High Court of Australia Rules of Court (Cth)

STATUTORY RULES.

1928. No. 118.

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HIGH COURT OF AUSTRALIA.

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Rules of Court.

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As of Friday the second day of November a.d., 1928.

Pursuant to the Judiciary Act 1903-1926 and the High Court Procedure Act 1903-1925, and to all other powers thereunto enabling, IT IS ORDERED as follows:—

1. On and after the thirty-first day of December, 1928, all Rules of Court regulating the practice and procedure in the High Court of Australia, except Order XLII.a thereof, shall be repealed, but without prejudice to the validity of any proceedings theretofore taken under the said Rules of Court, and on the said thirty-first day of December, 1928, the Rules of Court hereinafter set out shall come into force and apply thenceforth to all suits, causes, matters, and appeals then pending or commenced on or after that date.

ADRIAN KNOX, C.J.

ISAAC A. ISAACS, J.

HY. B. HIGGINS, J.

CHAS. POWERS, J.

SEAFORTH MACKENZIE, Principal Registrar.

1539/27.—Price, 5s.

RULES OF COURT.

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Part I.—Original Jurisdiction  page

I.	Commencement of Civil Proceedings..............................................................	4
II.	Parties to Actions...........................................................................................	5
III.	Proceedings by and against Paupers ................................................................	7
IV.	Partial Relief..................................................................................................	8
V.	Writs of Summons..........................................................................................	8
VI.	Concurrent Writs............................................................................................	10
VII.	Renewal of Writs: Lost Writs..........................................................................	10
VIII.	Service of Originating Proceedings..................................................................	11
IX.	Service out of Jurisdiction...............................................................................	12
X.	Appearance....................................................................................................	13
XI.	Default of Appearance....................................................................................	15
XII.	Change of Parties...........................................................................................	17
XIII.	Leave to sign Summary Judgment...................................................................	18
XIV.	Summary Judgment—Actions for Account......................................................	20
XV.	Summons for Directions.................................................................................	20
XVI.	Trial without Pleadings...................................................................................	21
XVII.	Pleading generally..........................................................................................	22
XVIII.	Particulars......................................................................................................	25
XIX.	Statement of Claim.........................................................................................	26
XX	Defence.........................................................................................................	27
XXI.	Payment into Court.........................................................................................	28
XXII.	Reply and Subsequent Pleadings.....................................................................	30
XXIII.	Matters arising pending the Action..................................................................	30
XXIV.	Demurrer.......................................................................................................	31
XXV.	Discontinuance, &c........................................................................................	33
XXVI.	Default of Pleading.........................................................................................	34
XXVII.	Amendment...................................................................................................	35
XXVIII.	Security.........................................................................................................	37
XXIX.	Discovery and Inspection................................................................................	39
XXX.	Admissions....................................................................................................	42
XXXI.	Issues, Inquiries, and Accounts........................................................................	43
XXXII.	Questions of Law and Issues without Pleadings................................................	43
XXXIII.	Trial...............................................................................................................	45
XXXIV.	Evidence........................................................................................................	48
XXXV.	Affidavits.......................................................................................................	50
XXXVI.	Motion for Judgment......................................................................................	52
XXXVII.	Motions in General.........................................................................................	53
XXXVIII.	Entry of Judgments.........................................................................................	54
XXXIX.	Drawing up Judgments and Orders..................................................................	56
XL.	Relief against Judgments and Orders...............................................................	58
XLI.	Attachment and Committal.............................................................................	59
XLII.	Actions by and against firms and persons carrying on business in names other than their own.................................................................................................................	59
XLII a.	Admiralty Rules.............................................................................................	61
XLIII.	Inspection of Property, Interim Preservation, Custody and Management of Property, Receivers, Stop Orders...............................................................................................	70
XLIV.	Staying Proceedings.......................................................................................	73
XLV.	Consolidation.................................................................................................	73
XLVI.	Chambers......................................................................................................	73

 

ppage
XLVII.	Certiorari: Mandamus: Prohibition: Quo Warranto: Writ of Assistance...............................................................................................................	75
XLVIII.	Habeas Corpus...............................................................................................................	80
XLIX.	Committal for Contempt of Court...............................................................................................................	81
L.	Appeals in matters relating to Patents and Trade Marks...............................................................................................................	82
LI.	Revocation and Extension of Patents...............................................................................................................	83
LI.A	Appeals in matters relating to Assessments under Taxation Acts...............................................................................................................	84
LI.b	Election Rules...............................................................................................................	85
LI.c	Criminal Practice...............................................................................................................	87
LI.d	Trading with the Enemy (Vesting on Application of Property)...............................................................................................................	87
LII.	The Marshall and other Officers charged with Service and execution of Process.................................................................................................	90
LIII.	Time...............................................................................................................	91
LIV.	Costs...............................................................................................................	92
LV.	Service...............................................................................................................	102
LVI.	Sittings and Vacations...............................................................................................................	103
LVII.	General Provisions...............................................................................................................	104

Part II.—Appellate Jurisdiction.

Appeal Rules.

I.	Appeals from Justices of the High Court and New Trials......................................	105
II.	Appeals from decisions of Judges of the Supreme Courts of the States in causes or matters pending in the High Court.......................................................................................	109
III.	Appeals from Supreme Courts of States..............................................................	110
IV.	Appeals from decisions of Inferior Courts...........................................................	113
V.	General Provisions.............................................................................................	114

Part I.—Original Jurisdiction.

ORDER I.

Commencement of Civil Proceedings.

Mode of commencement

1. Causes and matters in the High Court may be commenced by writ of summons, motion, originating summons, or order to show cause.

Causes and matters which are by any Act or Rules of Court required or authorized to be commenced by motion, whether on notice or ex parte, or by originating summons, or order to show cause, or in any other specified manner, shall or may, respectively, be so commenced.

When by any Act or Rules of Court any person is authorized to make any application to the Court or a Justice with respect to any matter which is not already the subject-matter of a pending cause or matter, and no other mode of making the application is prescribed by the Act or Rules, the application, if made to the Court, shall be made by motion, and, if made to a Justice, shall be made by originating summons.

Except as aforesaid, and except as otherwise provided by any Act, all causes in the Court shall be commenced by writ of summons.

Causes commenced by writ of summons are called actions.

The document by which a cause or matter is commenced is called an “originating proceeding.”

Titles of proceeding.

2. Every proceeding in the Court shall be entitled “In the High Court of Australia.” If the cause is pending in a District Registry, the word “Registry” shall be added with the name of the State prefixed, and, if there is more than one District Registry in the State, the name of the place at which the Registry is situated shall also be added.

Address of suitor and of his solicitor to be endorsed on originating proceeding.

Address for service.

Name of principal and agent.

3. The solicitor of a party suing by a solicitor shall endorse upon the originating proceeding, and upon every notice in lieu of service of an originating proceeding, the address of the plaintiff, and also his own name or firm and place of business, and also, if his place of business is more than one mile from the Registry in which the cause or matter is commenced, a place to be called his address for service, which shall not be more than one mile from the Registry, where any proceedings in the cause or matter may be left for him. And, if the solicitor is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor.

Party sitting in person to endorse address for service.

4. A party suing in person shall endorse upon the originating proceeding, and upon every notice in lieu of service of an originating proceeding, his place of residence and occupation, and also, if his place of residence is more than one mile from the Registry in which the cause or matter is commenced, another proper place to be called his address for service, which shall not be more than one mile from the Registry, where any proceedings in the cause or matter may be left for him.

Change of solicitor.

5. A party suing or defending by a solicitor may change his solicitor in any cause or matter without an order for that purpose, upon notice of such change being filed in the Registry, but until such notice is filed and a copy thereof served, the former solicitor shall be considered the solicitor of the party.

 

ORDER II.

Parties to Actions.

1. Generally.

Persons claiming jointly severally, or in the alternative may be plaintiffs.

1. All persons in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may be joined in an action as plaintiffs, provided that the case is such that if such persons brought separate actions some common questions of law or fact would arise.

Provided that the Court or a Justice may, in any case in which separate and distinct questions arise, order that separate pleadings be delivered, or separate trials had, or may make such other order as is just.

When several plaintiffs are joined in an action, judgment may be given for such of them as are entitled to relief for such relief as they areentitled to, without any amendment. But the defendant shall be entitled to his costs occasioned by joining as a plaintiff any person who is not entitled to relief, unless the Court or a Justice in disposing of the costs otherwise directs.

Action in name of wrong plaintiff.

2. When an action has been commenced in the name of the wrong person as plaintiff, or it is doubtful whether an action has been commenced in the name of the right plaintiff, the Court or a Justice may order that any other person be substituted or added as plaintiff upon such terms as are just.

Cross-claim misjoinder.

3. When any person has been improperly or unnecessarily joined as a plaintiff in an action, the defendant shall be entitled to the same relief by way of cross-claim or set-off against the other plaintiffs or any of them, as if that person had not been so joined, notwithstanding such misjoinder or any proceeding consequent thereon.

Persons to be joined as defendants.

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

Defendant need not be interested in all the relief claimed.

5. It shall not be necessary that every defendant shall be interested asto all the relief claimed in the action, or as to every cause of action included in the action; but the Court or a Justice may make such order as is just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he has no interest.

Joinder of persons severally or jointly and severally liable.

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

Plaintiff in doubt as to person from whom redress is to be sought.

7. When a plaintiff is in doubt as to the person from whom he is entitled to relief, he may join two or more persons as defendants, to the intent that the questions as to which, if any, of the defendants is liable, and as to what relief the plaintiff is entitled to, may be determined as between all parties.

 

Numerous persons.

8. When there are numerous persons having the same interest in the subject-matter of a cause or matter, one or more of such persons may sue, and the Court or a Justice may authorize one or more of such persons to be sued, or may direct that one or more of such persons shall defend, in such cause or matter, on behalf or for the benefit of all persons so interested.

Misjoinder and nonjoinder.

9. The Court shall not refuse to determine a cause or matter by reason only of the misjoinder or nonjoinder of parties, and the Court may in every cause or matter deal with the matter in controversy sofar as regards the rights and interests of the parties actually before it.

Striking out and adding parties.

The Court or a Justice may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as appear to the Court or Justice to be just, order that the names of any persons improperly joined, whether as plaintiffs or as defendants, be struck out, or that the names of any persons who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added, either as plaintiffs or defendants.

Consent of plaintiff or next friend.

But no person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing.

Application to strike out.

10. An application to add or strike out or substitute a plaintiff or defendant may be made to the Court or a Justice, at any time before the hearing of the cause, or may be made at the hearing in a summary manner.

When defendant added.

11. When a defendant is added or substituted, he shall, unless he waives such service, be served with the amended originating proceeding, or with notice in lieu of service, as the case may be, and the proceedings as against him shall, unless otherwise ordered, be deemed to have begun only on such service being effected.

Such service shall, unless otherwise ordered by the Court or a Justice, be effected in the same manner in which original defendants are served.

2. Persons under Disability.

Infants.

12. An infant may sue or carry on the proceedings in any cause or matter by his next friend, and may appear in any cause or matter by his guardian ad litem.

Married women.

13. A married woman may sue or defend in her own name, being described as the wife of her husband, naming him.

Lunatics.

14. A person found or declared to be of unsound mind may sue or defend by the committee of his person or estate, as the case may be.

Persons of unsound mind without committees.

A person who is of unsound mind, but has not been so found or declared, and a person so declared, but of whom a committee of his person or estate, as the case may be, has not been appointed, may sue by his next friend, and may defend or intervene by a guardian appointed by a Justice for that purpose.

Next friend.

15. Before the name of any person is used in any cause or matter as next friend of any infant or other party, such person shall sign a written

authority to the solicitor for that purpose, and the authority shall be filed in the Registry with the originating proceeding. The authority shall not extend to any other proceeding than that specified in it.

A married woman or a corporation cannot be a next friend or a guardian for the purpose of bringing or defending an action.

Removal and appointment of next friend and guardian ad litem.

16. The Court or a Justice may, for sufficient cause shown, remove a next friend or guardian ad litem.

Whenever for any reason there is no next friend or guardian ad litem of an infant, the Court or a Justice may appoint a fit person, with his own consent, to be such next friend or guardian.

Consent of persons under disability to procedure.

17. In any cause or matter to which any infant or person of unsound mind, whether so found or declared or not, or a person under any other disability, is a party, any consent as to the mode of taking evidence or as to any other procedure shall, if given with the sanction of the Court or Justice by the next friend, guardian, committee, or other person acting on behalf of the person under disability, have the same force and effect as if the party were under no disability and had given the consent.

ORDER III.

Proceedings by and against Paupers.

Suing or defending as pauper.

1. Any person may be allowed by the Court or a Justice to sue or defend in any cause or matter as a pauper on proof that he is not worth £25, his wearing apparel and the subject-matter of the cause, or matter if any, only excepted.

Case to be laid before counsel.

2. A person desirous of suing as a pauper shall lay a case before a practitioner of the High Court for his opinion whether or not he has reasonable grounds for proceeding.

Affidavit by party or solicitor that case is true.

3. A person shall not be permitted to sue as a pauper unless the case laid before counsel for his opinion, and his opinion thereon, with an affidavit of the party or his solicitor, stating that the case contains a full and true statement of all material facts to the best of his knowledge and belief, and referring to the case as an exhibit, are produced before the Court or Justice to whom the application is made.

No Court fee payable.

4. A person admitted to sue or defend as a pauper shall not be liable to any Court fees.

Counsel and solicitor may be assigned.

5. When a person is admitted to sue or defend as a pauper, the Court or a Justice may, if necessary, assign a barrister or solicitor, or both, to assist him; and a barrister or solicitor so assigned shall not be at liberty to refuse his assistance unless he satisfies the Court or a Justice that he has some good reason for refusing.

Default in proceeding by pauper.

6. When a person who has been admitted to sue as a pauper neglects to proceed with the cause or matter he may be ordered to pay costs, although he has not been dispaupered; and all further proceedings in the cause or matter may be stayed until payment of any costs so ordered to be paid by him.

Notices, &c., on behalf of pauper, how to be signed.

7.A notice of motion shall not be served or summons issued, nor shall a petition be presented, on behalf of any person admitted to sue or defend as a pauper, except for the discharge of his solicitor unless it is signed by his solicitor.

Duty of solicitor.

8. It shall be the duty of a solicitor assigned to a person admitted to sue or defend as a pauper to take care that no notice is served, or summons issued, or petition presented, without good cause.

Pauper not to recover costs.

9. A person admitted to sue or defend as a pauper shall not be entitled to recover costs from any other party without the order of the Court or a Justice.

Taxation of costs.

10. Costs ordered to be paid to a person admitted to sue or defend as a pauper shall, unless the Court or a Justice otherwise directs, be taxed as in other cases.

ORDER IV.

Partial Relief.

Declaratory judgments and orders.

1. An action shall not 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 in an action properly brought, whether any consequential relief is or could be claimed therein or not.

ORDER V.

Writs of Summons.

Action to be commenced by writ.

1. Every action shall be commenced by a writ of summons, which shall have endorsed thereon a concise statement of the nature of the claim made, or of the relief or remedy sought in the action.

Amendment allowed.

2. The endorsement required by the last preceding rule shall not be invalid by reason of failure to set forth the precise ground of complaint, or the precise remedy or relief to which the plaintiff considers himself entitled.

The plaintiff may, by leave of the Court or a Justice, amend the endorsement so as to extend it to any other cause of action or any additional remedy or relief.

Endorsement to show representative capacity.

3. If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the endorsement shall show in what capacity the plaintiff or defendant sues or is sued.

Special endorsement of liquidated claims.

4. In any action in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, the writ of summons may be specially endorsed with particulars of the nature of his claim, and of the amount, if any, sought, to be recovered.

Further endorsement in case of liquidated claim.

5. When the plaintiff’s claim is for a debt or liquidated demand only with or without interest, the endorsement, besides stating the nature of the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs, respectively, and 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 be disallowed the plaintiff’s solicitor shall pay the costs of taxation.

The plaintiff may claim for costs under this Rule the following amounts, exclusive of mileage:—For costs on issuing the summons, the

sum of £4 14s. 6d., and a further sum of £4 14s. 6d. for costs of judgment in default of appearance; and when judgment is so obtained such costs shall not be subject to taxation.

Ordinary account.

6. In an action in which the plaintiff desires to have an account taken in the first instance, the writ of summons shall be specially endorsed with a claim that such account be taken.

Kinds of actions.

7.Actions shall be of two kinds, actions in personam and actions in rem.

Crown action

8. Actions for condemnation of any property, or for recovery of any pecuniary forfeiture or penalty, shall be instituted in the name of the King.

Title of actions.

9. The title of actions shall be as set forth in the Appendix.

Form of writ.

10. A writ of summons for the commencement of an action shall be in such one of the forms in the Appendix as is applicable, with such variations as circumstances require.

Writ issued from District Registry.

11. When a writ is issued from a District Registry, and any defendant neither resides nor carries on business in the State in which the Registry is situated, there shall be a statement upon the face of the writ that such defendant may, at his option, cause an appearance to be entered either at the District Registry or at the Principal Registry, or to the like effect.

Writ for service out of the jurisdiction.

12. A writ of summons to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction, may be issued without leave.

Form for writ and notice for service out of the jurisdiction.

13. Notice of a writ to be given out of the jurisdiction shall be in the form in the Appendix with such variations as circumstances require.

Time for appearance to be limited by writ.

14. The time to be limited in the writ of summons for the appearance of any defendant shall be the time next hereinafter specified, according to the place of service, that is to say:—

When the place of service is—	Time for Appearance.
(1.) Within the Commonwealth—
If the writ is to be served within the State in which the Registry from which it is issued is situated .................................................................................	Fourteen days
If the writ is to be served within a State adjacent to the State in which the Registry from which it is issued is situated................................................	Twenty-one days
In any other case.............................................................................	Twenty-eight days
Provided that if the writ is to be served in the State of Queensland, or the State of South Australia, or the State of Western Australia, at a place distant more than 600 miles from the Registry from which the writ is issued an additional time shall be allowed of.................................................................................	Seven days
(2.) Beyond the Commonwealth—
If the writ is to be served in New Zealand.........................................	Forty-two days
If the writ is to be served in British New Guinea or Fiji.....................	Three months
If the writ is to be served elsewhere.................................................	Six months

For the purposes of this Rule the State of Tasmania is to be deemed to be adjacent to the States of New South Wales, South Australia, and Victoria, and the State of Queensland is not to be deemed adjacent to the State of South Australia.

Distances are to be reckoned according to the nearest route ordinarily used in travelling.

Copy to be left.

15. The plaintiff, or his solicitor, shall, on presenting any writ of summons for issue, leave with the officer a copy of the writ, and of all the endorsements thereon, and the copy shall be signed by or for the solicitor leaving it, or by the plaintiff himself if he sues in person. No præcipe shall be required.

ORDER VI.

Concurrent Writs.

Concurrent writ, how issued.

1. The plaintiff in any action may, at the time of, or at any time during twelve months after, the issuing of the original writ of summons, issue one or more concurrent writs. Each concurrent writ shall be dated as of the same day as the original writ, and shall be marked with a seal bearing the word “Concurrent,” and the date of issuing the concurrent writ; and such seal shall be impressed upon the writ by the proper officer. Provided always that any such concurrent writs shall only be in force for the period during which the original writ in the action is in force.

Concurrent writs for service, within and without the jurisdiction.

2. A writ of summons to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction, may be issued and marked as a concurrent writ with a writ to be served within the jurisdiction; and a writ of summons to be served within the jurisdiction may be issued and marked as a concurrent writ with a writ to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction.

ORDER VII.

Renewal of Writs: Lost Writs.

Original writ in force for twelve months, but may be renewed.

1. Original writs of summons shall be in force for twelve months from the date thereof, including the day of that date, and no longer; but if any defendant therein named has not been served within that time, the plaintiff may, before the expiration of the twelve months, apply to the Court or a Justice for leave to renew the writ; and the Court or Justice, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of renewal, including the day of that date, and so from time to time during the currency of the renewed writ.

The writ shall be renewed by being marked with the word “Renewed,” and with a seal bearing the date of the day, month and year of the renewal; which seal shall be provided and kept for that purpose at the Registry, and shall be impressed upon the writ by the proper officer, upon delivery to him by the plaintiff or his solicitor of a præcipe to that effect.

A writ of summons so renewed shall remain in force and be available to prevent the operation of any Act whereby the time for the commencement of the action is limited, and for all other purposes, from the date of the issuing of the original writ.

Evidence of renewal.

2. The production of a writ of summons purporting to be marked with the seal of the Court, showing it have been renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, and of the commencement of the action as of the date of the original writ, for all purposes.

Lost writ.

3. When awrit of which the production is necessary has been lost, the Court or aJustice, upon production of acopy thereof, and upon being satisfied of the loss, and of the correctness of the copy, may order that the copy shall be sealed and served, or otherwise made use of, in lieu of the original writ.

ORDER VIII.

Service of Originating Proceedings.

1. Generally.

Personal service.

1. Unless otherwise prescribed or allowed, service of an originating proceeding shall be made personally. But personal service shall not be required when the party to be served, by his solicitor, undertakes in writing to accept service, and enters an appearance.

Personal service, how effected.

2. Personal service shall be effected, in the case of a writ of summons, originating summons, or other document authenticated by signature or seal, by delivering to and leaving with, or offering to deliver to and leave with, the person to be served, a copy of the writ, summons, or other document, in such a condition as to be open for examination, and at the same time showing him the original writ, summons, or other document, if he requires it; and, in the case of any other document, by delivering or offering to deliver it to the person to be served in such a condition as to be open for examination.

2. On Particular Defendants.

Husband and wife.

3. When a husband and his wife are both parties to a cause or matter, they shall both be served unless the Court or a Justice otherwise orders.

Infants.

4. When an infant is a party to a cause or matter, service on his father or guardian, or, if he has none, then upon the person with whom the infant resides or under whose care he is, shall, unless the Court or a Justice otherwise orders, be deemed good service on the infant; but the Court or Justice may order that service made or to be made on the infant himself shall be deemed good service.

Lunatics.

5. When a person of unsound mind is a party to acause or matter, service on the committee, if any, of his person or estate, as the case may be, or, if he has not been found or declared to be of unsound mind, or if he has been so declared but a committee of his person or estate, as the case may be, has not been appointed, service on the person with whom he resides or under whose care he is shall, unless the Court or a Justice otherwise orders, be deemed good service on such party.

3. On Corporations and other Bodies.

Service on corporations, &c.

6. In the absence of any statutory provision regulating service of process, an originating proceeding to be served on a corporation aggregate, whether incorporated under the laws of the Commonwealth or of

a State or not, may be served on the mayor or other head officer, or on the town clerk, manager, or other chief officer, of the corporation within the Commonwealth; and when by any Act provision is made for service of any legal process upon any corporation, or upon any society or fellowship, or any body or number of persons, whether corporate or unincorporate, an originating proceeding may be served in the manner so provided.

4. Endorsement of Date of Service.

Endorsement to be made on writ within three days.

7. The person serving a writ of summons shall, within three days after the service, endorse on the writ the day of the month and week of the service thereof; otherwise the plaintiff shall not, without leave of the Court or a Justice, be at liberty, in case of default of appearance, to proceed as upon default; and every affidavit of service of the writ shall mention the day on which such endorsement was made.

5. Substituted Service.

Substituted service may be allowed.

8. If it is made to appear to the Court or a Justice that a party is from any cause unable to effect prompt personal service, or service in any other prescribed manner, of the originating proceeding, or any other proceeding requiring service, the Court or Justice may make such order for substituted service, or for the substitution for service of notice, by advertisement or otherwise, as is just.

Evidence.

9. Every application to the Court or a Justice for an order for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon which the application is made.

ORDER IX.

Service out of the Jurisdiction.

Incertain cases service of writ, &c., allowed out of jurisdiction.

1. An originating proceeding, or notice thereof, may be served out of the jurisdiction of the Court in any of the following cases, that is to say:—

(1) When the subject matter of the cause, so far as it concerns he party to be served, is—

(a) Land or other property situate within the Commonwealth, with or without rents or profits thereof; or

(b) Any shares or stock of a corporation or joint stock company having its principal place of business within the Commonwealth; or

(c) Any instrument or thing affecting any such land, property, shares, or stock;

(2) When any contract in respect of which relief is sought in the cause against the party by way of enforcing, rescinding, dissolving, annulling, or otherwise affecting the contract, or by way of recovering damages or obtaining any other remedy against the party for a breach thereof, was made or entered into within the Commonwealth;

(3) When the relief sought against the party is in respect of a breach within the Commonwealth of a contract, wherever made; or

 

(4) When any act or thing sought to be restrained or recovered or for which damages are sought to be recovered, was done or is to be done or is situate within the Commonwealth.

In the case of an action, the endorsement of claim on the writ of summons shall be in such a form as to show that the subject-matter of the action is within the provisions of this Rule.

As to British subjects residing beyond the Commonwealth.

2. If the party to be served is a British subject, the Court or a Justice, upon being satisfied by affidavit that the subject-matter of the cause is such that, under the provisions of the last preceding Rule, the originating proceeding may be served out of the jurisdiction, and that it was personally served upon a party out of the jurisdiction, or that reasonable efforts were made to effect personal service thereof upon the party and that it came to his knowledge, and either that he wilfully neglects to appear in the cause, or that he is living out of the jurisdiction of the Court in order to defeat and delay the plaintiff, may direct from time to time that the plaintiff or petitioner shall be at liberty to proceed in the cause in such manner and subject to such conditions as the Court or Justice thinks fit.

As to foreigners residing out of the jurisdiction.

3. When the originating proceeding is an instrument under the seal of the Court and the defendant is neither a British subject nor in British dominions, notice of the instrument, and not the instrument itself, is to be served upon him. Such service shall have the same force and effect as service of a writ of summons or other originating proceeding upon a British subject; and by leave of the Court or a Justice, upon their or his being satisfied by affidavit as aforesaid, the like proceedings may be had and taken thereupon.

ORDER X.

Appearance.

1 General.

Appearance to writ of summons.

1. A defendant shall enter his appearance to a writ of summons in the District Registry from which the writ was issued, or, at his option, in cases in which he is permitted by the High Court Procedure Act 1903-1925 to enter it at the Principal Registry, at the Principal Registry; according to the exigency of the writ.

Mode of entering appearance.

2. A party entering an appearance shall do so by delivering to the proper officer a memorandum in writing dated on the day of its delivery, and containing the name of his solicitor, or stating that he appears in person.

There shall at the same time be delivered to the officer a duplicate of the memorandum, which the officer shall seal with the official seal, showing the date on which it is sealed, and shall then return to the person entering the appearance. The duplicate memorandum so sealed shall operate as a certificate that the appearance was entered on the day indicated by the seal.

Defendant’s address for service.

3. The solicitor of a defendant appearing by a solicitor shall state in such memorandum his name or firm and place of business, and also, if his place of business is distant more than one mile from the Registry

at which the appearance is entered,a place to becalled his address for service, which shall not be more than one mile from that Registry, where any proceedings in the action may be left for him. And, if the solicitor is only agent for another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor.

Defendant appearing in person.

4. A defendant appearing in person shall state in such memorandum his address, and also a place, to be called his address for service,which shall not be more than one mile from the Registry at which the appearance is entered.

Irregular memorandum.

Fictitious address.

5. If the memorandum does not contain such address it shall not be received; and, if the address is illusory orfictitious, the appearance may be set aside by the Court or a Justice on the application of the plaintiff.

Memorandum of appearance.

6. The memorandum of appearance shall be in the form inthe Appendix with such variations as circumstances require.

Defendants appearing by same solicitor.

7. If two or more defendants in the same cause appear by the same solicitor and at the same time, the names of all the defendants so appearing shall be inserted in one memorandum.

Notice of appearance.

8. A defendant shall, on the day on which he enters his appearance, give notice of his appearance, in the form in the Appendix, to the; plaintiff’s solicitor, or, if the plaintiff sues in person, to the plaintiff himself. The notice may be given either by notice in writing served 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, and shall in either case be accompanied by the sealed duplicate memorandum.

Appearance at Principal Registry to be notified by telegraph to District Registry in certain cases.

9. If a defendant, being entitled to enter his appearance either at a District Registry or at the Principal Registry, elects to enter it at the Principal Registry, the Principal Registrar shall on the same day at the cost of the defendant, notify to the District Registrar by telegraph that the appearance has been entered.

Solicitor not entering appearance.

10. A solicitor who fails to enter an appearance in pursuance of his written undertaking so to do shall be liable to attachment.

Time for appearance.

11. A defendant may appear at any time before judgment. If he appears after the time limited for appearance, he shall not, unless the Court or a Justice otherwise orders, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the exigency of the writ.

Admiralty intervention.

12. In an action in rem, any person not named in the writ may intervene and appear on filing an affidavit showing that he is interested in the res under arrest, or in the fund in Court.

Conditional appearance.

13. A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court, and shall not thereby be deemed to have submitted to the jurisdiction, except as to the costs occasioned by the appearance or by any application under this Rule; and he may thereupon apply to the Court or Justice for an order to set asidethe service upon him of the originating proceeding, or the service upon him of notice thereof, as the case may be.

Or he may make such application before appearing, and without entering a conditional appearance.

If he enters a conditional appearance, and does not make such application promptly, the Court or Justice may set aside the conditional appearance with costs, to be paid by the defendant by whom it was entered.

If the application is made and dismissed, the conditional appearance shall be struck out, and the defendant may enter an appearance as in other cases.

2. Persons under Disability.

Appearance by Infant.

14. An order for the appointment of a guardian ad litem of an infant in an action shall not be necessary but the solicitor applying to enter an appearance for the infant shall make and file an affidavit in the form in the Appendix, with such variations as circumstances require.

Guardian ad litem in matters other than actions.

15. An infant served with an originating proceeding in any cause or matter, not being an action, may appear on the hearing of the cause or matter by a guardian ad litem in all cases in which the appointment of a special guardian is not provided for. An order for the appointment of such guardian shall not be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last preceding Rule mentioned.

Other cases.

16. When proceedings in any cause or matter are directed to be continued against an infant, or an infant is at liberty to attend any proceedings in a cause or matter, he shall appear as in the last preceding Rule directed.

ORDER XI.

Default of Appearance.

Default of appearance by infant or person of unsound mind.

1. When no appearance is entered to a writ of summons for a defendant who is an infant or a person of unsound mind who has not been so found or declared, the plaintiff shall, before proceeding with the action against the defendant, apply to the Court or a Justice for an order that some proper person be appointed as guardian of the defendant, by whom he may appear and defend the action.

Notice of application.

Such an order shall not be made unless it appears that the writ of summons was duly served, and that notice of the application was, after the expiration of the time allowed for appearance, and at least six clear days before the day in such notice named for hearing the application, served upon or left at the dwelling-house of the person with whom or under whose care the defendant is then residing, and also, if the defendant is an infant not residing with or under the care of his father or guardian, served upon or left at the dwelling-house of the father or guardian, if any, of the infant, unless the Court or Justice at the time of hearing the application dispenses with the last-mentioned service.

When a guardian has been appointed, he shall have the same time for appearance after the service of the order on him as if it were a writ of summons.

Default of appearance generally.

2. When a defendant fails to appear to a writ of summons, and the plaintiff is desirous of proceeding upon default of appearance under

any of the following Rules of this Order, he shall, before taking such proceeding upon default, file an affidavit of service of the writ, or of notice in lieu of service, as the case may be.

Liquidated demand endorsed.

3. When the writ of summons is endorsed for a debt or liquidated demand only, and the defendant fails, or all the defendants, if more than one, fail, to appear thereto, the plaintiff may enter final judgment against such defendant or defendants for any sum not exceeding the sum endorsed on the writ, together with interest at the rate claimed by the endorcement at the rate agreed upon, if any, or, if no rate is claimed to have been agreed upon, at the rate of five per centum per annum, to the date of the judgment, and costs.

Liquidated demand: Several defendants.

4. When the writ is endorsed for a debt or liquidated demand, and there are several defendants, of whom some appear to the writ, and others fail to appear, the plaintiff may enter final judgment as by the last preceding Rule provided against the defendants so failing to appear.

Detention of goods Damages.

5. When the writ is endorsed with a claim for detention of goods and pecuniary damages, or either, and the defendant fails, or all the defendants, if more than one, fail to appear, the plaintiff may enter interlocutory judgment against such defendant or defendants, and a writ of inquiry may issue to assess the value of the goods and the damages, or either, as the case may be, in respect of the causes of action disclosed by the endorsement on the writ. But the Court or a Justice, instead of issuing a writ of inquiry, may order that the value and the damages, or either, shall be ascertained in any other way which the Court or Justice directs.

Several defendants.

6. When the writ is endorsed as in the last preceding Rule mentioned, and there are several defendants, of whom some appear to the writ, and others fail to appear, the plaintiff may enter interlocutory judgment against the defendants so failing to appear. And in that case the value of the goods and the damages, or either, as the case may be may be assessed, as against the defendants suffering judgment by default, at the same time as the trial of the action or issue therein against the other defendants. But the Court or a Justice may order that instead of proceeding to such trial, the value and the damages, or either, shall be ascertained by a writ of inquiry as directed by the last preceding Rule, or in any other way which the Court or Justice directs.

Liquidated demand and detention of goods, and damages.

7. When the writ is endorsed with a claim for detention of goods and pecuniary damages, or either, and is further endorsed for a debt or liquidated demand, and any defendant fails to appear to the writ, the plaintiff may enter final judgment against him for the debt or liquidated demand, with interest and costs, and may also enter interlocutory judgment for the value of the goods and the damages, or either, as the case may be, and may proceed as provided in Rules 5 and 6 of this Order.

Setting aside judgment by default.

8. Any judgment by default under this Order may be set aside or varied by the Court or a Justice upon such terms as to costs or otherwise as the Court or Justice thinks fit.

Default of appearance in actions not otherwise specially provided for.

9. In all actions not by this Order otherwise specially provided for in case any defendant does not appear within the time limited by the

 

writ for appearance, the plaintiff may, upon filing a proper affidavit of service and a statement of claim, proceed in the action as if the defendant had appeared.

Effect of judgment by default.

10. In any case in which a plaintiff enters judgment under the provisions of this Order against any defendants who fail to appear, the entry of judgment shall not, nor shall the issue of execution thereon, prejudice his right to proceed in the action against the other defendants.

ORDER XII.

Change of Parties.

Action not abated where cause of actions continues.

1. A cause or matter shall not become abated by reason of the marriage, death, or insolvency of any of the parties, if the cause of action survives or continues, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite.

In case of marriage, &c., or devolution of estate, Court may order successor to be made a party or served with notice.

2. In case of the marriage, death, or insolvency, or devolution of estate by operation of law, of any party to a cause or matter, the Court or a Justice may, if it is necessary for the complete settlement of all the questions involved, order that the husband, personal representative, trustee, or other successor in interest, if any, of the party shall be made a party, or shall be served with notice in such manner and form as hereinafter prescribed, on such terms as are just, and may make such order for the disposal of the cause or matter as is just.

In case of assignment, creation, or devolution of estate or title, action may be continued.

3. In case of an assignment, creation, or devolution of any estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom the estate or title has come or devolved.

Order to carry out proceedings.

4. When by reason of marriage, death, or insolvency, or any other event occurring after the commencement of a cause or matter, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties and the new party may be obtained ex parte, either by any continuing party, or by any person who is made a party, on application to the Court or a Justice, upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence.

If the party applying to be made a party as plaintiff is an infant, the application must be made by him by his next friend.

Service of order to continue action.

5. Every order made under the last preceding Rule shall, unless the Court or Justice otherwise directs, be served upon the continuing parties, and also upon each, such new party, unless the person making the application is himself the only new party, and the order shall from the time of such service, subject nevertheless to the next two following Rules, be binding on the person served therewith; and every person served therewith who is not already a party to the cause or matter shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons. Notice of such obligation to appear shall be endorsed on the order before service.

Application to discharge order by person under no disability or having a guardian.

6. When any person who is under no disability, or who is under no disability other than coverture, or who, being under some disability other than coverture, has a guardian ad litem in the cause or matter, is served with an order made under Rule 4 of this Order, he may apply to the Court or a Justice to discharge or vary the order at any time within eight days after the time allowed for appearance.

By person under disability, having no guardian.

7. When any person who is under any disability other than coverture, and has no guardian ad litem in the cause or matter, is served with an order made under Rule 4 of this Order, he may apply to the Court or a Justice to discharge or vary the order at any time within eight days after the time allowed for the appearance of his guardian ad litem when duly appointed; and until the period of eight days has expired the order shall have no force or effect as against the last-mentioned person.

Death of sole plaintiff or defendant.

8. When the plaintiff or defendant in a cause dies, and the cause of action survives, but the plaintiff or the person entitled to proceed fails to proceed, the defendant, or the person against whom the cause may be continued, may apply to a Justice for an order requiring the plaintiff or the person entitled to proceed to do so within such time as is ordered: And in default the Justice may order the cause to be dismissed for want of prosecution, with or without costs, as in other cases.

ORDER XIII.

Leave to Sign Summary Judgment.

Application for summary judgment.

1. (1) When a defendant appears to a writ of summons specially endorsed under Order V., Rule 4, the plaintiff may, on affidavit made by himself or any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the action, apply to a Justice for liberty to enter final judgment for the amount so endorsed, or any part thereof, together with interest, if any, and costs. The Justice may thereupon, unless the defendant, by affidavit or viva voce evidence, or otherwise satisfies him that he has a good defence to the action on the merits, or discloses such facts as entitle him to defend, make an order giving the plaintiff leave to enter judgment accordingly.

(2) If on the hearing of an application under this Rule it appears that the plaintiff is not entitled to judgment for the full amount claimed or for all the relief claimed, the Justice may give the plaintiff leave to enter judgment for any sumwhich it appears that he is entitled to recover, or for any other relief to which it appears that he is entitled.

(3) When the sum for which leave is given to enter judgment in respect of a claim specially endorsed is not the whole amount for which leave to enter judgment is asked in respect of that cause of action, the Justice may either strike out the residue of the claim in respect of that cause of action or may allow the action to proceed in respect of such residue.

(4) Any defect in the special endorsement may be amended forth with upon such terms as a Justice may think just.

(5) When an application has been dismissed on the ground of formal defects in the proceedings or in the evidence, a fresh application may be made on amended proceedings.

Application by summons.

2. An application by a plaintiff for leave to enter final judgment under the last preceding Rule shall be made by summons, returnable not less than four clear days after service. Copies of the affidavits intended to be used upon the application, and of all exhibits therein referred to, shall be served with the summons, and no further evidence shall be given on behalf of the plaintiff except by leave of the Justice.

Defendant may show cause.

3. The defendant may show cause against such application by affidavit, or by leave of the Justice by oral evidence, or by offering to bring into Court the sum claimed.

If he shows cause by affidavit, the affidavit shall state whether the defence alleged goes to the whole or to part only, and, if so, what part of the plaintiff’s claim.

The Justice may, if he thinks fit, order the defendant, or, in the case of a corporation, any officer thereof to attend and be examined upon oath, or to produce any leases, deeds, books, or documents, or copies of or extracts therefrom.

Judgment for part of claim.

4. If it appears that the defence set up by the defendant applies only to a part of the plaintiff’s claim, or that any part of his claim is admitted, the plaintiff shall have judgment forthwith for that part of his claim to which the defence does not apply, or which is admitted, subject to such terms, if any, as to suspending execution, or the payment of the amount levied, or any part thereof, into Court by the Marshal, the taxation of costs or otherwise, as the Justice may think fit; and the defendant may be allowed to defend as to the residue of the plaintiff’s claim.

Where one defendant has good defence but other not.

5. If it appears to the Justice that any defendant has a good defence to the action, or ought to be permitted to defend, and that any other defendant has not such defence, and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment against the latter, and may issue execution upon such judgment without prejudice to his right to proceed with the action against the former.

Leave to defend.

6. Leave to defend may be given unconditionally or subject to such terms as to giving security, or as to the time or mode of trial, or otherwise as the Justice may think fit.

Summary disposal.

7. On the hearing of an application, the Justice may, with the consent of all parties; dispose of the action in a summary manner.

Directions as to trial.

8. When leave, whether conditional or unconditional, is given to defend, the Justice shall have power to give such directions as to the further conduct of the action as might be given on a summons for directions under Order XV., and may order the action to be forthwith set down for trial.

Costs.

9. When no order is made as to the costs of the application, or when the costs are referred to the Justice at the trial, and no trial afterwards takes place, or no order as to costs is made at the trial, the costs of the application shall be costs in the action.

ORDER XIV.

Summary Judgment.—Actions for Account.

Order for account.

1. When a writ of summons has been endorsed with a claim for an account under Order V., Rule 6, or when the claim endorsed on a writ of summons involves taking an account, the plaintiff may at any time after appearance, or after the time for entering an appearance has expired, apply to a Justice for an order to take the account.

Application how made.

2. An application for an order under the last preceding Rule shall be made by summons, and shall, when necessary, be supported by affidavits, stating concisely the grounds of the plaintiff’s claim to an account. If any defendant has made default in appearance, the application may, as against him, be made ex parte.

Evidence in answer.

3. If the defendant does not, by affidavit or otherwise, satisfy the Justice that there is some preliminary question to be tried, an order for the proper accounts, and for all necessary inquiries, with such directions as are usual in similar cases, shall be made forthwith.

ORDER XV.

Summons for Directions.

Summons for directions.

1. Any party to an action may, at any time after the appearance of any defendant who is affected thereby, take out a general summons for directions.

The summons shall specify the matters as to which directions are desired, and shall be addressed to and served upon all such parties to the action as may be affected thereby.

Interlocutory proceedings.

2.Upon the hearing of the summons, the Court or Justice shall, so far as practicable, make such order as is just with respect to all the interlocutory proceedings to be taken in the action before the trial and as to the costs of such proceedings, and more particularly with respect to the following matters:—Pleading, particulars, admissions, discovery, interrogatories, inspection of documents, inspection of real or personal property, examination of witnesses, place and mode of trial.

Adjournment.

3. The further hearing of the summons shall be adjourned from time to time until the conclusion of the action.

No affidavit necessary.

4. No affidavit shall be made or used on the hearing of the summons except by special order of the Court or Justice.

Parties to apply for directions.

5. On the hearing of the summons, any party to whom the summons is addressed shall, so far as practicable, apply for any order or directions as to any interlocutory matter or proceeding in the action which he desires.

Subsequent applications.

6. When such a summons has been taken out, any application subsequent to the first hearing of the summons for any directions as to any interlocutory matter or proceeding by any party shall be made under the summons, which shall be set down for further hearing on two clear days’ notice to the other party, stating the nature of the order or directions intended to be asked for.

Costs of subsequent applications.

7. Any application by any party which might have been made at the first hearing of the summons shall, if granted on any subsequent application, be granted at the costs of the party applying, unless the Court or Justice is of opinion that the application could not properly have been made at the first hearing of the summons.

Effect of Order.

8. The operation of these Rules with respect to the proceedings to be taken by the parties as to any of the matters particularly specified in Rule 2 of this Order shall be subject to any directions given upon the Summons for directions.

ORDER XVI.

Trial without Pleadings.

Endorsement.

1. When the endorsement of the writ of summons in an action contains a statement sufficient to give notice of the nature of the plaintiff’s claim or of the relief or remedy sought in the action, the plaintiff may also endorse on the writ a notice stating that if the defendant appears the plaintiff intends to proceed to trial without pleadings.

Notice of trial.

2.When the writ is so endorsed, no pleadings shall be required or delivered, except by order of the Court or a Justice; and the plaintiff may, at the expiration of ten days after appearance, serve notice of trial without pleadings.

Defendant may apply for statement of claim.

3. When the writ is so endorsed, the defendant may, within ten days after appearance, apply to a Justice for an order for the delivery of a statement of claim, and on such application the Justice may order that a statement of claim shall be delivered, in which case the action shall proceed as if no such endorsement had been made; or may order that the action shall proceed to trial without pleadings. In the latter case the Justice may, if he thinks fit, further order that either party shall deliver particulars of his claim or defence within a time to be specified in the order.

Particulars.

4. If the Justice orders that the action shall proceed to trial without pleadings, and makes no order as to particulars, all defences shall be open at the trial to the defendant.

When particulars are ordered to be delivered, the parties shall be bound by the particulars so far as regards the matters in respect of which the order for particulars is made.

Special defences.

5. When the writ is so endorsed, and the defendant does not make application under Rule 3 of this Order, he shall not be allowed to rely on a set-off or cross-claim, or on the defence of infancy, coverture, fraud, a Statute of Limitations or discharge under the laws relating to bankruptcy or insolvency, unless within ten days after appearance he gives notice to the plaintiff, stating the defence upon which he so relies, and, in the case of a set-off or cross-claim, or of the defence of fraud, giving particulars thereof; but all other defences shall be open at the trial to the defendant.

If the plaintiff sets up in reply to a set-off or cross-claim any such defence as hereinbefore enumerated, he shall give like notice thereof to the defendant before giving notice of trial.

ORDER XVII.

Pleading Generally.

Pleading to state material facts and not evidence.

1. Every pleading shall contain a statement, as brief as the nature of the case allows, setting out the material facts on which the party pleading relies to support his claim or defence, as the case may be, but not the evidence by which they are to be proved; and shall, when necessary, be divided into paragraphs, numbered consecutively, and each containing, as nearly as may be, a separate allegation. Dates, sums, and numbers may be expressed in figures or in words. Every pleading shall be signed by the solicitor of the party, or by the party himself if he sues or defends in person.

Cost of prolix pleadings.

The Court or a Justice in adjudging the costs of the action shall at the instance of any party, and may without any request, inquire into any unnecessary prolixity, and may order the costs occasioned by the prolixity to be borne by the party responsible for it.

Delivery of pleadings.

2. Except in cases in which no pleadings are required the plaintiff shall, at the time and in the manner prescribed by Order XIX., deliver to the defendant a statement of his claim, and of the relief or remedy to which he claims to be entitled. The defendant shall, at the time and in the manner prescribed by Order XX., deliver to the plaintiff his defence, if any; and the plaintiff shall, at the time and in the manner prescribed by Order XXII., deliver his reply, if any, to the defence.

Set-off and cross-action.

3. A defendant may plead by way of set-off, or set up by way of cross-action, against the claim of the plaintiff or any of the plaintiffs, if more than one, any right or claim arising out of the plaintiff’s claim or connected with it, whether the set-off or cross-claim sound in damages or not; and the set-off or cross-claim shall have the same effect as a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original claim and on the cross-claim. But the Court or a Justice may strike out a defence by way of set-off or cross-claim, if in the opinion of the Court or Justice the set-off or cross-claim cannot be conveniently disposed of in the pending action or ought not to be allowed, or may order that it shall be disposed of separately.

Relief founded on separate facts.

4. When the plaintiff seeks relief in respect of several distinct claim or causes of complaint founded upon separate and distinct ground they shall be stated, as far as may be, separately and distinctly. And the same rule shall apply where a defendant relies upon several distinct grounds of defence or cross-claim founded upon separate and distinct facts.

Particulars to be given in certain cases.

5. If the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars are necessary, particulars, with dates and items if necessary, shall be stated in the pleading: Provided that, if the particulars are of debt, expenses, or damages, and exceed three folios, the fact shall be so stated, with a reference to full particulars already delivered or to be delivered with the pleading.

Printing pleadings.

6. Pleadings may be either printed or written, or partly printed and partly written.

Delivery by filing.

7. Every pleading or other document required to be delivered to a party, or between parties, shall be delivered at the address for service to the solicitor of every party who sues or appears by a solicitor, or to the party if he does not sue or appear by a solicitor; but if no appearance has been entered for any party, then the pleading or document shall be delivered by being filed in the Registry.

Marking pleadings

8. Every pleading shall be marked on the face with the number of the action, the title of the action, the date of the day on which the pleading is delivered and the description of the pleading, and shall be endorsed with the name and address for service of the solicitor and agent, if any, delivering it, or the name and address for service of the party delivering it if he does not sue or appear by a solicitor.

Plea of “Not guilty by statute” not to be used.

9. The defence of “Not guilty by statute” shall not be used.

Specific denial.

10. Every allegation of fact in any pleading, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant or a person of unsound mind.

Conditions precedent to be specified by party denying performance.

11. An averment of the performance or occurrence of all conditions precedent necessary for the case of either party shall be implied in his pleading: And when the performance or occurrence of any condition precedent is denied, the condition must, unless it appears already by implication, be distinctly specified in his pleading by the party denying it.

Several defences or answers.

12. Any party may, without leave, plead any number of separate defences or other replies or answers to the previous pleading of the opposite party.

Pleadings to raise all grounds of defence or reply.

13. Each party must raise by his pleading all matters of fact which show that the claim of the opposite party is not maintainable, or that a transaction is void or voidable in point of law; and all grounds of defence or reply, as the case may be, must be pleaded which, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, release, payment, performance, facts showing illegality or invalidity of a contract either by statute or common law, or a Statute of Limitations.

Departure.

14. A pleading shall not raise any new ground of claim, or contain any allegation of fact, inconsistent with the previous pleadings of the party pleading it.

General denial.

15. It is sufficient for a defendant in his statement of defence to deny generally any allegations in the statement of claim.

Confession and avoidance.

16. When a party admits any allegation in the pleading of the opposite party, and sets up other matter in answer thereto, he must, unless he amends his pleading, plead the other matter specifically in a further pleading.

Joinder of issue.

17. Either party may, in any pleading subsequent to defence, join issue upon the last preceding pleading of the opposite party. Such joinder of issue shall operate as a denial of every material allegation

of fact in the pleading upon which issue is joined, but it may except any facts which the party is willing to admit, and shall then operate as a denial of the facts not so admitted.

Effect of general denial.

18. Subject to the next following Rule and to Order XX., a general denial of an allegation of fact in a previous pleading shall be construed as a denial of the allegation, and of all the alleged circumstances, whether of time, place, amount, or otherwise.

Effect of denial of contract.

19. When a contract, promise, or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of the contract, promise, or agreement, whether with reference to any Act, or otherwise, or of the authority of any person by whom the contract, promise, or agreement is alleged to have been made.

Effect of documents to be stated.

20. When the contents of a document are material, it is sufficient to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.

Malice, knowledge, &c.

21. When it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it is sufficient to allege the same as a fact without setting out the circumstances from which it is to be inferred.

Notice.

22. When it is material to allege notice to any person of any fact, matter, or thing, it is sufficient to allege the notice as a fact, unless the form or the precise terms of the notice, or the circumstances from which such notice is to be inferred, are material.

Implied contract or relation.

23. When any contract or any relation between any persons is to be implied from a series of letters or conversations, or otherwise from a number of circumstances, it is sufficient to allege the contract or relation as a fact, and to refer generally to the letters, conversations, or circumstances without setting them out in detail. Andif in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from the circumstances, he may state them in the alternative.

Stated or settled account to be alleged.

24 When the cause of action is a stated or settled account, the same must be alleged with sufficient particulars, but when a statement of account is relied on by way of evidence or admission of some other cause of action which is pleaded, the same shall not be alleged in the pleadings.

Presumptions of law.

25. A party need not in any pleading allege any matter of fact which the law presumes in his favour, or as to which the burden of proof does not lie upon him, unless it has first been specifically denied by the other party; for example, the consideration for a bill of exchange when the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim.

Points of law may be raised by pleadings.

26. Any party may raise by his pleading any point of law, and any point so raised shall, if not previously disposed of, be disposed of by the Justice who tries the action, at or after the trial: Provided that by

consent of the parties, or by order of the Court or a Justice, made on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

Dismissal of action.

27. If in the opinion of the Court or Justice the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, claim of damages, ground of defence, set-off, or cross-claim therein, the Court or Justice may thereupon dismiss the action or give or make such other judgment or order therein as is just.

Technical objection.

28. No technical objection shall be made to any pleading on the ground of any alleged want of form.

When judgment pleaded.

29. When a judgment is pleaded the party pleading must, within ten days after demand by the opposite party, deliver to him a copy of the judgment, certified by the proper officer of the Court by which the judgment was given. In default of such delivery, the Court or a Justice may order the pleading to be struck out or amended.

Striking out pleading where no reasonable cause of action or defence disclosed.

30. The Court or a Justice may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or ground of defence, or that it shows that the action or defence is frivolous or vexatious; and in any such case the Court or a Justice may order that the action be stayed or dismissed, or that judgment be entered as upon default of pleading, as may be just.

Striking out pleadings in other cases.

31. The Court or a Justice may at any stage of the proceedings order to be struck out or amended any matter in any pleading which is unnecessary or scandalous, or which tends to prejudice, embarrass, or delay the fair trial of the action; and may in any such case order the costs of the application to be paid as between solicitor and client.

Notice to plead or set down demurrer.

32. Upon every pleading, except a joinder of issue or a demurrer, there shall be endorsed a notice requiring the opposite party to deliver his pleading in reply thereto within the prescribed time.

Upon every demurrer there shall be endorsed a notice requiring the party whose pleading is demurred to to set the demurrer down within ten days for argument.

ORDER XVIII.

Particulars.

Order for particulars.

1. The Court or a Justice may in any case order either party to deliver to the other a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice, or written proceeding, upon such terms, as to costs and otherwise, as are just.

Effect of order for particulars.

2. The party at whose instance particulars have been delivered under a Justice’s order shall, unless the other otherwise provides, have the same length of time for taking any step in the action after the delivery 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 to stay proceedings, or to give any extension of time.

Actions for damage by collision.

Preliminary acts to be filed.

3. In actions for damage by collision between vessels, unless the Court or a Justice otherwise orders, the plaintiff shall within seven days after the commencement of the action, and the defendant shall within seven days after appearance, and before any pleading is delivered, file in the Registry a document to be called a preliminary act, which shall be sealed up, and shall not be opened until ordered by the Court or a Justice, and which shall contain a statement of the following particulars:—

(a)The names of the vessels which came into collison, and the names of their masters;

(b) The time of the collision;

(c) The place of the collision;

(d) The direction and force of the wind;

(e) The state of the weather;

(f) The state and force of the tide;

(g) The course and speed of the vessel when the other was first seen;

(h) The lights, if any, carried by her;

(i) The distance and bearing of the other vessel when first seen;

(k) The lights, if any, of the other vessel which were first seen;

(l)Whether any lights of the other vessel, other than those first seen, came into view before the collision;

(m) What measures were taken, and when, to avoid the collision;

(n) The parts of each vessel which first came into contact;

(o) What sound signals, if any, were given, and when;

(p) What sound signals, if any, were heard from the other vessel and when.

The Court or a Justice may, on the application of either party, order the preliminary acts to be opened at any time and the evidence to be taken thereon without its being necessary to deliver any pleadings; but in that case, if either party intends to rely on the defence of compulsory pilotage, he may do so, upon giving notice thereof in writing to the other party, within two days from the opening of the preliminary acts or within such further time as the Court or a Justice allows.

2	10	0
64.	For or in opposition to any motion to be made in Court, or any application in Chambers	0	8	0
Or not to exceed.................................................................................................	1	10	0
65.	To appeal against order of Court or a Justice, and to appear therein........................	1	1	0
Or such amount as the taxing officer thinks fit.
66.	To add parties by order of Court or a Justice.........................................................	0	8	0
67.	For counsel to advise on evidence when the evidence-in-chief is to be taken orally.	0	16	0
Or not to exceed.................................................................................................	2	10	0
68.	For bond or any other deed..................................................................................	0	10	0
69.	To retain counsel, including preparation of retainer...............................................	0	8	0

 

THE SCHEDULE.—continued.

COSTS—continued.

Subject-matter—continued.

Instructions—continued.

£	s.	d.
70.	For brief on application in Chambers..................................................................	0	16	0
Or such amount as the taxing officer thinks fit.
71.	For brief such fee may be allowed as the taxing officer thinks fit, having regard to all the circumstances of the case, and to other allowances, if any, for attendances on witnesses, and procuring evidence.
72.	An allowance in the nature of instructions for brief may be allowed to a solicitor when he conducts the cause or matter himself.

Drawing Pleadings, &c.

73.	Statement of claim, including petition..................................................................	0	12		0
Or per folio.........................................................................................................	0	1		9
74.	Defence, or plea, or demurrer..............................................................................	0	12		0
Or per folio.........................................................................................................	0	1		9
75.	Counter-claim.....................................................................................................	0	12		0
Or per folio.........................................................................................................	0	1		9
76.	Reply with or without joinder of issue, confession, of defence, and for any pleading (not being petitions or summonses), and amendments of any pleading...............................	0	10	0
Or per folio.........................................................................................................	0	1		9
77.	Particulars, breaches, and objections, when required.............................................	0	6		0
Or such amount as the taxing officer thinks fit, not exceeding per folio..................
78.	Special case, whether original or in any action, affidavits in answer to interrogatories, and other affidavits and interrogatories, per folio............................................................	0	1		9
79.	Affidavits verifying pleadings or other document, such allowance as the taxing officer thinks fit.
80.	Briefs, including necessary and proper observations, per folio................................	0	1		9
81.	Brief to hear reserved judgment, including copy (not allowed in chamber applications)	0	8		0
82.	Fee to one counsel thereon, including clerk’s fee...................................................	3	5		6
83.	Or such amount as in the circumstances of the case the taxing officer thinks reasonable. In special cases the taxing officer may allow for the attendance of more than one counsel.
84.	Accounts, statements, and other documents when required, not exceeding per folio.	0	1		9
85.	Advertisements to be signed by any officer of the Court or a Justice, including attendance therefor......................................................................................................................	0	12		0
Or per folio.........................................................................................................	0	1		9
88.	Bill of costs for taxation including copy for the taxing officer, per folio..................	0	1		9
87.	No more than one affidavit of increase is to be allowed unless, in the opinion of the taxing officer, more than one affidavit is necessary.
88.	Endorsement of fiat on petition or copy thereof or of citation on statement of claim	0	5		0
89.	Preparing certificate of non-appearance, or as to funds, including copy for signature	0	5		0
90.	Affidavit of service of any writ or other proceedings, including copy, where, in the opinion of the taxing officer, such affidavit was required........................................................	0	6		0
91.	Marking each annexure or exhibit to any affidavit.................................................	0	1		0
92.	Any other document not specially provided for, per folio.......................................	0	1		9

 

THE SCHEDULE.—continued.

COSTS—continued.

Subject-Matter—continued

£	s.	d.
93.	Copies. Of pleadings, briefs, and other documents, where no other provision is made, at per folio	0	0	8
94.	If copy is attested, per folio................................................................................	0	0	9
95.	Where pursuant to Rules of Court any documents are printed, the solicitor of the party printing may be allowed, for a copy for the printer, at per folio...........................................	0	0	8
96.	The taxing officer shall only allow for a copy of such documents when in his opinion it would not be reasonably safe or convenient to send the original to the printer.
97.	And for examining the proof print, at per folio....................................................	0	0	3
98.	And for printing, the amount actually and properly paid to the printer, not exceeding per folio	0	2	6
99.	And when extra copies are necessary, for every twenty copies beyond the first twenty, at per folio	0	0	3
100	And where any part shall be properly printed in a foreign language, or as a fac-simile, or where any alteration in the document being printed becomes necessary after the first proof, such further allowance shall be made as the taxing officer thinks reasonable. These allowances are exclusive of all necessary attendances upon the printer.
101.	Close copies, whether printed or written, are not to be allowed as of course, but the allowance is to depend upon the propriety of making or sending the copies, which in each case is to be shown and considered by the taxing officer.
102.	Inserting amendments in printed copies of any pleading, special case, or petition, when not reprinted or in written copies when made under order of the Court or a Justice...............	0	5	0
Or per folio.......................................................................................................	0	0	8
103.	For completing and filling in printed forms, except as otherwise provided, such allowance as the taxing officer deems reasonable.
104.	Where any documents are typewritten, only half the ordinary charge is to be allowed for any second copy, and one-third for any third or additional copy.
105.	No allowance will be made for letterpress copies, or for any carbon copies which are not clear and legible.
Perusals.
106.	Of statement of claim, plea, demurrer, petition, answer, defence, reply, or other similar pleading, or of any notice of motion by the solicitor of the party to whom the same is delivered	0	8	0
Or per folio.........................................................................................................	0	0	6
107.	Of amendment of any such pleading in writing......................................................	0	8	0
Or per folio of amendment...................................................................................	0	0	6
108.	If same reprinted.................................................................................................	0	8	0
Or per folio of amendment...................................................................................	0	0	6
109.	Of interrogatories to be answered by a party or his solicitor....................................	0	12	0
Or per folio.........................................................................................................	0	1	6
110.	Of special case, particulars and objections, or statement of facts by the solicitor of any party, except the one by whom it is prepared........................................................................	0	8	0
Or per folio.........................................................................................................	0	0	6
111.	Of copy order to add parties.................................................................................	0	8	0
112.	Of notice to produce on trial or hearing of action, and notice to admit by the solicitor of the party served............................................................................................................	0	12	0
113.	Or, if to admit facts, per folio...............................................................................	0	1	6
114.	Of affidavit in answer to interrogatories by the solicitor of the party interrogating, of affidavit or list of documents, and of other special affidavits by the solicitor of the party against whom the same can be read, per folio..............................................................................	0	0	6

THE SCHEDULE.—continued.

COSTS—continued.

Subject-Matter—continued.

£	s.	d.
Perusals—continued.
115.	Of deeds, accounts, and any other documents when no other provision is made.........	0	0	6
116.	Of exhibits or annexures to affidavits or other documents, evidence taken on commission, or de bene esse, such, allowance as the taxing officer thinks fit, not exceeding per folio.	0	0	6

Attendances.

117.	To obtain consent of next friend to sue in his name, or of a guardian ad litem............	0	8	0
118.	To inspect or produce for inspection, documents pursuant to a notice to admit...........	0	8	0
Or per hour.......................................................................................................	0	16	0
119.	To examine and sign admissions..........................................................................	0	12	0
Or per folio.......................................................................................................	0	2	0
120.	To inspect, or produce for inspection, documents referred to in any pleading, notice in lieu of pleading, or affidavit...................................................................................................	0	8	0
Or per hour.......................................................................................................	0	16	0
121.	To obtain or give any necessary or proper consent or undertaking............................	0	8	0
122.	To obtain an appointment to examine witnesses.....................................................	0	8	0
123.	On examination of witnesses before an officer of the Court or other person with counsel	1	5	0
124.	For every hour after the first hour........................................................................	0	16	0
125.	Or if without counsel..........................................................................................	2	10	0
126.	For every hour after the first hour........................................................................	2	0	0
127.	If the examination is more than two miles from the place of business of the solicitor, then such additional allowance may be made as the taxing officer thinks reasonable.
128.	On deponents being sworn to a statement of defence or affidavit, or by a solicitor or his clerk to be sworn to an affidavit.....................................................................................	0	8	0
129.	On a summons in Chambers if matter heard..........................................................	0	15	0
Or not to exceed................................................................................................	3	3	0
130.	If matter in list but not heard...............................................................................	0	10	0
131.	If matter heard without counsel............................................................................	2	10	0
Or not to exceed................................................................................................	4	4	0
132.	To file registrar’s and taxing officer’s certificates, and get copy marked as an office copy	0	5	0
133.	On counsel with brief or other papers—................................................................
134.	If counsel’s fee under five guineas.....................................................................	0	6	0
135.	If five guineas or under ten guineas...................................................................	0	12	0
136.	If ten guineas or under twenty guineas...............................................................	0	16	0
137.	If twenty guineas or under fifty guineas..............................................................	1	5	0
138.	If fifty guineas or more....................................................................................	1	15	0
139.	On counsel to mark refresher or to appoint conference or consultation......................	0	8	0
140.	On consultation or conference with counsel...........................................................	1	1	0
Or not to exceed................................................................................................	3	3	0
141.	Examining appeal books, per hour.......................................................................	0	8	0
142.	To enter or set down cause, special case, or appeal for hearing or trial......................	0	8	0
143.	In Court on hearing of motion, originating summons, special case, petition, appeal, or any other hearing where no witnesses are examined, per day........................................................	1	1	0
Or not to exceed................................................................................................	5	5	0
144.	If matter heard without counsel, such allowance as the taxing officer thinks reasonable.
145.	If matter in list but not heard...............................................................................	0	16	0
146.	On hearing or trial of any cause or matter or issue of fact in the city or town where the solicitor resides or carries on business, when witnesses are examined, per day.............................	1	10	0
Or not to exceed................................................................................................	6	6	0

1539/27.—5

THE SCHEDULE.—continued.

COSTS—continued.

Subject-Matter—continued.

Attendances—continued.

£	s.	d.
147.	If matter heard without counsel, such allowance as the taxing officer thinks reasonable.
148.	When in the opinion of the taxing officer it is necessary for two principals, or for a solicitor and managing clerk to attend the trial, an additional allowance may be made per day of	2	2	0
149.	Clerk’s attendance, if witnesses are examined or cross examined, per day.........	1	5	0
150.	Where in the opinion of the taxing officer it is necessary for a solicitor to leave the city or town where he resides or carries on business and to journey to another place an allowance may be made for each day (excepting Sunday) that he is necessarily absent, not exceeding	10	10	0
If clerk attends in place of principal a similar daily allowance may be made not exceeding	6	6	0
And expenses for solicitor (in addition to actual reasonable fares or payment for transport or conveyance) each day, including Sundays, for maintenance, not exceeding...	1	10	0
In all such cases the taxing officer must be satisfied that the purpose of the journey could not have been satisfactorily accomplished by an agent.
If clerk attends in place of principal, not exceeding, per day.............................	1	1	0
If solicitor has to attend on more than one trial or hearing at the same time and place, for each day of hearing in each case, not exceeding..................................................	6	6	0
If clerk attends on more than one trial in place of principal, in each case for each day	4	4	0
The expenses in such cases shall be rateably divided.
No allowance for maintenance shall be made when the cost of transport includes the supply of meals.
The allowance for any day which is occupied in travelling shall not exceed two-thirds of the above amounts.
For the purpose of this item a day means a period of twenty-four hours.
151.	To hear reserved judgment ............................................................................ Or not to exceed............................................................................................	0 2	10 2	0 0
152.	To deliver papers (when required) for the use of a Justice................................	0	5	0
153.	If more than one Justice.................................................................................	0	12	0
154.	On taxation of a bill of costs...........................................................................	0	12	0
Unless the same necessarily occupies so much time that the taxing officer considers such amount inadequate, in which case he may allow such further fee as he thinks proper.
155.	To obtain signature of the Registrar to any order made in Chambers, or to obtain signature and seal to any order made by Court.................................................................	0	8	0
156.	To file, lodge, or deliver any document or other papers (including filing in lieu of service, but not other services), to obtain an appointment from any officer of the Court, to insert advertisement, or other attendance of a similar nature capable of performance by a junior clerk.........................................................................................................	0	5	0
157.	At Registry, in connexion with the payment of money into or out of Court........	0	8	0
158.	To search whether appearance or any document is filed when necessary...........	0	5	0
159.	To bespeak and for copy of jury panel, or any other document necessarily ordered from an officer of the Court..............................................................................................	0	8	0
160.	Upon any reference before the Principal Registrar, or other officer of the Court to settle minutes of judgment, or order or the like................................................................ Or such amount as the taxing officer considers reasonable...............................	0	12	0
161.	To present a special petition, and for same answered.......................................	0	12	0

 

THE SCHEDULE.—continued.

COSTS—continued.

Subject-Matter—continued.

£	s.	d.
Attendances—continued.
162.	On printer to insert advertisement in a paper......................................................					0	5	0
163.	If the attendance is one requiring the personal attendance of the solicitor or his managing clerk, and involving the exercise of skill or legal knowledge, per hour.....................					0	12	0
Or such larger amount as the taxing officer thinks reasonable, having regard to the importance or difficulty of the subject-matter of the attendance, not exceeding					1	10	0
164.	Any attendance for which no other provision is made......................................... Or such amount as the taxing officer thinks reasonable.......................................

0	8	0
Letters, &c.
165.	In agency causes or matters for letters..............................................................					0	10	0
166.	In addition to the above, an allowance is to be made for the necessary expense of postages, carriage, and transmission of documents.
167.	Necessary letters ............................................................................................					0	4	0
Or not to exceed..............................................................................................					2	0	0
168.	Circular letters after the first............................................................................					0	1	6
Views by Jury.
169.	Such fees shall be allowed as the taxing officer considers necessary, including all fees paid for travelling.
Maps, Plans, and Models.
170.	The taxing officer may allow such fees for maps, plans, and models for use at the trial or hearing as he considers reasonable.
171.	Witnesses’ Expenses.		Allowance per day.
Professional men, including— Medical Practitioners Legal Practitioners Architects Engineers or Surveyors Dentists Veterinary Surgeons University Professors Accountants (carrying on business as principals) Patent Attorneys	£ 1	s. 1	d.£ 0 to 3		s. 3	d. 0
If country witnesses, an additional daily allowance of..................		0	5	0 to 1		10	0
Graziers, merchants, bankers, accountants, auctioneers, and the like, per day............................................................................................		0	10	6 to 2		2	0
If country witnesses, an additional daily allowance of..................		0	5	0 to 1		5	0
Police inspectors, journalists, tradesmen, artisans, mechanics, master mariners, farmers, clerks, and the like, per day......................................		0	7	6 to 1		10	0
If country witnesses, an additional daily allowance of..................		0	2	6 to 0		15	0
Constables, apprentices, sailors, labourers, and the like, per day...		0	5	0 to 1		0	0
If country witnesses, an additional daily allowance of..................		0	2	0 to 0		10	0
Female witnesses according to station in life, per day..................		0	2	6 to 3		3	0
If country witnesses, an additional daily allowance of..................		0	2	0 to 1		10	0

 

THE SCHEDULE.—continued.

COSTS—continued.

Subject-Matter—continued.

Witnesses’ Expenses—continued.

No witness shall be deemed to be a country witness who resides within 5 miles of the principal post-office or court house of the city or town where the cause or matter is tried or heard, or who ordinarily proceeds to some office or place of employment which is within 5 miles of such post-office or court house.
In addition to the above allowances, country witnesses may be allowed such sum as the taxing officer thinks reasonable, to provide for actual expenses of conveyance to and from the place of trial or hearing, excluding any charges for maintenance or sustenance.
The taxing officer may also allow such amount as he thinks has been reasonably and properly incurred and paid to witnesses for qualifying to give skilled evidence.
Disbursements.
172.	All Court fees, counsels’ fees, and other fees and payments which, in the opinion of the taxing officer have been properly paid, shall be allowed.”.

 

By Authority: H. J. Green, Government Printer, Canberra.