Supreme Court Amendment Rules (No. 6) 1992 (WA)
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CROWN LAW
824 GOVERNMENT GAZETTE, WA [26 January 1993 Principal rules
2. In these rules the Rules of the Supreme Court 1971 are referred to as the
principal rules.
[* Reprinted in the Gazette of 18 March 1986 at pp. 779-1100 For amendments to 9 December 1992 see 1991 Index to Legislation of Western Australia, pp.504-5 and Gazettes of 7 and 28 February, 5 June, 21 August 1992 and 30 October 1992.]
Order 17 amended
3. Order 17 of the principal rules is amended in Rule 12 (2) by deleting
"4 days" and substituting the following —
" 14 days ". Order 44A inserted
4. After Order 44 of the principal rules the following Order is inserted —
ti
ORDER 44A
REGISTRATION AND ENFORCEMENT OF JUDGMENTS
UNDER THE FOREIGN JUDGMENTS ACT 1991
OF THE COMMONWEALTH
FOREIGN JUDGMENTS
Interpretation
1. Unless the contrary intention appears, expressions used in this Order have, in relation to proceedings taken under the Foreign Judgments Act 1991 of the Commonwealth, the same meaning in this Order as they have in that Act.
Application 2. This Order applies to the registration and enforcement of judgments to which Part 2 of the Act applies.
Application for registration
3. (1) An application under section 6 of the Act, to have a
judgment to which Part 2 of the Act applies registered in the Supreme Court may be made on motion ex parte to the Court.
Foreign Judgments Act 1991 of the Commonwealth and (2) The motion paper shall be entitled "In the Matter of the regulations thereunder made relating to (country) and in the
(describing the cause or matter) and dated the day matter of a judgment of the (describing court) obtained in of 19 ". and some, but not all of the provisions of the .judgment are such that if those provisions had been contained in separate (3) Where the judgment is in respect of different matters, judgments, those .judgments could properly have been registered,
the motion paper shall state the provisions in respect of which it
is sought to register the judgment.
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Evidence in support of application
4. (1) An application for registration shall be supported by an affidavit of the facts —
(a) exhibiting a certified copy of the judgment issued by public or authenticated by affidavit; translation of the judgment certified by a notary
the original court and authenticated by its seal and
where the judgment is not in the English language a (b) stating to the best of the information and belief of the deponent —
(i) judgment; that the applicant is entitled to enforce the
(ii) as the case may require, either that at the date of the application the judgment has not been complied with, or if the judgment has been complied with in part, the amount in respect of which it remains unsatisfied; (iii)
is capable of enforcement in the country of the that at the date of the application the judgment original court; and (iv)
that if the judgment were registered, the reOstration would not be, or be liable to be, set aside under section 7 of the Act;
and
(c) specifying the amount of the interest, if any, which
under the law of the country of the original court has
become due under the judgment up to the time of registration,and shall be accompanied by such other evidence with respect to court, and of the law of that country under which any interest the enforceability of the judgment in the country of the original
has become due under the judgment, as may be required having regard to the provisions of the regulations extending the Act to the country of the original court. Where a sum payable under the judgment is expressed in a currency other than the currency of the Commonwealth of Australia, the affidavit shall also state the amount which that sum represents in the currency of the Commonwealth of Australia calculated at the rate of exchange prevailing at the date of the
(2)
judgment. The affidavit shall also state the full name, title, trade or business of the judgment creditor and the judgment debtor respectively, so far as known to the deponent. Security for costs
5. The Court may, in respect to an application for registration, application and of any proceedings which may thereafter be order the judgment creditor to find security for the costs of the brought to set aside the registration. Order for registration 6. (1) An order for registration of a judgment shall be drawn up by, or on behalf of, the judgment creditor. business and the usual or last known place of abode or of (3) (2) The order need not be served on the judgment debtor.
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(3)
The order shall state the period after service of the notice
prescribed by Rule 8 within which an application may be made to
set aside the registration.
(4)
The Court may, on an application made at any time while it remains competent for any party to apply to have the
originally fixed or as subsequently extended) during which an application to have the judgment set aside may be made. registration set aside, grant an extension of the period (either as Register to be kept
7. There shall be kept in the Central Office of the Supreme Court a register of the judgments ordered to be registered under
the Act.
Notice of registration be served on the judgment debtor in the following manner —
8. (1) Notice in writing of the registration of a judgment shall
(a) case of a writ of summons, unless some other mode of if within the jurisdiction, by personal service as in the service is ordered by the Court; (b)
Process Act 1901 of the Commonwealth. Order 10 and the Service and Execution of if out of the jurisdiction, in accordance with
(2) The notice of registration shall state —
(a) full particulars of the judgment registered and the order for registration; (b)
solicitor or agent on whom, and at which, any the name and address of the judgment creditor or his summons issued by the judgment debtor may be
served;
(c)
grounds provided in the Act to have the registration the right of the judgment debtor to apply on the set aside;
(d) in accordance with the term of the order giving leave to register, the period of time from the date of service of the notice within which an application to set aside the registration, may be made; and (e)
be taken until after the expiration of that period. that no step for the enforcement of the ,judgment shall
Indorsement of service
9. extended period as may, in special circumstances, be allowed by (1) Within 3 days from the day of service or within such
order of the Court, the notice or a copy or duplicate of the notice shall be indorsed by the person serving it with the date of the month and the day of the week on which service was effected,
leave of the Court. not be at liberty to issue execution on the judgment without the and, if the notice is not so indorsed, the judgment creditor shall (2) Every affidavit of service of a notice referred to in
made. subrule (1) shall state the date on which the indorsement was
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Application to set aside registration
10. (1) An application to set aside the registration of a judgment shall be made by summons supported by affidavit.
before the return day. (2) A summons shall be served not less than 7 clear days (3)
On any such application the Court may direct that an shall be stated and tried and may give such directions in relation
issue between the judgment creditor and the judgment debtor
to the trial of such issue as may be necessary. Enforcement
11. (1) No step shall be taken to enforce a registered judgment until after the expiration of the period which, in
order giving leave to register as the period within which an accordance with the provisions of Rule 6 (3), is specified in the
application may be made to set aside the registration, or, if an order is made extending the period so specified, until after the expiration of the extended period.
If an application is made to set aside the registration of a judgment, enforcement of the judgment shall be stayed until the application has been disposed of. shall produce to the proper officer an affidavit of the service of (3) The party desirous of enforcing a registered judgment the notice of registration and of any order made by the Court in
relation to the judgment registered.Determination of certain questions 12. If, whether under the Act or under these rules, any country of the original court, or whether and if so what interest is question arises whether a judgment can be enforced in the question shall be determined in accordance with the provisions, if payable under the judgment under the law of that country, that any, in that behalf, as are contained in the regulations extending
the Act to that country.Certified copy of judgment obtained in this State
13. (1) An application under section 15 of the Act for a
be made ex parte to the Principal Registrar on an affidavit made certified copy of a judgment obtained in the Supreme Court shall by the judgment creditor or his solicitor. (2)
(2) An affidavit for the purposes of this rule shall —
give particulars of the proceedings in which the
(a) judgment was obtained; (b) judgment was based; contain a statement of the grounds on which the (c)
state whether the defendant did or did not object to objection; the jurisdiction, and, if so, the grounds of such
(d) show that the judgment is not subject to any stay of enforcement and that no notice of appeal against it has been entered, and whether the time for appealing
has expired; and(e) state the rate at which the judgment carries interest.
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duly made under this rule, there shall be issued a copy of the (3) Where an application for a certified copy of a judgment is judgment sealed with the seal of the Supreme Court and certified
by the Principal Registrar as follows —
CC
Western Australia and this copy is issued in of a judgment obtained in the Supreme Court of I certify that the above copy judgment is a true copy
Act 1991 of the Commonwealth. accordance with section 15 of the Foreign Judgments
(Signed)
Principal Registrar of the Supreme Court of Western Australia.
together with a certificate as to such one or more as may be asked for of the following matters, also under the seal of the Supreme Court and certified by the Principal Registrar —
(a) particulars of the proceedings in which the judgment was obtained having annexed to it a copy of the writ of summons or originating summons, by which the
proceedings were instituted;(b)
the manner in which the writ or summons was served or that the defendant appeared thereto;
(c) the objections made to the jurisdiction, if any; (d) the pleadings, if any, in the proceedings; (e)
based; the causes of action upon which the judgment was (f) the rate at which the judgment carried interest; (g)
such other particulars as it may be necessary to give to the foreign tribunal in which it is sought to obtain execution of the judgment.
Order 80A inserted
5. After Order 80 of the principal rules the following Order is inserted — a
ORDER 80A
APPLICATIONS UNDER THE ROYAL COMMISSION (CUSTODY OF RECORDS) ACT 1992
Interpretation
1. In this Order unless the contrary intention appears —
"the Act " means the Royal Commission (Custody of Records) Act 1992,
and words defined in section 4 of the Act and used in this Order
have the same respective meanings as in the Act.
Applications to Registrar
2.
(1) An application for leave under section 14 of the Act to Registrar or a Registrar.
have access to a record or records shall be made to the Principal
(2) The Principal Registrar or a Registrar may exercise the 14 of the Act.
powers of the Court when dealing with applications under section
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(3) The provisions of Rules 20 and 21 of Order 67 apply to all applications for leave.
(4)
An application for leave under section 14 of the Act shall be made to the Court by filing a notice of motion setting out clearly and concisely the grounds upon which the application is made and specifying precisely the record to which access is required, including the type of access required.
(5)
An application must be supported by an affidavit setting
forth the facts and circumstances upon which the application is
based.
ex parte and may be dealt with in Chambers without the (6) An application under paragraph (4) may be made
necessity of attendance by the applicant unless the Court
otherwise directs.
(7)
If the Court otherwise directs, the application shall be heard in Chambers either ex parte or interparties after service of the motion and the affidavit in support on any person or persons who the Court considers have an interest in the record and the preservation of its confidentiality.
Leave shall not be granted unless the Court is satisfied that all the requirements under section 14 (5) of the Act have been met. Form of Order
3. (1) The Court may grant leave on such conditions as it thinks fit.
the whole or a part of the record. (2) Orders made under this Order may be made in respect of (8)
Order 82 amended
6. Order 82 of the principal rules is amended -
(a) inRulel —
(i) by inserting after the Rule designation "1." the paragraph
designation" (1) "; and (ii) by deleting "Act," and substituting the following -
It
Act and paragraph (2),
(b) by inserting the following paragraph -
it
is of a perishable nature the property may be sold (2) Where property referred to in paragraph (1)
immediately, without notice of sale, if the Sheriff
considers this action to be appropriate.
and
(c) in Rule 3 by inserting after paragraph (2) the following paragraph - It offered for sale by the Sheriff by public auction was (3) Where property, whether real or personal,
not sold at the first auction the Sheriff may, with the written consent of the ju4gment creditor, offer the property for sale by public auction on a second
occasion. ".
09820-2
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The Fifth Schedule amended
7. The Fifth Schedule to the principal rules is amended in PART III item
21 by deleting the note and substituting the following note —
“
NOTE: For the purposes of this item —
(a)
with respect to land, or an interest in land, the service of the writ of fieri facias on the Registrar of Titles under section 133 of the Transfer of Land Act 1893;
(b) apparent possession of the judgment debtor; or the seizure of chattels in the possession or (c)
the seizure of books of account in the possession of the judgment debtor,
shall be or be deemed to be "seizure" .
Dated the 15th day of December 1992.
DAVID K. MALCOLM.
G. A. KENNEDY.
W. P. PIDGEON.
B. ROWLAND.
E.
M. FRANKLYN. PAUL SEAMAN.
R. D. NICHOLSON.
TERENCE A. WALSH.
D. I. IPP.
H. WALLWORK.
M. J. MURRAY.
R. ANDERSON.
N. J. OWEN.
K. WHITE.
GRAEME scow.
CW301
SUPREME COURT ACT 1935
SUPREME COURT AMENDMENT RULES (NO. 6) 1992
Made by the Judges of the Supreme Court.
Citation
1. These rules may be cited as the Supreme Court Amendment Rules (No. 6)
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