Rules of the Supreme Court of the Northern Territory of Australia (Cth)
STATUTORY RULES
____________
RULES UNDER THE NORTHERN TERRITORY SUPREME COURT ACT 1961-1966,*
I, RICHARD ARTHUR BLACKBURN, the senior Judge
of the Supreme Court of the Northern Territory of Australia, in pursuance of
the powers conferred on me by the
Dated this ninth day of December, 1966.
Senior Judge.
_________
RULES OF THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
ORDER 1.
Preliminary.
1. These Rules may be cited as the Rules of the Supreme Court of the Northern Territory of Australia.
2. These Rules come into operation on the first day of February, 1967, and shall apply to all proceedings commenced or instituted on or after that date.
3. The Rules of Court that were in force under the
Supreme Court Ordinance 1911-1960 of the Territory immediately before the commencement of the Act are repealed.
4. These Rules are divided into Parts, as follows:—
Part 1.—Preliminary.
Part 2.—Civil Jurisdiction.
5. (1.)—In these Rules, unless the contrary intention appears—“action” means a cause commenced by a writ of summons;
“additional Judge” means a Judge appointed under sub-section (2.) of section 7 of the Act;
“administration and probate jurisdiction” means jurisdiction under the
Administration and Probate Act and Ordinance 1891 to 1940;
* Notified in the
Northern Territory Government Gazette on 21 December, 1966.
3467/66.—PRICE 3/23.11.1966
“Australian diplomatic or consular agent” includes a person appointed to hold or act in any of the following offices (being an office of the Commonwealth) in a country or place outside Australia:—
(
a ) ambassador;(
b ) high commissioner;(
c ) minister;(
d ) head of mission;(
e ) commissioner;(
f ) charge d’affaires;(
g ) counsellor, secretary or attaché at an embassy, high commissioner’s office, legation or other post;(
h ) consul-general;(
i ) consul;(
j ) vice-consul;(
k ) trade commissioner; and(
l ) consular agent;“British possession” means any part of Her Majesty’s dominions other than the Commonwealth and the United Kingdom and includes the Dominion of Canada and the Dominion of New Zealand but does not include a protectorate or a protected state;
“Cause Book” means the Cause Book referred to in Order 6, rule 5;
“consular agent” means a consul-general, consul, vice-consul, proconsul or consular agent, or acting consul-general, acting consul, acting vice-consul, acting pro-consul or acting consular agent;
“Court of Summary Jurisdiction” means Justices forming a Court for the purposes of hearing and adjudicating upon any case or matter which they have power to determine in a summary manner, and whether they are acting under the
Justices Ordinance 1928-1965 or under any other Ordinance or Act of the State of South Australia in force in the Territory incorporated with theJustices Ordinance 1928-1965, or by virtue of their commissions, or under the common law;“Crown Solicitor” means the Crown Solicitor of the Commonwealth;
“diplomatic agent” means an ambassador, envoy, minister, chargé d’affaires, or secretary of an embassy or a legation;
“Judge” means the Judge appointed under sub-section (1.) of section 7 of the Act or an additional Judge;
“Justices” includes a Special Magistrate or any other single Justice, where a Special Magistrate or one Justice (as the case may be) has jurisdiction or authority to act in relation to the matter in question;
“Master’s office” or “the office of the Master” means the offices of the Court;
“mentally defective person” means a person who, owing to his mental condition, is incapable of managing himself or his affairs and requires oversight, care or control for his own good or in the public interest;
“originating summons” means a summons by which a matter is commenced otherwise than by writ, notice of motion, special case, or petition;
“prescribed” means prescribed by these Rules;
“probate action” means an action or other matter relating to the grant or recall of probate or of letters of administration, other than common form business;
“sealed” means sealed with the Seal referred to in section 30 of the Act, or such other seal as is prescribed by these Rules;
“taxing officer” means the person whose duty it is to tax costs in the Court;
“to file” means to file in the Master’s office, and “file”, “filed”, and “filing” have corresponding meanings;
“the Act” means the
Northern Territory Supreme Court Act 1961-1966;“the Court”, or “the Supreme Court”, means the Supreme Court of the Northern Territory of Australia;
“the Master” means the Master appointed in pursuance of section 31 of the Act, and includes an Acting Master and a Deputy Master and any person who, in relation to any act or duty is directed or appointed by the Judge to perform that act or duty;
“the senior Judge” means the Judge appointed under sub-section (1.) of section 7 of the Act or, if that Judge is, by reason of absence or for any other reason, unable to discharge the duties of his office or there is no Judge holding office by virtue of appointment under that sub-section, the senior additional Judge who is available for the discharge of duties under the Act;
“the Sheriff” means the sheriff appointed under section 5 of the
Sheriff Ordinance 1962-1966 and includes a deputy sheriff appointed under that section;“writ of execution” includes writs of
fieri facias ,capias , sequestration and attachments, and all subsequent writs that issue for giving effect thereto, and “issuing execution against any party” means the issuing of any such process against his person or property as is applicable to the case.
(2.) In these Rules, unless the contrary intention appears—
(
a ) any reference to an Order or to a rule shall be read as a reference to an Order or rule, as the case may be, contained in these Rules; and(
b ) any reference to a Schedule shall be read as a reference to a Schedule to these Rules.
6. —(1.) Part 2 of these Rules shall apply to all proceedings in the Court in any of its jurisdictions, unless, and except in so far as, other provision is made by law or by these Rules.
(2.) Part 2 of these Rules shall not apply to—
(
a )proceedings on the Crown side of the Court or criminal proceedings; or(
b ) proceedings in the revenue jurisdiction of the Court.
(3.) Orders 32, 37, 40, 54, 64, 65, 66 and 68 shall, so far as they are applicable, apply to all civil proceedings on the Crown side of the Court, including Mandamus, Prohibition and Quo Warranto.
(4.) Nothing in these Rules shall, unless the contrary intention appears, affect the practice or procedure in any criminal proceedings.
ORDER 2.
Commencement of Civil Proceedings.
1. —(1.) Subject to these Rules, causes, suits and matters in the Court may be commenced by writ of summons, motion, originating summons, or order to show cause.(2.) Causes and matters which are by any law 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.(3.) Where by any law, or by these Rules, any person is authorized to make any application to the Court or the Judge 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 that law, or by these Rules, the application shall be made by motion or by originating summons.
ORDER 3.
WRIT OF Summons.
1. —(1.) Except as provided in the last preceding Order, every cause shall be commenced by writ of summons, which shall be endorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.(2.) It shall not be necessary to obtain the leave of the Court or a Judge to issue any writ of summons for service within the Commonwealth.
(3.) A writ of summons for service out of the Commonwealth, or of which notice is to be given out of the Commonwealth, shall not be issued without leave of the Court or a Judge.
2. Any costs occasioned by the use of any more prolix or other forms of writs and of indorsements thereon than the forms prescribed shall be borne by the parties using the same, unless the Court or a Judge otherwise directs.
3. The writ of summons for the commencement of an action shall, except in the cases in which any different form is prescribed, be in accordance with Form 1 or Form 2 in the First Schedule.
4. A writ of summons to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be in accordance with Form 3 or Form 4, in the First Schedule. Such notice shall be in accordance with Form 5 in the First Schedule.
5. Every writ of summons, and also (unless by any law or by these Rules it is otherwise provided) every other writ, shall bear date on the day on which the same is issued, and shall be tested in the name of the Senior Judge.
6. The time to be limited in the writ of summons for the appearance of any defendant shall be—(
a ) in the case of a writ to be served in the Territory—(i) if the place for service is not more than 200 miles from Darwin—eight days;
(ii) if the place for service is more than 200 but not more than 400 miles from Darwin—twelve days;
(iii) if the place for service is more than 400 but not more than 600 miles from Darwin—sixteen days; and
(iv) if the place for service is more than 600 miles from Darwin—twenty-one days;
(
b )in the case of a writ to be served elsewhere within the Commonwealth—(i) if the place for service is in an external Territory of the Commonwealth—such time as a Judge directs or, if no time is so directed, fifty-six days; and
(ii) in any other case—twenty-eight days; and
(
c ) in the case of a writ to be served out of the Commonwealth—such time as is limited by the order giving leave to effect such service, or, in the case of a writ to which Order 12, rule 3 applies, by the order giving leave to issue the writ.
ORDER 4.
Indorsement of Claim.
1. The indorsement of claim shall be made on every writ of summons before it is issued, and shall contain a statement sufficient to give notice of the nature of the claim and the cause thereof and of the relief or remedy required in the action, and, in case of non-compliance with this rule, the defendant may apply before appearance to set aside or amend the writ, or for particulars.
2. In the indorsement required by rule 1 of this Order, it shall not be necessary to set forth the precise ground of complaint or the precise remedy or relief to which the plaintiff considers himself entitled.
3. If the plaintiff sues, or the defendant, or any of the defendants, is sued in a representative capacity, the indorsement shall show, in accordance with such of the indorsements in Form 6 in the First Schedule as is applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued.
4. In probate actions the indorsement shall show whether the plaintiff claims as creditor, executor, administrator, residuary legatee, legatee, next of kin, heir-at-law, devisee, or in any and what other character.
5. In actions—
(
a )where the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising—(i) upon a contract, expressed or implied (as, for instance, on a bill of exchange, promissory note, or cheque, or other simple contract debt);
(ii) on a bond or contract under seal for payment of a liquidated amount of money;
(iii) under any law where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty;
(iv) on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand; or
(v) on a trust;
(
b ) where a landlord seeks to recover possession of land, with or without a claim for rent or mesne profits, against the tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for nonpayment of rent, or against persons claiming under such tenant; or(
c ) where the plaintiff seeks to recover possession of a specific chattel, with or without a claim for the hire thereof or for damages for its detention,
and in all other actions for damages (except actions for libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage, and actions in which fraud is alleged by the plaintiff), the writ of summons may, at the option of the plaintiff, be specially indorsed with or accompanied by a statement of his claim, or of the remedy or relief to which he claims to be entitled.
6. —(1.) Wherever the plaintiff’s claim is for a debt or liquidated demand only, the indorsement, 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 is disallowed, the plaintiff’s solicitor shall pay the costs of taxation.(2.) Subject to Order 64 rule 3 of these Rules, the plaintiff may claim the following amounts for costs under this rule, and, when judgment is obtained, those costs shall not be subject to taxation:—
| $15.00 |
Costs of judgment................................................................................. | $15.00 |
6. In all cases in which the plaintiff, in the first instance, desires to have an account taken, the writ of summons shall be indorsed with a claim that such account be taken.
7. In actions for libel the indorsement on the writ shall state sufficient particulars to identify the publications in respect of which the action is brought.
ORDER 5.
Indorsement of Address.
1. —(1.) The solicitor of a plaintiff suing by a solicitor shall indorse upon the writ of summons or notice in lieu of the writ of summons the address of the plaintiff, and also his own name and place of business, which shall be his address for service, if such place of business is not more than three miles from the office of the Master, and also, if his place of business is more than three miles from the office of the Master, another place, to be his address for service, which shall not be more than three miles from the office of the Master, where writs, notices, pleadings, petitions, orders, summonses, warrants, and other documents, proceedings, and written communications may be left for him.(2.) Where any such solicitor is only agent of another solicitor, he shall add to his own name and place of business the name and place of business of the principal solicitor.
2. A plaintiff suing in person shall indorse upon the writ of summons or notice in lieu of the writ of summons his place of residence, his occupation, and a place, to be his address for service, which shall not be more than three miles from the office of the Master, where writs, notices, pleadings, petitions, orders, summonses, warrants, and other documents, proceedings, and written communications may be left for him.
3. Where a plaintiff sues in person and no person can be found at the place of residence or address for service indorsed by him, all such writs and other documents as are mentioned in the last preceding rule may be served on him by filing the same.
4. In all cases where proceedings are commenced otherwise than by writ of summons, the preceding rules of this Order shall apply to the document by which such proceedings are originated as if it were a writ of summons.
ORDER 6.
Issue of Writs of Summons.
1. Every writ of summons shall be issued out of the office of the Master.
2. Writs of summons shall be prepared by the plaintiff or his solicitor.
3. Every writ of summons shall be sealed by the Master, and shall thereupon be deemed to be issued.
4. The plaintiff or his solicitor shall, on presenting any writ of summons for sealing, leave with the Master a copy of such writ, and all the indorsements thereon, and such copy shall be signed by or for the solicitor leaving the same, or by the plaintiff himself if he sues in person.
5. The Master shall file the copy, and an entry of the filing thereof shall be made in a book to be called the Cause Book, which shall be in such form and kept in such manner as the senior Judge from time to time directs, and the action shall be distinguished by the date of the year and a number.
6. The issue of a writ of summons in a probate action shall be preceded by the filing of an affidavit by the plaintiff, or by one of the plaintiffs, verifying the indorsement on the writ.
ORDER 7.
Concurrent Writs and Originating Summonses.
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 writ or writs. Each concurrent writ shall bear teste of the same day as the original writ, and shall be sealed by the Master with a seal bearing the word “Concurrent”, and the date of issuing the concurrent writ:Provided that a concurrent writ or writs shall only be in force for the period during which the original writ in such action is in force.
2. A concurrent originating summons may be issued in the same manner,mutatis mutandis, as a concurrent writ of summons.
3. A writ for service within the jurisdiction may be issued and marked as a concurrent writ with one for service, or whereof notice is to be given in lieu of service, out of the jurisdiction, and a writ for service, or whereof notice is to be given in lieu of service, out of the jurisdiction may be issued and sealed as a concurrent writ with one for service within the jurisdiction.
4. An originating summons for service within the jurisdiction may be issued and marked as a concurrent originating summons with one for service out of the jurisdiction, and an originating summons for service out of the jurisdiction may be issued and marked as a concurrent originating summons with one for service within the jurisdiction.
ORDER 8.
I.—Disclosures by Solicitors and Plaintiffs.
1. —(1.) Every solicitor whose name is indorsed on any writ of summons shall, on demand in writing made by or on behalf of any defendant who has been served therewith or has appeared thereto, declare forthwith in writing whether such writ has been issued by him or with his authority or privity.
(2.) If the solicitor answers in the affirmative, then he shall also, in case the Court or a Judge so orders and directs, declare in writing within a time allowed by the Court or the Judge, the profession, occupation, or quality, and place of abode of the plaintiff, on pain of being guilty of a contempt of Court.
(3.) If the solicitor declares that the writ was not issued by him or with his authority or privity, all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the Court or a Judge.
II.—Change of Solicitors.
2. —(1.) A party suing or defending by a solicitor shall, subject to Order 19, rule 33, be at liberty to change his solicitor in any cause or matter, without an order for that purpose, upon notice of such change being filed, but until such notice is. filed and a copy thereof served, the former solicitor shall be considered the solicitor of the party.
(2.) The party giving the notice shall serve on every other party to the cause or matter (not being a party in default as to entry of appearance) a copy of the notice, indorsed with a memorandum stating that the notice has been filed.
3. Where a party, after having sued or defended in person, appoints a solicitor to act in the cause or matter, on his behalf, he may, either personally or by his solicitor, give notice of the appointment, and the provisions of this Order relating to a notice of change of solicitor shall, with the necessary modifications, apply to a notice of appointment of a solicitor.
4. Where a party, after having sued or defended by a solicitor, intends to act in person in the cause or matter, he may give notice stating his intention to act in person and giving an address for service, and the provisions of this Order relating to notice of change of a solicitor shall, with the necessary modifications, apply to a notice of intention to act in person.
5. —(1.) Where a solicitor who has acted for a party in a cause or matter has died, or becomes bankrupt, or cannot be found, or has ceased to have the right to practice in the Court, and the party has not given notice of change of solicitor or notice of intention to act in person, any other party to the cause or matter, may, on notice to be served on the first-named party personally, or by registered letter addressed to his last known place of address, unless the Court or a Judge otherwise directs, apply to the Court or a Judge for an order declaring that the solicitor has ceased to be the solicitor acting for the first-named party in the cause or matter, and the Court or a Judge may make an order accordingly.(2.) If an order is made accordingly—
(
a )the party on whose application it was made shall forthwith give notice of the making of the order to every other party to the cause or matter, not being parties in default as to entry of appearance; and(
b )the party whose solicitor has been removed shall either appoint another solicitor or else give such an address for service as is required to be given by a party acting in person, and shall comply with the provisions of this order relating to notice of appointment of a solicitor or notice of intention to act in person, and in default of his so doing, any documents in respect of which personal service is not required may be served on the party so in default by being filed.
(3.) An order made under this rule shall not affect the rights or liabilities of the solicitor and the party for whom he acted as between themselves
6 . —(1.) Where a solicitor who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with the provisions of this Order, the solicitor, on notice served on the party personally or by registered letter addressed to his last known place of address, unless the Court or a Judge otherwise directs, may apply to the Court or a Judge for an order to the effect that the solicitor has ceased to be the solicitor acting for the party in the cause or matter, and the Court or a Judge may make an order accordingly.Provided that unless and until the solicitor has complied with the next succeeding sub-rule he shall (subject to rules 2 and 5 of this Order) be deemed to be the solicitor of the party.
(2.) If an order is made under the last preceding sub-rule—
(
a ) the solicitor shall forthwith give notice of the making of the order to all parties to the cause or matter, not being parties in default as to entry of appearance; and(
b ) the party shall either appoint another solicitor or else give such an address for service as is required to be given by a party acting in person, and shall comply with the provisions of this Order relating to notice of appointment of a solicitor or notice of intention to act in person, and, in default of his so doing, any documents of which personal service is not required may be served on the party so in default by being filed.(3.) An order made under this rule shall not affect the rights and liabilities of the solicitor and the party for whom he acted as between themselves.
7. In this Order “address for service” means the address for service required by Order 5, rule 1 or rule 2.
8. A solicitor shall not act in any cause or matter for plaintiff and defendant, or for any two or more defendants having adverse interests in a cause or matter.
ORDER 9.
Renewal of Writ.
1. —(1.) An original writ of summons shall not be in force for more than twelve months from the day of the date thereof, including the day of such date, but if any defendant therein named is not served therewith, the plaintiff may, before the expiration of the twelve months, apply to the Court or a Judge for leave to renew the writ, and the Court or a Judge, 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 such renewal inclusive, and so from time to time during the currency of the renewed writ.
(2.) The writ shall in such case be renewed by being sealed by the Registrar with a seal bearing the word “Renewed” and the date of the day, month, and year of such renewal, upon delivery to him by the plaintiff or his solicitor of a memorandum in accordance with Form 7 in the First Schedule.
(3.) A writ of summons so renewed shall remain in force and be available to prevent the operation of any law 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 of summons.
2. The production of a writ of summons purporting to be sealed and showing such writ of summons to have been renewed in accordance with the provisions of the last preceding rule, shall be sufficient evidence of its having been so renewed, and of the commencement of the action as of the first date of such renewed writ for all purposes.
3. Where a writ, of which the production is necessary, has been lost, the Master, upon being satisfied of the loss and of the correctness of a copy thereof, may order that such copy shall be sealed and served in lieu of the original writ.
ORDER 10.
Service of Writ of Summons.
1. Service of a writ of summons shall not be required when the defendant, by his solicitor, undertakes in writing to accept service, and enters an appearance.
2. —(1.) Except where otherwise prescribed, every writ of summons shall be served personally.(2.) Personal service shall be effected by delivering to, and leaving with, or offering to deliver
to and leave with, the person to be served, a copy of the writ, in such a condition as to be open for examination, and at the same time, if that person so requires, showing him the original writ.(3.) If it is made to appear to the Court or a Judge that the plaintiff is from any cause unable to effect prompt personal service, the Court or the Judge may make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise, as is just.
3. When husband and wife are both defendants to the action, they shall both be served, unless the Court or a Judge otherwise orders.
4. When an infant is a defendant to the action, service on his or her father or guardian, or if none, then upon the person with whom the infant resides or under whose care he or she is, shall, unless the Court or a Judge otherwise orders, be deemed good service on the infant:Provided that the Court or a Judge may order that service made, or to be made, on the infant shall be deemed good service.
5. When a mentally defective person is a defendant to the action, service on—(a) the Public Trustee, if he has the custody or administration of the estate of the mentally defective person under the Mental Defectives Ordinance 1940-1964;
(b) the committee of the estate of the mentally defective person, if such a committee has been appointed under that Ordinance; or
(c) in any other case, the person with whom the mentally defective person resides or under whose care he is,
shall be deemed to be good service on that defendant unless the Court or a Judge otherwise orders.
6. In the absence of any statutory provision regulating-service of process, every writ of summons issued against a corporation aggregate may be served on the Mayor, president or other head officer, or on the town clerk, clerk, treasurer, manager, inspector or secretary of such corporation, and where by any law provision is made for service of any writ of summons, bill, petition, summons, or other process upon any corporation, or upon any society or fellowship, or any body or number of persons, whether corporate or unincorporate, every writ of summons may be served in the manner so provided.
7. Service of a writ of summons in an action to recover land may, in case of vacant possession, when it cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwelling-house or other conspicuous part of the property.
8. —(1.) The person serving the writ of summons shall, within three days at most after such service, indorse on the writ the day of the week and month of the service thereof, otherwise the plaintiff may not, in case of non-appearance, proceed by default, and every affidavit of service of such writ shall mention the day on which such indorsement was made.(2.) This rule shall apply to substituted as well as other service.
ORDER 11.
Substituted Service.
1. Every application to the Court or a Judge 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 12.
Service out of the COMMONWEALTH.
1. It shall not be necessary to obtain the leave of the Court or a Judge to serve within the Commonwealth any writ of summons, originating summons, petition, notice of motion, summons, order, notice or other document.
2. Service out of the Commonwealth of a writ of summons, or notice of a writ of summons, may be allowed by the Court or a Judge whenever—(
a )the whole subject-matter of the action is land situate within the Territory (with or without rent or profits) or the perpetuation of testimony relating to land within the Territory;
(
b ) any law, deed, will, contract, obligation or liability affecting land or hereditaments situate within the Territory is sought to be construed, rectified, set aside or enforced in the action;(
c ) any relief is sought against any person domiciled or ordinarily resident within the Territory;(
d ) the action is for the administration of the personal estate of any deceased person who, at the time of his death, was domiciled within the Territory, or for the execution (as to property situate within the Territory) of the trusts of any written instrument of which the person to be served is a trustee and which ought to be executed according to the law in force in the Territory;(
e ) the action is founded—(i) on any breach, or alleged breach, within the Territory, of any contract wherever made which, according to the terms thereof, ought to be performed within the Territory; or
(ii) on a tort committed within the Territory;
(
f ) any injunction is sought as to anything to be done within the Territory, or any nuisance within the Territory is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or(
g ) any person out of the Commonwealth is a necessary or proper party to an action properly brought against some person duly served within the Commonwealth.
3.—(1.) Notwithstanding anything contained in the last preceding rule, the parties to any contract or agreement may agree—
(
a ) that the Court shall have jurisdiction to entertain any action in respect of, or arising out of, that contract or agreement; and(
b ) that service of any writ of summons in any such action may be effected at any place within or without the Commonwealth, on any party, or any person on behalf of any party, or in any manner specified or indicated in that contract or agreement.(2.) Service of any such writ of summons at the place (if any), on the party or person (if any), or in the manner (if any) specified or indicated in the contract or agreement shall be deemed to be good and effective service wherever the parties are resident.
(3.) If no place, manner or person is so specified or indicated, the Court or a Judge may grant leave to serve the writ, or notice of the writ, out of the Commonwealth.
4. Every application for leave to serve a writ of summons, or notice thereof, out of the Commonwealth, shall be supported by affidavit or other evidence—(
a )stating that, in the belief of the deponent, the plaintiff has a good cause of action;
(
b )showing in what place or country the defendant is, or probably may be found;(
c ) stating whether the defendant is a British subject or not; and(
d ) stating the grounds upon which the application is made.
5. The Court or a Judge shall not grant leave to serve a writ of summons, or notice thereof, out of the Commonwealth unless the Court or the Judge is satisfied that the case is a proper one for servile out of the Commonwealth under this Order.
6. Any order giving leave to serve a writ of summons, or notice thereof, out of the Commonwealth shall limit a time after such service or notice within which the defendant is to enter an appearance, and in fixing that time the Court or a Judge shall have regard to the place where the writ is to be served or the notice given.
7. Where the defendant is neither a British subject nor within the United Kingdom or a British possession, notice of the writ, and not the writ itself, shall be served upon him.
8. Where leave is given under this Order to serve notice of a writ of summons out of the Commonwealth, the notice shall, subject to any direction given by the Court or a Judge as to the manner in which the notice shall be served or brought under the notice of the defendant, be served in the manner in which writs of summons are served.
9. Service out of the Commonwealth may be allowed by the Court or a Judge of—(
a ) an originating summons;(
b ) a petition;(
c ) a notice of motion;(
d )the writ of summons, or notice of the writ, in a probate action;(
e ) any other originating proceeding; or(
f ) any summons, order, or notice, in any proceedings duly instituted, whether by writ of summons or otherwise,and the provisions of rules 4, 5, 6, 7 and 8 of this Order shall,
mutatis mutandis, apply to such service.
10. Where leave is given in a civil or commercial cause or matter to serve any writ of summons, originating summons, notice or other document in any foreign country with which a Convention in that behalf has been or is made and extended to the Commonwealth, the following procedure shall, subject to any special provisions contained in the Convention, be adopted:—(1.) The party bespeaking such service shall file a Request in accordance with Form 8 in the First Schedule. The Request shall state the medium through which it is desired the service shall be effected, i.e. whether (
a ) directly through the British or Australian diplomatic or consular agent, or (b )through the foreign judicial authority, and shall be accompanied by the original document and a translation thereof in the language of the country in which service is to be effected, certified by or on behalf of the person
making the request, and a copy of each for every person to be served and any further copies which the Convention may require, unless the service is required to be made on a British subject directly through the British or Australian diplomatic or consular agent, in which case the translation and copies thereof need not accompany the Request, unless the Convention expressly requires that they should do so.
(2.) The documents to be served shall be sealed and shall be forwarded by the Master to the Attorney-General for transmission through the diplomatic channel to the foreign country.
(3.) An official certificate transmitted through the diplomatic channel by the foreign judicial authority, or by a British or Australian diplomatic or consular agent, to the Court, establishing the fact and the date of the service of the document shall be deemed to be sufficient proof of such service, and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these Rules in that behalf.
(4.) In cases where a writ of summons or notice thereof is served pursuant to this rule, and an official certificate of such service is produced, no endorsement of service under Order 10 rule 8 shall be required.
11. Where, in connexion with any civil or commercial matter pending before a Court or Tribunal of a foreign country which is a party to a Convention regarding Legal Proceedings in Civil and Commercial Matters which has been extended to the Commonwealth, a request for service of any document is received by the Master from any Consular or other authority of that country, the following procedure shall, subject to any special provisions contained in the Convention, be adopted:—(1.) The service shall be effected by such person as the Senior Judge from time to time appoints for that purpose, or by the authorized agent of that person, by delivering to and leaving with the person to be served the original document or a copy of that document, as indicated in the Request, and one copy of an English translation thereof, in accordance with the provisions of these Rules regulating the service of process.
(2.) No Court fees shall be charged for the service, but particulars of the charges of the person or agent who effects service shall be submitted to the Master, who shall certify the amount properly payable in respect thereof.
(3.) The Master shall transmit to the Attorney-General for transmission to the Consular or other authority making the request, a certificate establishing the fact and the date of the service, or indicating the reasons why it has not been possible to effect service, and a statement of the amount of the charges properly payable, certified in accordance with paragraph (2) of this rule.
12. Upon the application of the Crown Law Officer, with the consent of the Attorney-General, the Court or a Judge may make all such orders for substituted service or otherwise as are necessary to give effect to the rules of this Order.
ORDER 13.
Appearance.
1. A defendant shall enter his appearance to a writ of summons in the office of the Master.
2. A defendant shall enter his appearance by delivering to the Master a memorandum in writing, dated on the day of its delivery, and containing the name of the defendant’s solicitor, or stating that the defendant defends in person. He shall at the same time deliver to the Master a duplicate of the memorandum, which the Master shall seal with a seal bearing the words “Appearance Entered” showing the date on which the appearance is entered, and then return the duplicate memorandum to the person entering the appearance, and the duplicate memorandum so sealed shall be a certificate that the appearance was entered on the day indicated by the seal.
3. A defendant shall, on the day on which he enters an appearance to a writ of summons, give notice of his appearance to the plaintiff’s solicitor, or, if the plaintiff sues in person, to the plaintiff himself, by serving in the ordinary way at the address for service, or by prepaid letter directed to that address and posted on the day of entering appearance in due course of post, the sealed duplicate memorandum.
4. The solicitor of a defendant appearing by a solicitor shall state in such memorandum his place of business, which shall be his address for service if such place of business is not more than three miles from the office of the Master, and also, if his place of business is more than three miles from the office of the Master, another place, to be his address for service, which shall not be more than three miles from the office of the Master, and where any such solicitor is only agent of another solicitor, he shall add to his own name and place of business the name and place of business of the principal solicitor.
5. A defendant appearing in person shall state in such memorandum his address, and a place, to be his address for service, which shall not be more than three miles from the office of the Master.
6. If the memorandum does not contain such address it shall not be received, and if any such address is illusory or fictitious, the appearance may be set aside by the Court of a Judge, on the application of the plaintiff.
7. The memorandum of appearance shall be in accordance with Form 9 in the First Schedule.
8. Upon receipt of a memorandum of appearance, the Master shall forthwith enter the appearance in the Cause Book.
9. If two or more defendants in the same action appear by the same solicitor and at the same time, the names of all the defendants so appearing shall be inserted in the one memorandum.
S.A.O. 12 r. 9.
10. —(1.) A defendant may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court or a Judge to set aside the originating proceeding or the notice thereof, or the service of such originating proceeding or notice, or the order authorizing such service, on the ground of any informality or irregularity which renders the same invalid.
(2.) A defendant shall not, by entering a conditional appearance, be deemed to have submitted to the jurisdiction of the Court, except as to the costs occasioned by the appearance or by any application under this Rule.
(3.) The defendant shall forthwith apply in Chambers to have the questions raised by his conditional appearance decided. If such an application is not made within fourteen days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall (unless otherwise ordered) become and operate as an unconditional appearance.
11. A solicitor not entering an appearance in pursuance of his written undertaking so to do on behalf of any defendant shall be liable to an attachment.
12. A defendant may appear at any time before judgment. If he appears at any time after the time limited by the writ for appearance, he shall not, unless the Court or a Judge 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 writ.
13. Any person not named as a defendant in a writ of summons for the recovery of land may by leave of the Court or a Judge appear and defend, on filing an affidavit showing that he is in possession of the land either by himself or his tenant, and the Court or a Judge may strike out or confine appearances or defences set up by persons not in possession by themselves or their tenants.
14. Any person appearing to defend an action for the recovery of land as landlord in respect of property whereof he is in possession only by his tenant, shall state in his appearance that he appears as landlord.
15. Where a person not named as defendant in any writ of summons for the recovery of land has obtained leave of the Court or a Judge to appear and defend, he shall enter an appearance according to the preceding rules of this order, intituled in the action against the party named in the writ as defendant, and shall forthwith give notice of such appearance to the plaintiff’s solicitor, or to the plaintiff if he sues in person, and shall in all subsequent proceedings be named as a party defendant to the action.
16. Any person appearing to a writ of summons for the recovery of land may limit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty in his memorandum of appearance or in a notice intituled in the cause, and signed by him or his solicitor. The notice shall be served within four days after appearance, and an appearance where the defence is not so limited shall be deemed an appearance to defend for the whole.
17. The notice mentioned in the last preceding rule shall be in accordance with Form 10 in the First Schedule.
18. A defendant before appearing may, without obtaining an order to enter or entering a conditional appearance, serve notice of motion to set aside the writ, or the service upon him of the writ or of notice of the writ or to discharge the order authorizing such service.
ORDER 14.
Default of Appearance.
1. When no appearance has been entered to a writ of summons for a defendant who is an infant or a mentally defective person not so found by inquisition, the plaintiff shall, before proceeding with the action against the defendant, apply to the Court or a Judge for an order that some proper person be assigned guardian of such defendant, by whom he may appear and defend the action. But no such order shall be made unless it appears on the hearing of such application that the writ of summons was duly served, and that notice of such 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 such defendant was at the time of serving such writ of summons, and also (in the case of such defendant being 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 such infant, unless the Court or a Judge at the time of hearing such application dispenses with such last-mentioned service.
2. Where any 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, or under Order 15, rule 1, or Order 16, rule 1, he shall, before taking such proceeding upon default, file an affidavit of service, or of notice in lieu of service (as the case may be).
3. Where the writ of summons is indorsed for a liquidated demand, whether specially or otherwise, and the defendant fails or all the defendants (if more than one) fail to appear thereto, the plaintiff may enter final judgment for any sum not exceeding the sum indorsed on the writ, together with interest at the rate specified (if any), or (if no rate is specified) at the rate of eight per centum per annum, to the date of the judgment, and costs.
4. Where the writ of summons is indorsed for a liquidated demand, whether specially or otherwise, and there are several defendants, of whom one or more appear to the writ and another or others of them fail to appear, the plaintiff may enter final judgment as in the preceding rule against such as have not appeared, and may issue execution upon such judgment, without prejudice to his right to proceed with his action against such as have appeared.
5. Where the writ is indorsed with a claim for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, and the defendant fails, or all the defandants (if more than one) fail, to appear, the plaintiff may enter interlocutory judgment, and the value of the goods and the damages, or the damages only, as the case may be, in respect of the causes of action disclosed by the indorsement on the writ of summons shall be ascertained by the Court or a Judge.
6. Where the writ is indorsed as mentioned in the last preceding Rule and there are several defendants, of whom one or more appear to the writ and another or others of them fail to appear, the plaintiff may sign interlocutory judgment against the defendant or defendants so failing to appear,
and the value of the goods and the damages, or either of them, as the case may be, may be assessed, as against the defendant or defendants suffering judgment by default at the same time as the trial of the action or issue therein against the other defendant or defendants, unless the Court or a Judge otherwise directs, but the Court or a Judge may order that the value and amount of damages, or either of them, shall be ascertained in any way which the Court or a Judge directs.
7. Where the writ is indorsed with a claim for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, and is further indorsed for a liquidated demand, whether specially or otherwise, and any defendant fails to appear to the writ, the plaintiff may enter final judgment for the debt or liquidated demand, interest, and costs against the defendant or defendants failing to appear, and interlocutory judgment for the value of the goods and the damages, or the damages only, as the case may be, and proceed as mentioned in such of the preceding rules of this Order as are applicable.
8. In case no appearance is entered in an action for the recovery of land within the time limited for appearance, or if an appearance is entered but the defence is limited to part only, the plaintiff may enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part thereof to which the defence does not apply.
9. Where the plaintiff has indorsed a claim for mesne profits, arrears of rent, double value, or damages for breach of contract, or wrong or injury to the premises claimed upon a writ for the recovery of land, he may enter judgment as in the last preceding rule mentioned for the land, and may proceed as in the other preceding rules of this order as to such other claim so indorsed.
10. Where judgment is entered pursuant to any of the preceding rules of this Order, the Court or a Judge may set aside or vary such judgment upon such terms as are just.
11. In all actions not by the rules of this Order otherwise specially provided for, in case the party served with the writ does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service, and if the writ is not specially indorsed under Order 4, rule 5, of a statement of claim, the action may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 18.
12. All such proceedings as are mentioned in or on any writ of summons, capias, or foreign attachment, or in any notice issued under the Act or under these Rules shall and may be had and taken in default of a defendant’s appearance or putting in special bail (or as the case may be).
13- Where a defendant, or respondent to an originating summons to which an appearance is required to be entered, fails to appear within the time limited, the plaintiff or applicant may apply to the Court or a Judge
for an appointment for the hearing of such summons, and upon a certificate that no appearance has been entered, the Court or a Judge shall appoint a time for the hearing of such summons, upon such conditions (if any) as it or he thinks fit.
ORDER 15.
Leave to Sign Judgment or Defend Where Writ Specially Indorsed.
1. —(1.) Where a defendant appears to a writ of summons specially indorsed with or accompanied by a statement of claim under Order 4, rule 5, the plaintiff may, on affidavit made by himself or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed (if any liquidated sum is claimed), and stating that in his belief there is no defence to the action except as to the amount of damages claimed (if any), apply to a Judge for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff is entitled to.(2.) A Judge may thereupon, unless the defendent satisfies him that he has a good defence to the action on the merits, or discloses such facts as are deemed sufficient to entitle him to defend the action generally, make an order empowering the plaintiff to enter such judgment as is just, having regard to the nature of the remedy or relief claimed.
(3.) If, on the hearing of any application under this rule, it appears that any claim which could not have been specially indorsed under Order 4, rule 5, has been included in the indorsement on the writ, a Judge may, if he thinks fit, forthwith amend the indorsement by striking out that claim, or may deal with the claim specially indorsed as if no other claim had been included in the indorsement, and allow the action to proceed as respects the residue of the claim.
(4.) Where the plaintiff’s claim is for the delivery up of a specific chattel (with or without a claim for the hire thereof or for damages for its detention) a Judge may make an order for the delivery up of the chattel without giving the defendant the option of retaining the chattel upon paying the assessed value thereof, and that order, if it is not obeyed may be enforced by a writ of attachment or by a writ of delivery.
2. The application by the plaintiff for leave to enter final judgment under the last preceding rule shall be made by summons returnable not less than two clear days after service, accompanied by a copy of the affidavits and exhibits referred to therein.
3. —(1.) The defendant may show cause against such application by affidavit, or, (except in actions for the recovery of land, or for the delivering up of a specific chattel), by offering to bring into Court the sum indorsed on the writ, or a Judge may allow the defendant, or any other person, to be examined on oath.(2.) The affidavit shall state whether the defence alleged goes to the whole or to part only, and (if so) to what part, of the plaintiff’s claim.
(3.) A Judge may, if he thinks fit, order the plaintiff or the defendant, or, in the case of a corporation, any officer thereof, to attend and be examined and cross-examined on oath, or to produce any papers, books, or documents, or copies of or extracts therefrom.
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 such part of his claim as the defence does not apply to or as 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 Sheriff, the taxation of costs, or otherwise, as a Judge thinks fit, and the defendant may be allowed to defend as to the residue of the plaintiff’s claim.
5. If it appears to a Judge that any defendant has a good defence to, or ought to be permitted to defend, the action, and that any other defendant has not such defence and ought not to be permitted to defend, the former defendant may be permitted to defend, and the plaintiff may enter final judgment against the latter defendant, and may issue execution upon such judgment without prejudice to his right to proceed with his action against the former defendant.
6. Leave to defend may be given unconditionally or subject to such terms as to giving security or time or mode of trial or otherwise, as a Judge thinks fit.
7. A Judge may, with the consent of all parties, dispose of the action finally, and without appeal, in a summary manner.
8. Where, in the case of a claim for unliquidated damages, the Court or a Judge has given leave to enter interlocutory judgment, a writ of inquiry shall issue to assess the value of the goods and the damages, or the damages only, to be awarded, but the Court or a Judge may order that, instead of a writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way which the Court or the Judge directs.
9. —(1.) Where leave, whether conditional or unconditional, is given to defend, a Judge may give all such directions as to the further conduct of the action as might be given on a summons for directions under Order 33, and may order the action to be forthwith set down for trial, and may define the issues that are to be tried.(2.) Where the plaintiff has obtained leave to enter final judgment subject to a suspension of execution pending the trial of a counter-claim, the previsions of this rule shall apply to the counterclaim as if it were an action.
10. —(1.) The costs of and incidental to all applications under this Order shall be dealt with by a Judge on the hearing of the application, and he shall order by and to whom, and when, they shall be paid, or may refer them to a Judge at the trial:Provided that in case no trial afterwards takes place, or no order as to those costs is made, the costs shall be costs in the cause.
(2.) If the plaintiff makes an application under this Order, where the case is not within the Order, or where the plaintiff, in the opinion of a Judge, knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, the application may be dismissed with costs to be forthwith paid by the plaintiff.
11. A tenant shall have the same right to relief after a judgment under this Order for the recovery of land on the ground of forfeiture for nonpayment of rent, as if the judgment had been given after trial.
ORDER 16.
Summary Judgment for Specific Performance.
1. Where the defendant has appeared to a writ of summons endorsed with a claim for specific performance of a contract in writing for the sale or purchase of property, or any estate or interest therein, the plaintiff may, on affidavit made by himself, or by any other person who can swear positively to the facts, verifying the cause of action and stating that there is, in his opinion, no defence to the action, apply to a Judge for an order for specific performance of the contract and for such consequential accounts, inquiries and directions as to payment of purchase money, interest, damages and costs or otherwise as the case requires. A Judge may thereupon, unless the defendant by affidavit or otherwise satisfies him that he has a good defence to the action on the merits, or discloses such facts as are deemed sufficient to entitle him to defend, make such order as is just.
2. An application by the plaintiff under the last preceding rule shall be made by summons returnable not less than two clear days after service, accompanied by a copy of the affidavit and any exhibits referred to therein.
Cf. E.O. 86 r. 4.
3. —(1.) The defendant may show cause against the application by affidavit, or a Judge may allow the defendant, or any other person, to be examined on oath.(2.) A Judge may, if he thinks fit, order the plaintiff or the defendant, or, in the case of a corporation, any officer thereof, to attend and be examined and cross-examined on oath, or to produce any papers, books, or documents, or copies of, or extracts therefrom.
4. Leave to defend may be given either unconditionally or subject to such terms as to giving security or time or mode of trial or otherwise as a Judge thinks fit.
5. A Judge may, with the consent of all parties, dispose of the action finally, and without appeal, in a summary manner.
6. Where leave, whether conditional or unconditional, is given, a Judge may give all such directions as to the further conduct of the action as might be given on a summons for directions under Order 33, and may order the action to be forthwith set down for trial, and may define the issues that are to be tried.
7. The provisions of Order 15, rule 10, shall apply to all applications under this Order.
ORDER 17.
Summary Judgment by Defendant.
1. Any defendant to an action may, within ten days after appearance, or at any later time by leave of the Court or a Judge, apply to a Judge for summary judgment, and if the Judge is satisfied that the action is frivolous, or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, the Judge—(
a ) may order that judgment be entered for the defendant with or without costs;(
b )may order that the plaintiff shall proceed to trial without pleadings; or(
c ) if all parties consent, may dispose of the action finally, and without appeal, in a summary manner.
2. —(1.) The plaintiff may show cause against such application by affidavit or byviva voce evidence.
(2.) A Judge may, if he thinks fit, order the plaintiff or the defendant, or, in the case of a corporation, any officer thereof, to attend and be examined and cross-examined on oath or to produce any papers, books, or documents, or copies of, or extracts therefrom.
3. If a Judge directs that the action shall proceed to trial, he may give all such directions as to the further conduct of the action as might be given on a summons for directions under Order 33, and may order the action to be forthwith set down for trial, and may define the issues that are to be tried.
ORDER 18.
Application for Account.
1. Where a writ of summons has been indorsed for an account under Order 4, rule 7, or where the indorsement on a writ of summons involves taking an account, if the defendant either fails to appear, or does not, after appearance, by affidavit or otherwise, satisfy the Court or a Judge that there is some preliminary question to be tried, an order for proper accounts, with all necessary inquiries and directions, shall forthwith be made.
2. An application for such an order as is mentioned in the last preceding rule shall be made by summons, and be supported by an affidavit, when necessary, filed on behalf of the plaintiff, stating concisely the grounds of his claim to an account. The application may be made at any time after the time for entering an appearance has expired.
ORDER 19.
Parties.
1.
1. —(1.) All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions alleged to exist, whether jointly, severally, or in the alternative, where, if such persons brought separate actions any common question of law or fact would arise:Provided that, if upon the application of any defendant it appears that such joinder may embarrass or delay the trial of the action, the Court or
a Judge may order separate trials, or may make such other order as is expedient, and judgment may be given for such one or more of the plaintiffs as are found to be entitled to relief, for such relief as he or they are entitled to, without any amendment.
(2.) The defendant, though unsuccessful, shall be entitled to costs occasioned by so joining any person who is not found entitled to relief, unless the Court or a Judge, in disposing of the costs, otherwise directs.
2. No other actions shall be brought against the defendant by any person so joined as plaintiff in respect of the same cause of action unless by leave of the Court or a Judge.
3. Where an action has been commenced in the name of the wrong person as plaintiff, or it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Judge may, if satisfied that it has been so commenced through abona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as seem just.
4. Where in an action any person has been improperly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counter-claim or set-off, he may obtain the benefit thereof by establishing his set-off or counter-claim as against the parties other than the co-plaintiff so joined, notwithstanding the misjoinder of such plaintiff or any proceeding consequent thereon.
5. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative, and judgment may be given against such one or more of the defendants as are found to be liable according to their respective liabilities, without any amendment.
6 . It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him, but the Court or a Judge may make such order as appears 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.
7. 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.
8. Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as is mentioned in this Order or as is prescribed by any special order, join two or more defendants, to the intent that the question as to which (if any) of the defendants is liable, and to what extent, may be determined as between all parties.
9. —(1.) Trustees, executors and administrators may sue and be sued on behalf of, or as representing, the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons, but the Court or a Judge may, at any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties.(2.) This rule shall apply to trustees, executors, and administrators suing or sued in proceedings to enforce a security by foreclosure or otherwise.
10. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorized by the Court or a Judge to defend, in such cause or matter on behalf or for the benefit of all persons so interested.
11. When in proceedings concerning a trust a compromise is proposed, and some of the persons interested in the compromise are not parties to the proceedings, but there are other persons in the same interest before the Court and assenting to the compromise, the Court or a Judge, if satisfied that the compromise will be for the benefit of the absent persons, and that to require service on such persons would cause unreasonable expense or delay, may approve the compromise and order that the same shall be binding on the absent persons, and they shall be bound accordingly, except where the order has been obtained by fraud or non-disclosure of material facts.
12. No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or a Judge may, at any stage of the proceedings, either upon or without the application of any party, and on such terms as appear to the Court or a Judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court is 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. A person shall not be added as a plaintiff suing without a next friend, or as next friend of a plaintiff under any disability, without his consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons, or notice, in the manner mentioned in this Order, or in such manner as is prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice.
13. Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court or a Judge at any time before trial by motion or summons, or at the trial of the action in a summary manner.
14. Where a defendant is added or substituted the plaintiff shall, unless otherwise ordered by the Court or a Judge, file an amended copy of, and sue out, a writ of summons, and serve such new defendant with such writ, or give notice thereof, in the same manner as original defendants are served.
2.
15. —(1.) An infant may sue as plaintiff by his next friend and may defend any action by his guardian appointed for that purpose.(2.) A married woman may be the next friend or guardian of an infant.
(3.) In this part of this Order “to sue” and “to defend” include to be a party to any cause or matter.
16. —(1.) A mentally defective person—(
a )may sue as plaintiff in any action and may defend any action—(i) by the Public Trustee, if he has the custody or administration of the estate of the mentally defective person under the
Mental Defectives Ordinance 1940-1964; or(ii) by the committee of the estate of the mentally defective person, if such a committee has been appointed under that Ordinance; and
(
b )may sue as plaintiff in any action by his next friend and may defend any action by his guardian appointed for that purpose in any case to which the last preceding paragraph does not apply.(2.) A married woman may be the next friend or guardian of a mentally defective person.
17 . An infant shall not enter an appearance except by his guardianad litem. No order for the appointment of such guardian shall be necessary, but the solicitor applying to enter such appearance shall make and file an affidavit in accordance with Form 11 in the First Schedule.
18. Every infant served with a petition or notice of motion or summons in a matter shall appear on the hearing thereof by a guardianad litem in all cases in which the appointment of a special guardian is not provided for. No order for the appointment of such guardianad litem shall be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last preceding rule.
19. Before the name of any person is used in any action as next friend of any infant or other party, or as relator, such person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed.
20. In all cases or matters to which an infant or mentally defective person (whether so found by inquisition or not) or 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 consent of the Court or a Judge 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 such party were under no disability and had given such consent:Provided that no such consent by any committee of a mentally defective person shall be valid as between him and the mentally defective person unless given with the sanction of the Court or a Judge.
3.
21. —(1.) Any person may be admitted to sue or defend as a poor person on proof that he is not worth One hundred and fifty dollars, his wearing apparel and the subject-matter of the cause or matter only excepted.
(2.) In this part of this Order “to sue or defend” includes to be a party to any cause or matter.
22. Except under special circumstances, no person shall be admitted to sue or defend as a poor person who has directly or indirectly paid or agreed to pay any sum of money, or who has given or agreed to give any security, to any legal practitioner, or to any other person, for the conduct of his business in the Court.
23. A person desirous of suing or defending as a poor person shall lay a case before a barrister or solicitor for his opinion whether or not he has reasonable grounds for proceeding or defending.
24. No person shall be permitted to sue or defend as a poor person unless the case laid before a barrister or solicitor for his opinion and his opinion thereon, with an affidavit of the party or his solicitor that the case contains a full and true statement of all the material facts to the best of his knowledge and belief, and also distinctly denying that the applicant has directly or indirectly paid or agreed to pay any sum of money, or has given or agreed to give any security to any legal practitioner, or to any other person, for the conduct of his business in the Court, or stating fully the special circumstances relied upon in excuse, is produced to the Court or a Judge.
25. A person admitted to sue or defend as a poor person shall not be liable to pay any Court fee.
26. Where a person is admitted to sue or defend as a poor person the Court or a Judge may, if necessary, assign a counsel or solicitor, or both, to assist him, and a counsel or solicitor so assigned shall not be at liberty to refuse or to discontinue his assistance unless he satisfies the Court or a Judge that he has some good reason for refusing, and no fee shall be payable by a poor person to his assigned counsel or solicitor.
27. While a person sues or defends as a poor person no person shall take, or agree to take, or seek to obtain from him any fee, profit, or reward for the conduct of his business in the Court, and any person who takes, or agrees to take, or seeks to obtain any such fee, profit, or reward shall be guilty of a contempt of Court.
28. When a person intends to apply to be admitted to sue or defend as a poor person, any person who, with knowledge of such intention, takes, or agrees to take, or seeks to obtain, any fee, profit or reward for the conduct of the business in Court shall be guilty of a contempt of Court.
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obtain consent of next friend to sue in his name, or of a guardian | 2.50 |
101. To inspect, or produce for inspection, documents pursuant to a notice to admit............ | 4.00 |
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102. To examine and sign admissions...................................................................................... | 2.50 |
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113. If matter in list but not heard........................................................................................... | 6.00 |
114. On a summons in Chambers if matters heard without counsel........................................ | 8.00 |
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THIRD SCHEDULE.
O. 68 r. 1.
SCALE OF COURT FEES.
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________________
PART 1.—PRELIMINARY.
Order 1.— Preliminary.
PART 2.—CIVIL JURISDICTION.
Order 2.—Commencement of Civil Proceedings.
Order 3.—Writ of Summons.
Order 4.—Indorsement of Claim.
Order 5.—Indorsement of Address.
Order 6.—Issue of Writs of Summons.
Order 7.—Concurrent Writs and Originating Summonses.
Order 8.—I.—Disclosure by Solicitors and Plaintiffs.
II.—Change of Solicitors.
Order 9.—Renewal of Writ.
Order 10.—Service of Writ of Summons.
Order 11.—Substituted Service.
Order 12.—Service Out of the Commonwealth.
Order 13.—Appearance.
Order 14.—Default of Appearance.
Order 15.—Leave to Sign Judgment or Defend where Writ Specially Indorsed.
Order 16.—Summary Judgment for Specific Performance.
Order 17.—Summary Judgment by Defendant.
Order 18.—Application for Account.
Order 19.—Parties.
Order 20.—Third Party Procedure.
Order 21.—Change of Parties by Death, &c.
Order 22.—Joinder of Causes of Action.
Order 23.—Pleading Generally.
Order 24.—Statement of Claim.
Order 25.—Defence and Counter-claim.
Order 26.—Payment into and out of Court and Tender.
Order 27.—Reply.
Order 28.—Matters Arising Pending the Action.
Order 29.—Proceedings in Lieu of Demurrer.
Order 30.—Discontinuance.
Order 31.—Default of Pleading.
Order 32.—Amendment.
Order 33.—Summons for Directions.
Order 34.—Discovery and Inspection.
Order 35.—Admissions.
Order 36.—Issues, Inquiries and Accounts.
Order 37.—I.—Special Case.
II.—Issues of Fact without Pleading.
Order 38.—Trial.
Order 39.—Evidence.
Order 40.—I.—Affidavits and Depositions.
II.—Affidavits and Evidence in Chambers.
III.—Trial on Affidavit.
Order 41.—Motion for Judgment.
Order 42.—Entry of Judgment.
Order 43.—Execution.
Order 44.—Writs of
Order 45.—Attachment.
Order 46.—Attachment of Debts.
Order 47.—Charging Orders and Stop Orders.
Order 48.—Writ of Possession.
Order 49.—Writ of Delivery.
Order 50.—Actions by and against Firms and Persons Carrying on Business in Names other than Their Own.
Order 51.—Consolidation.
Order 52.—I.—Interlocutory Orders as to Mandamus, Injunctions, or Interim Preservation of Property, &c.
II.—Receivers.
III.—Liquidators, Guardians, and Committees.
Order 53.—Sales by the Court.
Order 54.—Motions and other Applications.
Order 55.—Certiorari: Mandamus: Prohibition: Quo Warranto: Habeas Corpus.
Order 56.—Applications and Proceedings at Chambers.
Order 57.—Declaration on Originating Summons.
Order 58.—I.—Administration and Trusts.
II.—Assistance of Experts.
III.—Proceedings Relating to Infants, &c.
IV.—Documents to be Left at Chambers.
V.—Summonses to Proceed.
VI.—Attendances.
VII.—Claims of Creditors and other Claimants.
VIII.—Claims of Creditors.
IX.—Claims of Persons other than Creditors.
X.—Interest.
XI.—Certificates of the Registrar.
XII.—Further Consideration.
XIII.—Registering and Drawing up of Orders in Chambers.
Order 59.—Interpleader.
Order 60.—Officers.
Order 61.—Seals, Filing, Searches, &c.
Order 62.—Sittings and Vacations.
Order 63.—Time.
Order 64.—I.—Costs.
II.—Special Allowances and General Regulations.
Order 65.—Documents.
Order 66.—Service of Orders, &c.
Order 67.—Effect of Non-compliance.
Order 68.—Fees.
By Authority: A. J. Arthur, Commonwealth Government Printer, Canberra
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