991 p. 1400.]

10.Costs

(1)Upon the acceptance of an offer of compromise in accordance with Rule 3(5), the plaintiff may, unless the Court otherwise orders, tax his costs in respect of the claim against the defendant up to and including the day the offer was accepted and, if the costs are not paid within 4 days after the signing of a certificate of the taxation, enter judgment against that defendant for the taxed costs.

(2)If a notice of offer contains a term which purports to negative or limit the operation of paragraph (1), that term shall be of no effect for any purpose under this Order.

(3)Paragraphs (4) to (6) apply to an offer which has not been accepted in the time prescribed by Rule 3(8).

(4)Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, taxed on an indemnity basis in addition to his costs incurred before that date, taxed on a party and party basis.

(5)Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim up to and including the day the offer was made, taxed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for his costs in respect of the claim thereafter, taxed on a party and party basis.

(6)For the purpose of paragraph (5), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the Court otherwise orders, the plaintiff shall be entitled to his costs in respect of the claim up to 11 a.m. on the day following the day on which the offer was made, taxed on a party and party basis, and the defendant shall be entitled to his costs in respect of the claim thereafter, taxed on a party and party basis.

(7)Where a plaintiff obtains judgment for the payment of a debt or damages and — 

(a)the amount for which judgment is given includes interest or damages in the nature of interest; or

(b)by or under any Act the Court awards the plaintiff interest or damages in the nature of interest in respect of the amount,

then, for the purpose of determining the consequences as to costs referred to in paragraphs (4) and (5), the Court shall disregard so much of the interest as relates to the period after the day the offer was made.

(8)For the purpose of paragraph (7), the Court may be informed of the fact that the offer was made, and of the date on which it was made, but shall not be informed of its terms.

(9)Paragraphs (4) and (5) shall not apply unless the Court is satisfied by the party making the offer that the party was at all material times willing and able to carry out what the party offered.

[Rule 10 inserted in Gazette 5 Apr 1991 p. 1400‑1; amended in Gazette 28 Feb 1992 p. 996.]

Order 25  — Security for costs

1.Security generally

The Court may order security for costs to be given by a plaintiff, but no order shall be made merely on account of the poverty of the plaintiff or the likely inability of the plaintiff to pay any costs which may be awarded against him.

2.Grounds for ordering

Without limiting the generality of the preceding Rule the Court may order security for costs to be furnished where the plaintiff — 

(a)is ordinarily resident out of the jurisdiction, notwithstanding that he may be temporarily within the jurisdiction;

(b)is about to depart from the jurisdiction;

(c)enjoys within the jurisdiction some privilege which renders him immune, wholly or partially, from the normal processes of execution;

(d)is an undischarged bankrupt or a person who has suspended, or given notice of suspension of, his debts;

(e)is a company in liquidation or under official management, or a company in respect of which a receiver of its property has been appointed;

(f)is a relator suing for the enforcement or declaration of some public right or to have some public trust carried out or some charitable scheme settled;

(g)is in default in respect of any costs ordered to be paid by him in any proceedings previously brought by him against the same defendant or another defendant for substantially the same cause of action or in relation to substantially the same subject matter;

(h)is a person who has in the past vexatiously brought litigation against the same defendant or against any other defendant;

(i)is suing the sheriff in respect of anything done or omitted to be done by the sheriff or his officers in the execution of any judgment of the Court.

3.Court has a discretion

The granting of security shall be in the discretion of the Court, and in determining whether an order should be made the Court shall take into consideration — 

(a)the prima facie merits of the claim;

(b)what property within the jurisdiction may be available to satisfy any order for costs against the plaintiff;

(c)whether the normal processes of the Court would be available within the jurisdiction for enforcement of any order for costs made against the plaintiff.

4.Definition

In this Order the term plaintiff shall include a defendant counterclaiming in respect of a claim not arising out of the claim made against him.

5.Manner of giving security

In fixing security the Court shall direct the form and manner in which the security is to be given and may from time to time vary the amount and form of the security.

6.Action may be stayed

Where security is ordered the action or other proceedings shall be stayed until the security is furnished, unless the Court otherwise orders.

7.Payment out

Where money has been paid into court as security for costs and the action has been finally disposed of, the amount of the security shall be paid out to the party for whose security it was furnished to the extent pro tanto that costs are due from the securer to such party, and the Principal Registrar shall pay out the security accordingly unless the Court has otherwise ordered, and the balance (if any) shall be refunded to the securer without the necessity for any special order.

[Rule 7 amended in Gazette 14 Dec 1979 p. 3869.]

8.Saving

This Order is without prejudice to the provisions of any Act which empowers the Court to require security to be given for the costs of any proceedings.

Order 26  — Discovery and inspection

1A.Interpretation

For the purposes of this Order — 

document means any record of information and includes — 

(a)any disc, tape, sound‑track or other device in which sounds or other means of transmitting data (not being visual images); and

(b)any film, negative, disc, tape or other device in which one or more visual images,

are embodied so as to be capable, with or without the aid of some other device, of being reproduced therefrom;

inspection, in relation to a document which is not in writing or otherwise capable of being understood by visual means alone, includes the right to require the party making discovery to supply a copy of the document in a form in which it is in writing or otherwise capable of being understood by visual means alone.

[Rule 1A inserted in Gazette 5 Jun 1992 p. 2280‑1.]

1.Discovery without order

(1)Any party may give notice in writing to any other party in a cause or matter requiring him to give discovery of all documents which are or have been in his possession, custody or power relating to any matter in question therein.

(2)Where the cause or matter has been entered for trial a notice of the kind mentioned in paragraph (1) shall not be given without the leave of the Court.

(3)If the party making the requisition for discovery of documents so elects in the notice the discovery may take the form of a list of documents which must be attested by the solicitor for the party giving discovery or by some person authorised by the Court to take affidavits.

(4)If the party making the requisition does not agree to accept the list in the form provided by paragraph (3) then the list must be verified by affidavit.

[Rule 1 amended in Gazette 28 Oct 1996 p. 5675.]

2.Continuing obligation to give discovery

(1)A party that has been requested under Rule 1 to give discovery shall, subject to any order made under Rule 7, be under a continuing obligation until the conclusion of the trial to give discovery of any document relevant to any matter in question and not already discovered by that party.

(2)A party that has been ordered under Rule 7 to give discovery shall, subject to the order, be under a continuing obligation until the conclusion of the trial to give discovery of any document to which the order relates and not already discovered by that party.

(3)Discovery under paragraph (1) or (2) shall be given in accordance with paragraphs (4) and (5).

(4)A party shall give discovery to another party forthwith after the party becomes aware of a discoverable document unless the document came into existence after discovery was given under Rule 1 or under an order made under Rule 7 and — 

(a)is a communication between 2 or more of the parties or their solicitors; or

(b)is privileged from production.

(5)At least 21 days before the trial a party shall give discovery of any document that has not already been discovered by that party, including documents referred to in paragraph (4)(a) and (b).

(6)Discovery under this Rule shall be given by filing and serving on the other parties a supplementary list in accordance with Rule 4 showing the relevant documents together with a verifying affidavit.

[Rule 2 inserted in Gazette 28 Oct 1996 p. 5675‑6.]

[2A.Repealed in Gazette 28 Oct 1996 p. 5675.]

3.Determination of issue before discovery

If the Court is satisfied that the right to discovery or inspection of documents depends on the determination of any issue or question in the cause or matter or that for any other reason it is desirable that any issue or question in dispute should be determined before deciding such right the Court may order that the issue or question be determined first and may reserve an application under this Order for further consideration.

[Rule 3 amended in Gazette 28 Oct 1996 p. 5676.]

4.Form of list and affidavit — by whom made

(1)The list of documents made in compliance with Rule 1 or with an order under Rule 7 must be in Form No. 17, and must enumerate the documents in a convenient order and as shortly as possible, but describing each of them or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable it to be identified, and must be filed within 10 days after the service of the requisition, or within the time directed by the order.

(2)If it is claimed that any documents are privileged from production, the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege.

(3)An affidavit verifying a list of documents must be in Form No. 18.

(4)Any list of documents or affidavit verifying such list may be made — 

(a)by the party;

(b)where the party is the State or an officer of the State sued or suing in his official capacity — by an officer of the State;

(c)where the party is a body corporate or a body of persons empowered by law to sue or be sued whether in its own name or in the name of any officer or other person — by a member or officer of the corporation or body,

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

[Rule 4 amended in Gazette 30 Nov 1984 p. 3953; 28 Oct 1996 p. 5676; 19 Apr 2005 p. 1298.]

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

(1)Any defendant who has pleaded in an action shall be entitled to have a copy of any list of documents served under Rule 1, 2 or 7 on the plaintiff by any other defendant to the action; and a plaintiff against whom a counterclaim is made in an action begun by writ shall be entitled to have a copy of any list of documents served under any of those Rules on the party making the counterclaim by any other defendant to the counterclaim.

(2)On request made by a party entitled to a copy of a list of documents, the party required by paragraph (1) to supply the same must supply it free of charge.

(3)In this Rule list of documents includes an affidavit verifying a list of documents.

[Rule 5 amended in Gazette 28 Oct 1996 p. 5676.]

6.Order for discovery of particular documents

(1)Subject to Rule 7 the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document specified or described is, or has at any time been, in his possession custody or power, and if not then in his possession custody or power when he parted with it and what has become of it.

(2)An order may be made against a party under this Rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under Rule 1 or Rule 7.

(3)An application under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has, or at some time had, in his possession, custody or power the document or class of document specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.

[Rule 6 amended in Gazette 28 Oct 1996 p. 5676.]

7.Orders as to discovery

(1)An application for an order under this Rule may be made at any time by — 

(a)a party whose request under Rule 1 for discovery has not been satisfied; or

(b)a party who has been requested under Rule 1 to give discovery, whether or not the party has complied with the request.

(2)An affidavit in support of the application is not necessary.

(3)On an application, or at any time of its own motion in any proceedings, the Court, having regard to Order 1 Rule 4B, may — 

(a)order any or all of the parties to give discovery at that stage or at some specified future stage of the action;

(b)as to the documents to be discovered by any party — 

(i)order that discovery be given of only those specified documents or specified classes of document;

(ii)order that discovery be given of only those documents that are directly relevant to any specified matter in question or to all matters in question;

(iii)order that discovery be given of all documents relating to any specified matter in question or to all matters in question;

(c)make orders as to which parties are to be given discovery by any specified party;

(d)order that any or all of the parties not give discovery at that stage of the action, or at all;

(e)order any or all parties to make, file and serve an affidavit verifying the party’s list of documents discovered.

(4)For the purposes of this Rule if a party is ordered to give discovery, the party shall, subject to the order, make and serve, a list of the documents that are or have been in the party’s possession, custody or power.

[Rule 7 inserted in Gazette 28 Oct 1996 p. 5677‑8.]

8.Inspection of documents in list

(1)A party who has served a list of documents on any other party in compliance with Rule 1 or with an order under Rule 7 must allow the other party to inspect the documents mentioned in the list, other than any which he objects to produce, and must when serving the list on the other party also serve on him a notice stating a time within 7 days after the service thereof at which the said documents may be inspected at the place specified in