Rules of the Supreme Court of the Northern Territory of Australia

STATUTORY RULES

1966 No. 178

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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 Northern Territory Supreme Court Act 1961-1966, hereby make the following Rules of Court.

Dated this ninth day of December, 1966.

Senior Judge.

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RULES OF THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

PART 1.—PRELIMINARY.

ORDER 1.

Preliminary.

Citation.

1.      These Rules may be cited as the Rules of the Supreme Court of the Northern Territory of Australia.

Commencement.

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.

Repeal.

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force under the Supreme Court Ordinance 1911-1960 of the Territory immediately before the commencement of the Act are repealed.

Parts.

Part 1.—Preliminary.

Part 2.—Civil Jurisdiction.

Definitions.

5. (1.)—In these Rules, unless the contrary intention appears—

Ο. 1 r. 5

Ο. 1 r. 6

Interpretation.

(2.) In these Rules, unless the contrary intention appears—

Application of 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—

Ο. 2 r. 1; Ο. 3 rr. 1-4

(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.

PART 2.—CIVIL JURISDICTION.

ORDER 2.

Commencement of Civil Proceedings.

Mode of commencement.

Cf.E.O.;5r.1-3.

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.

Actions to be commenced by writ.

Cf .E.O.6r.2(1).

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.

Costs of prolixity.

A.C.T.O. 3 r. 2.

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.

Form of writ.

Cf. E.O. 6 r. 1.

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.

Writs for service out of Territory. Form and notice.

Cf. E.O. 6 r. 1.

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.

Ο. 3 rr. 5-6; Ο. 4 rr. 1-4

Date and teste.

Vic.O. 2 r. 6.

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.

Time for appearance to be limited by writ.

Cf. S.A.O. 2 r. 4.

6. The time to be limited in the writ of summons for the appearance of any defendant shall be—

ORDER 4.

Indorsement of Claim.

When to be made.

Cf. E.O. 6 r. 2(1.).

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.

Contents of indorsement.

A.C.T.O. 4 r. 2.

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.

Representative character.

Vic.O. 3 r. 3.

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.

Probate actions.

Cf. E.O. 76 r. 2 (2.).

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.

Ο. 4 rr. 5-7

Special indorsement.

A.C.T.O. 4 r. 5.

5.         In actions—

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.

Indorsement of notice as to stay of proceedings.

Cf. E.O. 6 r. 2.

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:—

Indorsement of claim for account.

A.C.T.O. 4 r. 7.

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.

Ο. 4 r. 8; Ο. 5 rr. 1-4; Ο. 6 rr. 1-4

In actions for libel.

E.O. 82 r. 2.

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.

Where plaintiff sues by solicitor.

Cf. E.O. 6 r. 5.

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.

Where plaintiff sues in person.

Cf. E.O. 6 r. 5.

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.

Where plaintiff cannot be found.

A.C.T.O. 5 r. 3.

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.

Proceedings other than actions.

E.O. 7 r. 3 (2.).

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.

Place of issue.

Vic.O. 5 r. 1.

Preparation of writ.

A.C.T.O. 6 r. 2.

2. Writs of summons shall be prepared by the plaintiff or his solicitor.

Sealing.

Cf. E.O. 6 r. 7 (3.).

3. Every writ of summons shall be sealed by the Master, and shall thereupon be deemed to be issued.

Copy to be left with officer.

Cf. E.O. 5 r. 7 (5.).

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.

Ο. 6 rr. 5-6; Ο. 7 rr. 1-4; Ο. 8 r. 1

Officer to file copy.

A.C.T.O. 6 r. 5.

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.

Writ in probate actions to be verified.

A.C.T.O. 6 r. 6.

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.

Issue of concurrent writs.

Cf. B.O. 6 r. 1, 6, 7 (4.), 8.

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.

Concurrent originating summons.

Cf. E.O. 7 r. 4, 5.

2. A concurrent originating summons may be issued in the same manner, mutatis mutandis, as a concurrent writ of summons.

Concurrent writs within and beyond the jurisdiction.

Cf. E.O. 6 r. 6 (2.).

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.

Concurrent originating summons within and beyond the jurisdiction.

Cf. E.O. 7 r. 4, 5.

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.

Solicitor to declare whether writ issued by his authority.

A.C.T.O. 8 r. 1.

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.

Ο. 8 rr. 2-5

(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.

Change of solicitor.

Cf. E.O. 62a r. 1 (1.).

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.

Cf. E.O. 62a r. 1 (3.).

(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.

Appointment of solicitor.

Cf. Ε.Ο. 62a r. 3.

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.

Notice of intention to act in person.

Cf. E.O. 62a r. 4.

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.

Removal of solicitor from the record.

Cf. Β.Ο. 62a r. 5.

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—

Ο. 8 rr. 6-8; Ο. 9 r. 1

(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

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

Cf. E.O. 62a r. 5.

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—

(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.

Meaning of address for service.

Cf. Vic.O. 7 r. 6.

7. In this Order “address for service” means the address for service required by Order 5, rule 1 or rule 2.

Solicitor not to act for adverse parties.

Vic.O. 7 r. 7.

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.

Original writ to be in force for twelve months; may be renewed.

Cf. Ε.Ο. 6 r. 8.

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.

Ο. 9 rr. 2-3; 0.10 rr. 1-4

(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.

Evidence of renewal.

A.C.T.O. 9 r. 2

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.

Lost writ; copy may be sealed.

A.C.T.O. 9 r. 5.

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.

Acceptance of service.

Cf. Ε.Ο. 10 r. 1 (2.).

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.

Personal service.

Cf.H.C.O.9 r.2.

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.

On husband and wife.

A.C.T.O. 10 r.3.

3. When husband and wife are both defendants to the action, they shall both be served, unless the Court or a Judge otherwise orders.

Infant defendant.

A.C.T.O. 10 r. 4.

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.

Ο. 10 rr. 5-8; Ο. 11 r. 1; 0.12 rr. 1-2

Mentally defective defendant.

Cf. A.C.T.O, 10 r. 5.

5. When a mentally defective person is a defendant to the action, service on—

On corporations and other bodies.

Cf. E.O. 67 r. 3.

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.

To recover vacant land.

Cf. Ε.Ο. 10 r. 4.

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.

Persons serving writ to indorse date of service.

Cf. Ε.Ο. 10 r. 1 (4.).

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.

Application for substituted service.

Cf. E.O. 67 r. 4 (2).

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.

Service within the Commonwealth.

A.C.T.O. 12 r. 1.

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.

Service out of the Commonwealth.

Cf. Vic.O. 11 r. 1. Cf. E.O. 11 r. 1.

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—

Ο. 12 rr. 3-4

Jurisdiction by consent.

Cf. E.O. 10 r. 3, E.O. 11 r. 2.

3.—(1.) Notwithstanding anything contained in the last preceding rule, the parties to any contract or agreement may agree—

(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.

Application for leave.

Vic. O. 11 r. 2.

Cf. E.O. 11 r. 4.

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—

Ο. 12 rr. 5-10

Leave not tο be granted except in proper cases.

Vic.O. 11 r. 2.

Cf. E.O.11 r.4.

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.

Time for appearance.

Vic.O. 11 r. 3.

Cf. E.O. 11. r 4.

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.

Notice of writ.

Vic.O. 11 r. 4.

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.

Service of notice of writ.

Vic.O. 11 r. 5.

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.

Service out of the Commonwealth of other documents.

Cf. Vic.O. 11 r. 6.

9. Service out of the Commonwealth may be allowed by the Court or a Judge of—

and the provisions of rules 4, 5, 6, 7 and 8 of this Order shall, mutatis mutandis, apply to such service.

Procedure to effect service in certain cases.

Cf. H.C.O. 10 r. 9.

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

O.12 rr. 11-12; Ο, 13 r. 1

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.

Letters of Request.

Cf. E.O. 68 r, 2, 4, 5.

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.

Consequential orders.

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.

In the Master’s office.

Cf. E.O. 12 r. 2.

1. A defendant shall enter his appearance to a writ of summons in the office of the Master.

O. 13 rr. 2-10

Mode of appearance.

Cf. E.O. 12 r. 8. E.O. 12 r. 1 (3.), 3 (2.), 4.

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.

Notice of appearance.

A.C.T.O. 13 r. 3.

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.

Address for service of solicitor.

Cf. E.O. 12 r. 3.

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.

Address for service of defendant in person.

Cf. E.O. 12 r. 3 (3.).

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.

Defective address.

Cf. E.O. 12 r.

12. E.O. 12 r. 3 (5.).

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.

Form of appearance.

A.C.T.O. 13 r. 7.

7. The memorandum of appearance shall be in accordance with Form 9 in the First Schedule.

Entry in Cause Book.

E.O. 12 r. 14.

Vic.O. 12 r. 8.

8. Upon receipt of a memorandum of appearance, the Master shall forthwith enter the appearance in the Cause Book.

Several defendants.

Cf. E.O. 12 r. 1 (4.).

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.

Conditional appearance.

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.

Ο. 13 rr. 11-18

(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.

Appearance not entered on undertaking.

Cf. E.O. 75 r. 9.

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.

Appearance allowed before judgment.

Cf. E.O. 12 r. 6.

E.O. 77 r. 3.

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.

Person not named may defend for land.

Cf. E.O. 15 r. 10.

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.

Landlord to appear as such.

A.C.T.O. 13 r. 13.

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.

Person appearing to be named as a defendant.

Cf. E.O.15 r. 27.

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.

Defence may be limited.

Cf. E.O. 12 r. 8.

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.

Notice of limitation.

Cf. E.O. 12 r. 8.

17. The notice mentioned in the last preceding rule shall be in accordance with Form 10 in the First Schedule.

Setting aside service before appearance.

Cf. E.O. 12 r. 7, 9.

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.

Ο. 14 rr. 1-6

ORDER 14.

Default of Appearance.

Default of appearance by infant or mentally defective person.

Application for guardian.

A.C.T.O. 14 r. 1.

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.

Affidavit of service. 

Cf. E.O. 13 r. 7.

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).

Final judgment when writs indorsed for liquidated demand.

Cf. E.O. 13 r. 1, E.O. 83 r. 4.

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.

Where claim for liquidated demand final judgment against defendants not appearing.

Cf. E.O. 13 r. 1.

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.

Damages, Detention of goods.

Interlocutory Judgment.

Cf. E.O. 13 r. 2.

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.

Several defendants. Judgment against those not appearing.

Cf. E.O. 13 r. 3, 5.

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,

Ο. 14 rr. 7-13

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.

Detention of goods damages, and liquidated demands. Final and interlocutory judgment.

Cf. E.O. 13 r. 5.

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.

Possession of land where no appearance.

Cf. E.O. 13 r. 4.

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.

Mesne profits or damages.

Cf. E.O. 13 r. 5.

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.

Judgment may be set aside or varied.

Cf. E.O. 13 r. 9.

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.

Default of appearance in other cases.

Cf. E.O. 13 r. 6.

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.

Proceedings mentioned on writ may be taken.

Vic.O. 13 r. 12.

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).

Default of appearance to originating summons.

Cf. E.O. 28 r. 2.

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

Ο. 15 rr. 1-3

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.

Plaintiff may apply to sigia final judgment.

Cf. E.O. 14 r. 4.

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.

Application by summons.

Cf. E.O. 14 r. 2.

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.

Defendant may show cause.

Cf. E.O. 14 r. 4.

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.

Ο. 15 rr. 4-10

(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.

Judgment may be for part of claim.

A.C.T.O. 15 r. 4.

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.

Or against one defendant.

Cf. E.O. 14 r. 8.

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.

Leave on terms.

Cf. E.O. 14 r. 4.

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.

Summary disposal.

Cf. E.O. 14 r. 6.

7. A Judge may, with the consent of all parties, dispose of the action finally, and without appeal, in a summary manner.

Assessment of damages.

A.C.T.O. 15 r. 8.

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.

Directions as to trial.

Cf. E.O. 14 r. 3, 6.

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.

Costs.

Cf. E.O. 14 r. 7.

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.

Ο. 15 r. 11; Ο. 16 rr. 1-7

(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.

Relief from forfeiture.

Cf.E.O.14 r. 10.

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.

Plaintiff may apply to sign judgment.

Cf. E.O. 86 r. 1, 2, 3.

E.O. 77 r. 7.

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.

Application by summons.

Cf. E.O. 86 r. 2.

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.

Defendant may show cause.

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.

Leave on terms.

Cf. E.O. 86 r. 4, 5.

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.

Summary disposal.

5. A Judge may, with the consent of all parties, dispose of the action finally, and without appeal, in a summary manner.

Directions as to trial.

Cf. E.O. 86 r. 6.

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.

Costs.

7. The provisions of Order 15, rule 10, shall apply to all applications under this Order.

Ο. 17 rr. 1-3; Ο. 18 rr. 1-2; Ο. 19 r. 1

ORDER 17.

Summary Judgment by Defendant.

Defendant may apply for summary judgment.

Vic.O. 14a. r. 1.

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—

Plaintiff may show cause.

Vic.O. 14a. r. 2.

2.—(1.) The plaintiff may show cause against such application by affidavit or by viva voce evidence.

Attendance for examination.

 (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.

Directions.

Vic.O. 14a. r. 3.

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.

Order for account.

Cf.E.O.33r.1A.

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.

Application for it.

Cf.E.O. 33 r. 1a.

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. Generally.

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

Cf. E.O. 15 r. 4, 5.

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

Ο. 19 rr. 2-8

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.

No other action to be brought for same claim.

Vic.O. 16 r. 1a.

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.

Plaintiffs may be substituted or added.

Cf. E.O. 15 r. 6

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 a bona 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.

Counter-claim or set-off in case of misjoinder.

A.C.T.O. 19 r. 4.

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.

Defendants may be sued jointly, severally, or in the alternative.

Cf. E.O. 15 r. 4.

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.

Defendant having only partial interest.

A.C.T.O. 19 r. 6.

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.

Plaintiff may join parties jointly and severally liable.

A.C.T.O. 19 r. 7.

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.

Plaintiff in doubt may join defendants for alternative redress.

A.C.T.O. 19 r. 8.

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.

Ο. 19 rr. 9-14

Trustees, executors, and representative parties.

Cf. E.O. 15 r. 6, 14.

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.

Where parties are numerous.

Cf.E.O.15 r. 12.

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.

Power to approve compromise in absence of some of the persons interested.

Cf. E.O.15 r. 13.

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.

Amendment on misjoinder of parties.

Cf. E.O. 15 r. 6, 8.

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.

Application as to parties.

A.C.T.O. 19 r. 13.

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.

Amended writ.

Cf. E.O. 15 r. 8.

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.

Ο. 19 rr. 15-21

2. Persons under Disability.

Infants.

Cf. Vic.O. 16 r. 16.

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.

Mentally defective persons.

16.—(1.) A mentally defective person—

(2.) A married woman may be the next friend or guardian of a mentally defective person.

Appearance of infant.

A.C.T.O. 19 r. 18.

17. An infant shall not enter an appearance except by his guardian ad 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.

Guardian ad litem in petitions, &c.

A.C.T.O. 19 r. 19.

18. Every infant served with a petition or notice of motion or summons in a matter shall appear on the hearing thereof by a guardian ad litem in all cases in which the appointment of a special guardian is not provided for. No order for the appointment of such guardian ad litem shall be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last preceding rule.

Written authority of next friend or relator.

Cf. E.O. 15 r. 11.

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.

Consent on behalf of infants, &c.

A.C.T.O. 19 r.21.

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. Proceedings by or against Poor Persons.

Poor persons.

Cf. Vic.O. 16 r. 22.

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.

Ο. 19 rr. 22-29

(2.) In this part of this Order “to sue or defend” includes to be a party to any cause or matter.

Disqualification.

Vic. O. 16 r. 22a.

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.

Case before counsel.

Vic.O. 16 r. 23.

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.

Affidavit verifying case.

Vic.O. 16 r. 24.

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.

Court fees.

Vic. O. 16 r. 25.

25. A person admitted to sue or defend as a poor person shall not be liable to pay any Court fee.

Assignment of counsel.

Vic.O. 16 r. 26.

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.

No fees from poor persons.

Vic.O. 16 r. 27.

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.

No fees from intending poor persons.

Vic.O. 16 r. 27a.

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.

Dispaupering.

Vic.O. 16 r. 28.

29. If any person admitted to sue or defend as a poor person gives or agrees to give any such fee, profit, or reward, an order shall forthwith be made revoking the order admitting him to sue or defend as a poor person, and he shall not be afterwards admitted again in the same cause to sue or defend as a poor person.

Ο. 19 rr. 30-36

Notices.

Vic. O. 16 r. 29.

30. No notice of motion shall be served, application made or summons issued, and no petition shall be presented on behalf of any person admitted to sue or defend as a poor person, except for the discharge of his solicitor, unless it is signed by his solicitor.

Duty of solicitor.

Vic. O. 16 r. 30.

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

Failure to proceed.

Vic.O. 16 r. 31a.

32. When a person admitted to sue or defend as a poor person omits to proceed to trial pursuant to notice, he may be called upon by notice of motion or summons to show cause to the Court or a Judge why he should not pay costs, though an order has not been made revoking the order admitting that person to sue or defend as a poor person, and why all further proceedings should not be stayed until such costs are paid. On the hearing of such notice or summons the Court or a Judge may make such order as is just.

Discontinuance of proceedings.

A.C.T.O. 19 r. 34.

33.—(1.) A person admitted to sue or defend as a poor person, or any solicitor conducting the proceedings for him, shall not discontinue, settle or compromise such proceedings without leave of the Court or a Judge.

(2.) A person admitted to sue or defend as a poor person shall not discharge any solicitor or counsel acting for him without the leave of the Court or a Judge.

Taxation of costs.

A.C.T.O. 19 r. 35.

34. Costs ordered to be paid to or by a person admitted to sue or defend as a poor person shall be taxed. In taxing such costs the taxing officer may allow any out-of-pocket expenses (but not office expenses) properly incurred in the course of the proceedings. Where it appears to the Court or a Judge that the special circumstances of the case require it, the Court or the Judge may order that such costs shall include profit costs and charges, and, if the Court or the Judge thinks fit, fees to counsel.

Payment of costs to poor person’s solicitor in certain cases.

A.C.T.O. 19 r. 36.

35. The Court or a Judge may order to be paid to the conducting solicitor out of any money recovered by a person admitted to sue or defend as a poor person, or may charge in favour of the conducting solicitor upon any real or personal property recovered by a person admitted to sue or defend as a poor person, such sum in respect of costs as would have been allowed to the solicitor on taxation between himself and his client if he had been retained by his client in the ordinary manner (less such amount as is recovered from any other party), or such sum in respect of costs as to the Court or a Judge seems fit:

Provided that the total amount so to be paid out, or so to be charged upon the property, for profit costs, shall not in either case exceed one-fourth of the amount or value recovered and remaining after deducting therefrom all proper disbursements made by the solicitor.

4. Administration and Execution of Trusts.

Heir-at-law, next of kin, class.

Cf.E.O.15 r. 13.

36.—(1.) In any case in which the right of an heir-at-law, or the next of kin, or a class depends upon the construction which the Court or a Judge puts upon an instrument, and it is not known or is difficult to ascertain who

Ο. 19 rr. 37-43

is or are such heir-at-law, or next of kin, or class, and the Court or a Judge considers, that, in order to save expense, or for some other reason, it will be convenient to have the questions of construction determined before such heir-at-law, next of kin, or class is or are ascertained by means of inquiry or otherwise, the Court or the Judge may appoint some one of more person or persons to represent such heir-at-law, next of kin, or class, and the judgment of the Court or a Judge in the presence of such persons shall be binding upon the heir-at-law, next of kin, or class, so represented.

Power to appoint persons tο represent absent parties.

(2.) In any other case in which an heir-at-law, or any next of kin, or a class is interested in any proceedings, the Court or a Judge may, if, having regard to the nature and extent of the interest of such persons, or any of them, it appears expedient, on account of the difficulty of ascertaining such persons, or in order to save expense, appoint one or more persons to represent such heir, or to represent all or any of such next of kin or class, and the judgment or order of the Court or a Judge in the presence of the persons so appointed shall be binding upon the persons so represented.

Residuary legatees or next of kin.

Cf. E.O. 85 r. 3.

37. Any residuary legatee, devisee or next of kin entitled to a judgment or order for the administration of the estate of a deceased person may have the same without serving the remaining residuary legatees, devisees or next of kin.

Legatees where legacy charged on real estate.

Cf. E.O. 85 r. 3.

38. Any legatee interested in a legacy charged upon real estate, or any person interested in the proceeds of real estate directed to be sold, who is entitled to a judgment or order for the administration of the estate of a deceased person, may have the same without serving any other legatee or person interested in the proceeds of the estate.

Residuary devisee.

Cf. E.O. 85 r. 3.

39. Any residuary devisee or heir entitled to the like judgment or order may have the same without serving any co-residuary devisee or co-heir.

Cestuis que trust.

Cf. E.O. 85 r. 3.

40. Any one of several cestuis que trust under any deed or instrument entitled to a judgment or order for the execution of the trusts of the deed or instrument may have the same without serving any other cestui que trust.

Waste.

A.C.T.O. 19 r. 42.

41. In all cases of actions for the prevention of waste, or otherwise for the protection of property, one person may sue on behalf of himself and all persons having the same interest.

Executors, &c.

Cf. E.O. 85 r. 3.

42. Any executor, administrator or trustee entitled thereto, may have a judgment or order against any one legatee, next of kin or cestui que trust for the administration of the estate, or the execution of the trusts.

Conduct of action.

Cf. E.O. 15 r. 6, 18.

43. The Court or a Judge may require any person to be made a party to any action or proceeding, and may give the conduct of the action or proceedings to such person as it or he thinks fit, and may make such order in any particular case as it or he deems just for placing the defendant on the record on the same footing with regard to costs as other parties having a common interest with him in the matters in question.

Ο. 19 rr. 44-50

Notice of judgment to be given.

Cf. E. O. 15 r. 16.

44.—(1.) Whenever in any action for the administration of the estate of a deceased person, or the execution of the trusts of any deed or instrument, or for the partition or sale of any hereditaments, a judgment or order has been pronounced or made—

(a) under Order 18;

(b) under Order 36; or

(c) affecting the rights or interests of persons not parties to the action,

the Court or a Judge may direct that any persons interested in the estate, under the trust, or in the hereditaments, shall be served with notice of the judgment or order, and after such notice they shall be bound by the proceedings in the same manner as if they had been originally made parties, and shall be at liberty to attend the proceedings under the judgment or order.

(2.) Any party so served may, within one month after such service, apply to the Court or a Judge to discharge, vary, or add to the judgment or order.

Order to attend unnecessary.

Cf. E.O. 15 r. 16. Appearance.

45. It shall not be necessary for any person served with notice of any judgment or order to obtain an order for liberty to attend the proceedings under such judgment or order, but such person may attend the proceedings upon entering an appearance in the office of the Master in the same manner and subject to the same provisions as a defendant entering an appearance.

Entry of memorandum of service.

Cf. E.O. 15 r. 16.

46. A memorandum of the service upon any person of notice of the judgment or order in any action under rule 44 of this Order shall be entered in the office of the Master upon due proof by affidavit of such service.

Notice of judgment.

Cf. E. O. 15 r. 16.

47. Notice of a judgment or order served pursuant to rule 44 of this Order shall be intituled in the action, and there shall be indorsed thereon a memorandum in accordance with Form 12 in the First Schedule.

Service of notice on infant, &c.

A.C.T.O. 19 r. 49.

48. Notice of a judgment or order on an infant or mentally defective person not so found by inquisition shall be served in the same manner as a writ of summons in an action.

Heir-at-law not necessary party.

A.C.T.O. 19 r. 50.

49. In any cause or matter to execute the trusts of a will it shall not be necessary to make the heir-at-law a party, but the plaintiff may make the heir-at-law a party where he desires to have the will established against him.

Procedure where no personal representative.

Cf. E. O. 15 r. 15.

50. If in any cause, matter, or other proceeding it appears to the Court or a Judge that any deceased person who was interested in the matter in question has no legal personal representative, the Court or the Judge may proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent his estate for all the purposes of the cause, matter, or other proceeding, on such notice to such persons (if any) as the Court or the Judge thinks fit, either specially or generally by the public advertisement, and the order so made, and any order consequent thereon, shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the cause, matter, or proceeding.

Ο. 19 r. 51; Ο. 20 rr. 1-3

Parties to administration proceedings.

Cf. E.O. 85 r. 3 (3.).

51. In any cause or matter for the administration of the estate of a deceased person, no party other than the executor or administrator may, unless by leave of the Court or a Judge, appear either in Court or in Chambers on the claim of any person not a party to the cause against the estate of the deceased in respect of any debt or liability. The Court or a Judge may direct or give liberty to any other party to the cause or matter to appear, either in addition to or in the place of the executor or administrator, upon such terms as to costs or otherwise as it or he thinks fit.

ORDER 20.

Third Party Procedure.

Third party notice.

Cf. E.O. 16 r. 1, 2.

1.—(1.) Where in any action a defendant claims as against any person not already a party to the action (in this Order called the third party)—

the Court or a Judge may give leave to the defendant to issue and serve a third-party notice.

(2.) The Court or a Judge may give leave to issue and serve a third-party notice on an ex parte application supported by affidavit, or, where the Court or a Judge directs a summons to the plaintiff to be issued, upon the hearing of the summons.

Form and issue of notice.

Cf. E.O. 16 r. 1.

2.—(1.) A third-party notice shall state the nature and grounds of the claim or the nature of the question or issue sought to be determined and the nature and extent of any relief or remedy claimed. It shall be in accordance with Form 13 or Form 14 in the First Schedule and shall be sealed and served on the third party in the same manner as a writ of summons is sealed and served.

(2). The notice shall, unless otherwise ordered by the Court or a Judge, be served within the time limited for delivering the defence or, where the notice is served by a defendant to a counter-claim, the reply, and with it there shall be served a copy of the writ of summons or originating summons and of any pleadings delivered in the action.

Effect of notice.

Cf. E.O. 16 r. 2 (3.).

3. The third party shall, as from the time of the service upon him of the notice, be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

Ο. 20 rr. 4-7

Appearance.

Cf. E.O, 16 r. 3.

4. The third party may enter an appearance in the action within eight days from service or within such further time as is directed by the Court or a Judge and specified in the notice:

Provided that a third party failing to appear within such time may apply to the Court or a Judge for leave to appear, and such leave may be given upon such terms, if any, as the Court or a Judge thinks fit.

Default by third party.

Cf. E.O. 16 r. 5.

E.O. 77 r. 9.

5. If a third party duly served with a third-party notice does not enter an appearance, or makes default in delivering any pleading which he has been ordered to deliver, he shall be deemed to admit the validity of, and shall be bound by, any judgment given in the action, whether by consent or otherwise, and by any decision therein on any question specified in the notice, and when contribution or indemnity or other relief or remedy is claimed against him in the notice, he shall be deemed to admit his liability in respect of such contribution or indemnity or other relief or remedy.

Procedure on default before trial.

Cf. E.O. 16 r. J.

E.O. 77 r. 9.

6. Where a third party makes default in entering an appearance or delivering any pleading which he has been ordered to deliver and the defendant giving the notice suffers judgment by default, such defendant may at any time after satisfaction of the judgment against himself, or before such satisfaction by leave of the Court or a Judge, enter judgment against the third party to the extent of any contribution or indemnity claimed in the third-party notice, or, by leave of the Court or a Judge, may enter such judgment in respect of any other relief or remedy claimed as the Court or the Judge directs:

Provided that the Court or a Judge may set aside or vary such judgment against the third party upon such terms as are just.

Third party directions.

Cf. E.O. 16 r. 4, 6.

7.—(1.) If the third party enters an appearance the defendant giving notice may, after serving notice of the intended application upon the plaintiff, the third party and any other defendant, apply to the Court or a Judge for directions and the Court or a Judge may—.

Ο. 20 rr. 8-12

Leave to defend.

Cf. E.O. 16 r.4.

8. The Court or a Judge, upon the hearing of the application for directions, may, if it appears desirable to do so, give the third party liberty to defend the action, either alone or jointly with the original defendant, upon such terms as are just, or to appear at the trial and take such part therein as is just and generally may order such proceedings to be taken, pleadings or documents to be delivered, or amendments to be made, and give such directions as to the Court or the Judge appear proper for having the question and the rights and liabilities of the parties most conveniently determined and enforced and as to the mode and extent in or to which the third party shall be bound or made liable by the decision or judgment in the action.

At trial.

Cf. E.O. 16 r. 7.

9.—(1.) Where the action is tried, a Judge may, at or after the trial, enter such judgment as the nature of the case requires for or against the defendant giving the notice against or for the third party, and may grant to the defendant or to the third party any relief or remedy which might properly have been granted if the third party had been made a defendant to an action duly instituted against him by the defendant:

Provided that execution shall not be issued without leave of the Court or a Judge until after satisfaction by the defendant of the judgment against him.

(2.) Where the action is decided otherwise than by trial, the Court or a Judge may, on application by motion or summons, make such order as the nature of the case requires, and, where the plaintiff has recovered judgment against the defendant, may order such judgment as is just to be entered for or against the defendant giving notice against or for the third party.

Costs.

A.C.T.O. 20 r. 10.

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

Fourth and subsequent parties.

Cf. E.O. 16 r. 9.

11.—(1.) Where a third party makes as against any person not already a party to the action such a claim as is specified in rule 1 of this Order, the provisions of this Order regulating the rights and procedure as between the defendant and the third party shall apply mutatis mutandis as between the third party and such other person, and the Court or a Judge may give leave to such third party to issue a third-party notice, and the preceding rules of this Order shall apply mutatis mutandis, and the expressions “ third-party notice ” and “ third-party ” shall apply to and include every notice so issued and every person served with such notice respectively.

(2.) Where a person served with a notice under this rule by a third party in turn mades such a claim as is specified in rule 1 of this Order against another person not already a party to the action, this Order, as applied by this rule, shall have effect as regards such further person and any other further person or persons so served and so on successively.

Co-defendants.

Cf. E.O. 16 r. 8.

12.—(1.) Where a defendant claims against another defendant—

3467/66.—2

Ο. 20 r. 13; Ο. 21 rr. 1-4

the defendant making the claim may, without any leave, serve on such other defendant a notice making such claim or specifying such question or issue.

(2.) A copy of such notice shall be filed forthwith after being served.

(3.) No appearance to such notice shall be necessary, and the same procedure shall be adopted for the determination of such claim, question or issue between the defendants as would be appropriate under this Order if he were a third party.

(4.) Nothing in this rule shall prejudice the rights of the plaintiff against any defendant to the action.

Counterclaim.

Cf. E. O. 16 r. 11.

13. In this Order the words “plaintiff” and “defendant” respectively include a plaintiff and a defendant to a counterclaim.

ORDER 21.

Change of Parties by Death, etc.

No abatement by marriage, &c.

Cf. E.O. 15 r. 7

E.. 36 r. 39A.

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

(2.) Whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment, but judgment may in such case be entered, notwithstanding the death.

Parties may be added.

Cf. E.O. 15 r. 7.

2. In case of the marriage, death, or bankruptcy, or devolution of estate by operation of law, of any party to a cause or matter, the Court or a Judge may, if it is deemed necessary for the complete settlement of all the questions involved, order that the husband, personal representative, trustee, or other successor in interest (if any) of such party be made a party or be served with notice in such manner and form as is prescribed by rule 5 of this Order, and on such terms as the Court or the Judge thinks just, and shall make such order for the disposal of the cause or matter as is just.

Transfer of estate pendente lite.

Cf. E.O. 15 r. 7.

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

Party added by order on change of interest.

Cf. E.O. 15 r. 7.

4. Where by reason of marriage, death, bankruptcy, or any other event occurring after the commencement of a cause or matter, causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a

Ο. 21 rr. 5-10

party in another capacity, an order that the proceedings shall be carried on between the continuing parties and such new party or parties may be obtained ex parte on application to the Court or a Judge, upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence.

Service of order.

Cf. E.O. 15 r. 7, 8.

5. An order obtained as mentioned in the last preceding rule shall, unless the Court or a Judge otherwise directs, be served upon the continuing party or parties, or their solicitors, and also upon each such new party, unless the person making the application is himself the only new party, and the order shall from the time of such service, subject nevertheless to the next two succeeding rules, be binding on the persons served therewith, and every person served therewith who is not already a party to the cause or matter shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons.

Discharge or variation of order.

Cf. E.O. 15 r. 7.

6. Where any person is not under a disability, or is not under any disability other than coverture, or being under any disability other than coverture, but having a guardian ad litem in the cause or matter, is served with such order as is mentioned in rule 4 of this Order, such person may apply to the Court or a Judge to discharge or vary such order at any time within twelve days from the service thereof.

Person under disability.

A.C.T.O. 21 r. 7.

7. Where any person being under any disability other than coverture, and not having a guardian ad litem in the cause or matter, is served with any order as mentioned in rule 4 of this Order, such person may, at any time within twelve days from the appointment of a guardian ad litem for such party, apply to the Court or a Judge to discharge or vary such order, and, until such period of twelve days has expired, such order shall have no force or effect as against such last-mentioned person.

Death of party and failure to proceed.

Cf. E.O. 15 r. 9.

8. When the plaintiff or defendant in a cause or matter dies, and the cause of action survives, but the person entitled to proceed fails to proceed, the defendant (or the person against whom the cause or matter may be continued) may apply by summons to compel the plaintiff (or the person entitled to proceed) to proceed within such time as is ordered, and in default of such proceeding, judgment may be entered for the defendant, or as the case may be, for the person against whom the cause or matter might have been continued, and in such case, if the plaintiff has died, execution may issue, as in the case provided for by Order 43, rule 21.

Abatement to be certified and entered.

Cf. E.O. 36 r. 9a.

9. When any cause or matter becomes abated, or in the case of any such change of interest as is provided for by this Order, the solicitor for the plaintiff, or person having the conduct of the cause or matter, as the case may be, shall certify the fact to the Master, who shall cause an entry thereof to be made in the Cause Book opposite to the name of such cause or matter.

Abated cause to be struck out.

Cf. E.O. 36 r. 9a.

10. Where any cause or matter has been standing for one year in the Cause Book marked as abated, or standing over generally, such cause or matter shall, at the expiration of the year, be struck out of the Cause Book.

Ο. 22 rr. 1-8

ORDER 22.

Joinder of Causes of Action.

Joinder of several causes.

Cf. E.O. 15 r. 1, 5.

1. Subject to the succeeding rules of this Order, the plaintiff may unite in the same action several causes of action, but if it appears to the Court or a Judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or the Judge may order separate trials of any of such causes of action to be had, or may make such other order as is necessary or expedient for the separate disposal thereof.

Not with action for recovery of land.

Cf. E. Q. 55 r. 8B.

2. No cause of action shall, unless by leave of the Court or a Judge, be joined with an action for the recovery of land, except claims in respect of mesne profits or arrears of rent or double value in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same, or any part thereof, are held, or for any wrong or injury to the premises claimed:

Joinder of claim of possession in action for foreclosure or redemption.

Provided that nothing in this Order shall prevent any plaintiff in any action for foreclosure or redemption from asking for or obtaining an order against the defendant for delivery of the possession of the mortgaged property to the plaintiff, on or after the order absolute for foreclosure or redemption, as the case may be, and such an action for foreclosure or redemption, and for such delivery of possession shall not be deemed an action for the recovery of land within the meaning of these Rules:

Provided also that in case any mortgage security is foreclosed by reason of the default to redeem by any plaintiff in a redemption action, the defendant in whose favour such foreclosure has taken place may, by motion or summons, apply to the Court or a Judge for an order for delivery to Mm of possession of the mortgaged property, and such order may be made thereupon as the justice of the case requires.

Claims by trustee in insolvency.

Cf. E.O. 15 r. 1.

3. Claims by a trustee in bankruptcy as such shall not, unless by leave of the Court or a Judge, be joined with any claim by him in any other capacity.

Husband and wife.

A.C.T.O. 22 r. 4.

4. Claims by or against husband and wife may be joined with claims by or against either of them separately.

Executors.

Cf. E.O. 15 r. 1.

5. Claims by or against an executor or administrator as such may be joined with claims by or against him personally, provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator.

Joint and separate claims.

A.C.T.O. 22 r. 6.

6. Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant.

Subject to rules 1, 8, and 9.

A.C.T.O. 22 r. 7.

7. The last three preceding rules shall be subject to rules 1, 8, and 9 of this Order.

Application of defendant to confine action.

Cf. E.O. 15 r. 5.

8. Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of together may at any time apply to the Court or a Judge for an order confining the action to such of the causes of action as may be conveniently disposed of together.

Ο. 22 r. 9; Ο. 23 rr. 1-6

Judge may exclude causes inconvenient to be joined.

Cf. E.O. 15 r. 5

9. If, on the hearing of such an application as is mentioned in the last preceding rule, it appears to the Court or a Judge that the causes of action are such as cannot be conveniently disposed of together, the Court or the Judge may order any of such causes of action to be excluded and consequential amendments to be made, and may make such order as to costs as is just.

ORDER 23.

Pleading Generally.

Pleading rules.

Vic.O. 19 r. 1.

Pleadings and particulars not to be prolix.

Vic.O. 19 r. 2.

2. Pleadings and particulars shall be as brief as the nature of the case admits, and the taxing officer in adjusting the costs of the action shall, at the instance of any party, or may without any request, inquire into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same.

Set-off or counter-claim.

Cf. E.O. 15 r. 2.

E.O. 18 r. 17.

3.—(1.) A defendant in an action may, subject to Order 25, rule 15, set off, or set-up by way of counter-claim, against the claims of the plaintiff, any right or claim, whether such set-off or counter-claim sounds in damages or not, and such set-off or counter-claim shall have the same effect as a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim.

(2.) The Court or a Judge may, on the application of the plaintiff, before trial, if in the opinion of the Court or the Judge such set-off or counter claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof.

Statements in pleadings.

Cf. E.O. 18 r. 6, 7.

4. Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be expressed in figures and not in words. Signature of counsel shall not be necessary, but where the pleadings have been settled by counsel they shall be signed by him, and, if not so settled, they shall be signed by the solicitor, or by the party if he sues or defends in person.

Forms of pleading.

A.C.T.O. 23 r. 5.

5.—(1.) The general form of a statement of claim shall be in accordance with Form 15 in the First Schedule.

(2.) The general form of a statement of defence shall be in accordance with Form 16 in the First Schedule.

(3.) The general form of a reply shall be in accordance with Form 17 in the First Schedule.

Particulars in pleading.

Cf. E. O. 18r. 12.

E.O. 82 r. 3.

6. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all

Ο. 23 rr. 7-14

other cases in which particulars are necessary beyond such as are exemplified in the Forms referred to in the last preceding rule, particulars (with dates and items if necessary) shall be stated in the pleading:

Provided that, if the particulars are of debt, expenses, or damages, and exceed three folios, the fact must be so stated, with a reference to full particulars already delivered or to be delivered with the pleading.

Further statement or particulars.

Cf. Ε.O.18r. 12.

7. A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars, may in all cases be ordered, upon such terms, as to costs or otherwise, as are just.

Letter for particulars.

Cf.E.O.18 r. 12.

8. Before applying for particulars by summons or notice a party may apply for them by letter. The costs of the letter and of any particulars delivered pursuant thereto shall be allowable on taxation. In dealing with the costs of any application for particulars by summons or notice, the provisions of this rule shall be taken into consideration by the Court or the Judge.

Time for pleading after particulars.

A.C.T.O. 23 r. 9.

9. The party at whose instance particulars have been delivered under the order of a Judge shall, unless the order otherwise provides, have the same length of time for pleading after the delivery of the particulars that he had at the return of the summons. Save as in this rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time.

Pleading to be in writing.

Vic.O. 19 r. 9.

10. A pleading shall be printed, typewritten or written.

Mode of delivery.

A.C.T.O. 23 r. 11.

11. Every pleading or other document required to be delivered to a party, or between parties, shall be delivered to the solicitor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor, but if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed.

Delivery and marking of pleadings.

Cf. E.O. 18 r. 6.

12. Every pleading shall be delivered between parties, and shall be marked on the face with the date of the day on which it is delivered, the reference to the number of the action, the title of the action, and the description of the pleading, and shall be indorsed with the name and place of business of the solicitor and agent (if any) delivering the same, or the name and address of the party delivering the same if he does not act by a solicitor.

Allegations not denied, admitted except against infants, &c.

Cf.E.O. 18 r. 13.

13. Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or mentally defective person not so found by inquisition.

Conditions precedent.

Cf. E.O. 18 r. 7.

14. Any condition precedent the performance or occurrence of which is intended to be contested shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be, and subject thereto an

Ο. 23 rr·. 15-20

averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.

Special matters to be pleaded.

Cf. E.O. 18 r. 8.

15. When there are pleadings, the defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counter-claim not be be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply (as the case may be) as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as for instance, fraud, Statute of Limitations, Statute of Frauds, release, payment, performance, facts showing illegality, any statutory provision requiring contracts to be in, or to be evidenced by, writing, either by any law or at common law:

No departure.

Cf.E.O.18 r. 10.

16. No pleading (not being a petition or summons) shall, except by way of amendment, raise any new ground of claim, or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

Denial of allegations to be specific.

Cf.E.O.18 r. 13. 14, 18.

17. It shall not be sufficient for a defendant in his statement of defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

Joinder of issus.

Cf.E.O.18 r. 14.

18. Subject to the last preceding rule, the plaintiff by his reply may join issue upon the defence, and each party in his pleading (if any) subsequent to reply, may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined, but it may except any facts which the party is willing to admit, and shall then operate as a denial of the facts not so admitted.

Denial to be substantial answer.

A.C.T.O. 23 r. 19.

19. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but must answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. If an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those circumstances.

Effect of denial of contract.

A.C.T.O. 23 r. 20.

20. When a contract, promise, or agreement is alleged in any pleading or particulars, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, promise, or agreement, whether with reference to the Statute of Frauds or otherwise.

Ο. 23 rr. 21-28; Ο. 24 r. 1

Contents of documents.

Cf. E.O. 18 r. 7.

21. Whenever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof unless the precise words of the document or any part thereof are material.

Allegation of malice, intent, or knowledge.

Cf. Ε.Ο. 82 r. 3.

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

Of notice.

A.C.T.O. 23 r. 23.

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

Of implied contract or relation.

A.C.T.O. 23 r. 24.

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

Presumptions of law.

Cf. E.O. 18 r. 7.

25. A party need not in any pleading allege any matter of fact which the lav/ presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied (e.g.—consideration for a bill of exchange where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim.).

Actions for trespass.

Vic.O. 19 r. 25a.

26.—(1.) In actions for trespass to land the close or place in which the trespass is alleged to have been committed must be designated in the statement of claim by name or abuttals or other description, or by a plan drawn in the margin.

(2.) If the land is subject to the provisions of the Real Property Act and Ordinance 1886 to 1965, the reference to the Certificate of Title in which the land is comprised shall be specified.

Technical objection.

A.C.T.O. 23 r. 27.

Striking out scandals and matters tending tο embarrass or delay.

Cf.E.O.18 r. 19.

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

28. The Court or a Judge may, at any stage of the proceedings, order to be struck out or amended any matter in any indorsement or pleading which is unnecessary or scandalous, or may tend to prejudice, embarrass, or delay the fair trial of the action, and may in any such case, if it or he thinks fit, order the costs of the application to be paid as between solicitor and client.

ORDER 24.

Statement of Claim.

Statement of claim.

A.C.T.O.24 r.1. Cf. Vic.O. 20 r. 1.

1.—(1.) Subject to the next succeeding sub-rule, and to the provision of Order 14, rule 11, as to filing a statement of claim where there is no appearance, a plaintiff shall deliver a statement of claim either with the

Ο. 24 rr. 2-7; Ο. 25 rr. 1-2

writ of summons or notice in lieu of writ of summons or at any time after appearance, but where a defendant has appeared, a statement of claim shall not be delivered more than ten days after appearance, unless that time is extended by the Court or a Judge.

(2.) Where the writ is specially indorsed with or accompanied by a statement of claim under Order 4, rule 5, no further statement of claim shall be delivered unless the Court or a Judge otherwise orders.

Probate actions.

Cf.E.O.76 r. 11.

2. In probate actions the plaintiff shall, unless otherwise ordered by the Court or a Judge, deliver his. statement of claim within six weeks from the entry of appearance by the defendant, or from the time limited for his appearance, in case he has made default, but where the defendant has appeared the plaintiff shall not be compelled to deliver it until the expiration of eight days after the defendant has filed his affidavit as to scripts.

Alteration of claim without amendment or writ.

Cf.E.O. 18 r. 15.

3. Whenever a statement of claim is delivered, the plaintiff may therein alter, modify, or extend his claim without any amendment of the indorsement of the writ.

Specific relief to be claimed.

Cf.E.O. 18 r. 15, 18.

4. Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and it shall not be necessary to ask for further or other relief, which may always be given, as the Court or a Judge thinks just, to the same extent as if it had been asked for. The same rule shall apply to any counter-claim made, or relief claimed by the defendant, in his defence.

Several claims and defences,

A.C.T.O. 24 r. 5.

5. Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. The same rule shall apply where the defendant relies upon several distinct grounds of defence, set-off, or counter-claim founded upon separate and distinct facts.

Account stated.

A.C.T.O. 24 r.6.

6. In every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars, but in every case in which a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the pleadings.

Probate actions.

Cf. Ε.Ο. 76 r. 13 (1.).

7. In probate actions, where the plaintiff disputes the interest of the defendant, he shall allege in his statement of claim that he denies the defendant’s interest.

ORDER 25.

Defence and Counter-claim.

Denial of debt inadmissible.

A.C.T.O. 25 r. 1.

1. In actions for a debt or liquidated demand in money comprised in Order 4, rule 5, a mere denial of the debt shall be inadmissible.

Bills of exchange, &c.

A.C.T.O. 25 r. 2.

2. In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact (e.g., the drawing, making, indorsing, accepting, presenting, or notice of dishonour of the bill or note).

Ο. 25 rr. 3-11

Simple contracts, bonds, &c.

A.C.T.O. 25 r. 3.

3. In actions comprised in Order 4, rule 5, classes (a) and (b), a defence in denial shall deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed (e.g., in actions for goods bargained and sold or sold and delivered, the defence shall deny the order or contract, the delivery, or the amount claimed; in an action for money had and received, it shall deny the receipt of the money, or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff).

Damages.

Cf. Ε. Ο. 18 r. 13 (4.).

4. No denial or defence shall be necessary as to damages claimed or their amount and they shall be deemed to be put in issue in all cases, unless expressly admitted.

Representative capacities specifically traversed.

A.C.T.O. 25 r. 5.

5. If either party wishes to deny the right of any other party to claim as executor or as trustee, whether in bankruptcy or otherwise, or in any representative or other alleged capacity, or the alleged constitution of any partnership, he shall deny the same specifically.

Time for delivery of defence.

Cf. Ε. Ο. 18 r. 2.

6. Where a defendant has entered an appearance he shall deliver his defence within fourteen days from the time limited for appearance, or from the delivery of statement of claim, whichever is the later, unless the time is. extended by the Court or a Judge or, in actions in which the writ of summons has been specially indorsed or accompanied by a statement under Order 4, rule 5, the plaintiff in the meantime serves a summons for judgment under Order 15.

Leave to defend under O. 15 or 16.

Cf. Ε. Ο. 18 r. 2.

7. Where leave has been given to a defendant to defend under Order 15 or Order 16, he shall deliver his defence (if any) within the time (if any) giving him leave to defend, and if no time is thereby limited, then within eight days after the order.

Time for defence.

A.C.T.O. 25 r. 8.

8. When a statement of claim is delivered pursuant to an order, or filed in default of appearance under Order 14, rule 11, the defendant unless otherwise ordered, shall deliver his defence within such time (if any) as is specified in auch order, or, if no time is specified, within ten days from the delivery, or filing in default, of the statement of claim, unless in either case the time is extended by the Court or a Judge.

Costs of improper traverse or refusal to admit.

A.C.T.O. 25 r. 9.

9. Where the Court or a Judge is of opinion that any allegations of fact denied or not admitted by the defence ought to have been admitted, the Court or a Judge may make such order as is just with respect to any extra costs occasioned by their having been denied or not admitted.

Counter-claim to be so stated.

Cf. E.O. 15 r. 2.

10. Where a defendant seeks to rely upon any grounds as supporting a right of counter-claim, he shall state specifically that he does so by way of counter-claim.

Defence including person not party.

Cf. E.O. 15 r. 3.

11. Where a defendant by his defence sets up any counter-claim which raises, questions between himself and the plaintiff along with any other persons, he shall add to the title of his defence a further title similar to the title in a statement of claim, setting forth the names of all the persons who, if such counter-claim were to be enforced by cross action, would be

Ο. 25 rr. 12-19

defendants to such cross action, and shall deliver his statement of defence to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff.

Service on person not party.

Cf. E.O. 15 r. 3.

12. Where any such person as is mentioned in the last preceding rule is not a party to the action, he shall be summoned to appear by being served with a copy of the defence, and such service shall be regulated by the same provisions as are contained in these Rules with respect to the service of a writ of summons, and every defence so served shall be indorsed in accordance with Form 18 in the First Schedule.

Must appear.

Cf. E.O. 15 r. 3.

13. Any person not already a party to the action, who is served with a defence and counter-claim as mentioned in the last preceding rule must appear thereto, and may be proceeded against as if he had been served with a writ of summons to appear in an action.

May deliver reply.

Cf. E.O. 15 r. 3 (2.).

14. Any person named in a defence as a party to a counter-claim thereby made, may, without leave, deliver a reply within ten days from the service upon him of a copy of the defence, or within such other time as the Court or a Judge orders.

Counter-claim may be excluded from action.

Cf. E.O. 15 r. 5.

15. Where a defendant sets up a counter-claim, if the plaintiff or any other person named as a party to such counter-claim contends that the claim thereby raised ought not to be disposed of by way of counter-claim, but in an independent action, he may apply, before reply, to the Court or a Judge for an order that such counter-claim be excluded, and the Court or a Judge may, on the hearing of such application, make such order as is just.

Counter-claim may proceed though action stayed.

Cf. E.O. 15 r. 2.

16. If in any case in which a defendant sets up a counter-claim, the action of the plaintiff is stayed, discontinued, or dismissed, the counter-claim may nevertheless be proceeded with, and the defendant counter-claiming shall, for all the purposes relating to the trial of the counter-claim, be deemed to be the plaintiff, and the plaintiff or the third party the defendant.

Judgment may be given for defendant for balance.

Cf. E.O. 13 r. 2.

17. Where in any action a set-off or counter-claim is established as a defence against the plaintiff’s claim, the Court or a Judge may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he is entitled to upon the merits of the case.

Notice in Probate actions.

A.C.T.O. 25 r. 18.

18. In probate actions the party opposing a will may, with his defence, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event, be liable to pay the costs of the other side, unless the Judge is of opinion that there was no reasonable ground for opposing the will.

No pleading in abatement.

A.C.T.O. 25 r. 19

19. A plea or defence in abatement shall not be pleaded.

Ο. 25 rr. 20-22; Ο. 26 rr, 1-2

Plea of the title unnecessary.

A.C.T.O. 25 r. 20.

20.—(1.) A defendant in an action for the recovery of land who is in possession by himself or his tenant need not plead his title, unless his defence depends on an equitable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff.

(2.) Except in the cases mentioned in the last preceding sub-rule, it shall be sufficient to state by way of defence that he is in possession, and it shall be taken to be implied in such statement that he denies or does not admit the allegations of fact contained in the plaintiff’s statement of claim.

(3.) The defendant may nevertheless rely upon any ground of defence which he can prove, except as mentioned in sub-rule (1.) of this rule.

Defence of judgment recovered.

Vic.O. 21 r. 22.

21. Where a defendant in his defence relies on a judgment recovered he shall in the margin of his defence state the date of such judgment, and, if such judgment is in a court of record, the number and title (if any) of the proceedings in which the judgment was recovered, and, in default of his so doing, the plaintiff may proceed as for default of pleading, and, in case the same is falsely stated by the defendant, the plaintiff, on producing a certificate from the proper officer or person having the custody of the records or proceedings of the Court where such judgment is alleged to have been recovered, that there is no such record or entry of a judgment as is therein stated, may proceed as for default of pleading.

Issue of nul tiel record.

Vic.O. 21 r. 23.

22. On a reply or other pleading denying the existence of a record pleaded by the defendant, a rule for the defendant to produce the record shall not be necessary or used, and instead thereof a seven days’ notice shall be substituted, requiring the defendant to produce the record, otherwise judgment.

ORDER 26.

Payment into and out of Court and Tender.

Payment into Court.

Cf. Ε.Ο. 18 r. 16.

Ε.Ο. 22 r. 1.

E.O. 75 r. 22.

1.—(1.) In any action for a debt or damages the defendant may at any time after appearance, upon notice to the plaintiff, pay into Court a sum of money in satisfaction of the claim, or, where several causes of action are joined in one action, in satisfaction of one or more of the causes of action:

Provided that where a defence setting up tender before action is pleaded, the sum of money alleged to have been tendered shall be brought into Court.

(2.) Where the money is paid into Court in satisfaction of one or more of several causes of action, the notice shall specify the cause or causes of action in respect of which payment is made, and the sum paid in respect of each of such causes of action, unless the Court or a Judge otherwise orders.

(3.) The notice shall be in accordance with Form 19 in the First Schedule, and shall state whether liability is admitted or denied, and receipt of the notice shall be acknowledged in writing by the plaintiff within three days.

Plaintiff may take out money.

Cf. E.O. 22 r. 3, 4, 10, E.O. 75 r. 22, E.O. 82 r. 5.

2.—(1.) Where money is paid into Court under rule 1 of this Order, the plaintiff may, within seven days after the receipt of the notice of payment into Court, accept the whole sum, or any one or more of the specified

Ο. 26 rr. 3-6

sums, in satisfaction of the claim or of the cause or causes of action to which the specified sum or sums relate, by giving notice to the defendant in accordance with Form 20 in the First Schedule, and thereupon he shall be entitled to receive payment of the accepted sum or sums in satisfaction of the claim or cause or causes of action, as the case may be.

(2.) Payment shall be made to the plaintiff, or, on his written authority, to his solicitor, and thereupon proceedings in the action or in respect of the specified cause or causes of action, as the case may be, shall be stayed.

(3.) If the plaintiff accepts money paid into Court in satisfaction of his claim, or if he accepts a sum or sums paid in respect of one or more of specified causes of action, and gives notice that he abandons the other cause or causes of action, he may, after four days from payment-out, and unless the Court or a Judge otherwise orders, tax his costs incurred to the time of payment into Court, and forty-eight hours after taxation may sign judgment for his taxed costs.

(4.) The plaintiff in an action for libel or slander who takes money out of Court may apply by summons to a Judge in Chambers for leave to make in open court a statement in terms approved by the Judge.

(5.) This rule shall not apply to an action or cause of action to which a defence of tender before action is pleaded.

Money remaining in Court.

Cf. E.O. 22 r. 5.

3. If the whole of the money in Court is not taken out under rule 2 of this Order the money remaining in Court shall not be paid out except in satisfaction of the claim or specified cause or causes of action in respect of which it was paid in, and in pursuance of an order of the Court or a Judge, which may be made at any time before, at, or after trial.

Several Defendants.

Cf. E.O. 22 r. 1, 3, 4, E.O. 82 r. 4.

4.—(1.) Money may be paid into Court under rule 1 of this Order by one or more of several defendants sued jointly or in the alternative, upon notice to the other defendant or defendants.

(2.) If the plaintiff elects within seven days after receipt of notice of payment into Court to accept the sum or sums paid into Court, he may give notice in accordance with Form 20 in the First Schedule to each defendant.

(3.) All further proceedings in the action or in respect of a specified cause or causes of action, as the case may be, shall thereupon be stayed, and the money shall not be paid out except in pursuance of an order of the Court or a Judge dealing with the whole costs of the action or cause or causes of action, as the case may be.

Counterclaim.

Cf. E.O. 22 r. 6.

5. The plaintiff or other person made defendant to a counter-claim may pay money into Court in accordance with the preceding rules of this Order with the necessary modifications.

Non-disclosure of payment into Court.

Cf. E.O. 22 r. 7.

E.O. 82 r. 4.

6. Except in an action to which a defence of tender before action is pleaded, no statement of the fact that money has been paid into Court under the preceding rales of this Order shall be inserted in the pleadings, and no communication of that fact shall at the trial of any action be made to the Judge or jury, until all question of liability or amount of debt or damages have been decided, but the Judge shall, in exercising his discretion as to costs, take into account both the fact that money has been paid into Court and the amount of such payment.

Ο. 26 rr. 7-10; Ο. 27 rr. 1-3

Payment in under order.

Cf. E.O. 22 r. 8.

7. Money paid into Court under an order of the Court or a Judge shall not be paid out of Court except in pursuance of an order of the Court or a Judge:

Appropriation.

Provided that, where money has been paid into Court by the defendant pursuant to an order under the provisions of Order 15, he may (unless the Court or a Judge otherwise orders) by his pleading or notice in writing appropriate the whole or any part of such money, and any additional payment if necessary to the whole or any specified portion of the plaintiff’s claim, and the money so appropriated shall thereupon be deemed to be money paid into Court pursuant to the preceding rules of this Order relating to money paid into Court, and shall be subject in all respects thereto.

Money recovered by infant, &c, paid into Court tο abide order.

A.C.T.O. 26 r. 8.

8.—(1.) In any cause or matter in which a sum of money has been awarded to or recovered by an infant or mentally defective person not found so by inquisition, the Court or a Judge may, at or after the trial, order that the whole or any part of such sum shall be paid into Court to the credit of an account intituled in the cause or matter, and any sum so paid into Court, and any dividend or interest thereon, shall be subject to such order as is from time to time made by the Court or a Judge concerning the same, and may either be invested or be paid out of Court or transferred to such persons, to be held and applied upon and for such trust and in such manner as the Court or the Judge directs.

(2.) Nothing in this rule shall prejudice the lien of a solicitor for costs.

A.C.T.O. 26 r.9.

9. The provisions of rule 8 of this Order shall apply mutatis mutandis to the case of an action which is settled on behalf of an infant before trial.

Money or securities how dealt with.

A.C.T.O. 26 r. 10.

10. Money paid into Court or securities purchased under the provisions of the preceding rules, and the dividends or interest thereon, shall be sold, transferred, or paid out to the party entitled thereto pursuant to the order of the Court or a Judge.

ORDER 27.

Reply and Close of Pleadings.

Time for delivery of reply.

Cf. Ε.Ο. 18 r. 3.

1. Where the plaintiff desires to deliver a reply, he shall deliver it within seven days after the delivery of the defence.

Reply to counter-claim.

Cf. Ε.Ο. 18 r. 3, 18.

Ε.Ο. 19 r. 8.

Close of pleadings.

Cf. Ε.Ο. 18 r. 14, 20.

2. Where a counter-claim is pleaded, a reply thereto shall be subject to the rules applicable to defences.

3.—(1.) Where—

Ο. 27 rr. 4-5; Ο. 28 rr. 1-3

(2.) This rule shall not apply to a reply to a counter-claim, and, unless the plaintiff delivers a reply to a counter-claim, the statements of fact contained in the counter-claim shall, at the expiration of fourteen days from the delivery of the counter-claim, or of such time (if any) as is by order allowed for delivery of a reply to the counter-claim, be deemed to be admitted, but the Court or a Judge may at any subsequent time give leave to the plaintiff to deliver a reply.

Memorandum of close of pleadings to be filed.

A.C.T.O. 27 r. 4.

4. Where there are pleadings, the plaintiff shall, within twenty-one clear days after the close of the pleadings, file a memorandum thereof, and pay the fees and jury fees (if any) payable on entering the cause for trial. The plaintiff shall state in such memorandum whether the parties have consented to a trial on affidavit. Such memorandum shall be in accordance with Form 21 in the First Schedule.

No new assignment.

A.C.T.O. 27 r. 5.

5. No new assignment shall be necessary or used, but everything which was formerly alleged by way of new assignment may be introduced by amendment of the statement of claim, or by way of reply.

ORDER 28.

Matters Arising Pending the Action.

Defence arising before statement of defence.

Cf. E.O. 18 r. 9.

1.—(1.) Where there are pleadings, any ground of defence which has arisen after action brought, but before the defendant has delivered his statement of defence and before the time limited for his doing so has expired, may be raised by the defendant in his statement of defence, either alone or together with other grounds of defence. If, after a statement of defence has been delivered, any ground of defence arises to any set-off or counter-claim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply.

(2.) Where there are no pleadings, the defendant shall not, except by leave of a Judge, be allowed to rely on any ground of defence which has arisen after action brought, unless he has given, within eight days after such ground of defence arose, notice in writing to the plaintiff stating the particulars thereof.

Defence arising after statement of defence.

A.C.T.O. 28 r. 2.

2. Where any ground of defence arises after the defendant has delivered a statement of defence, or after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any set-off or counter-claim arises after reply, or after the time limited for delivering a reply has expired, the plaintiff may, within eight days after such ground of defence has arisen, or at any subsequent time by leave of the Court or a Judge, deliver a further defence or further reply (as the case may be) setting forth the same.

Confession of defence.

A.C.T.O. 28 r. 3.

3.—(1.) Whenever any defendant, in his statement of defence, or in any further statement of defence as in the last preceding rule mentioned, or by notice in writing under sub-rule (1.) of rule 1 of this Order, alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence, which confession may be in accordance with Form 22 in the First Schedule, and

Ο. 29 rr. 1-5; Ο. 30 r. 1

Costs.

he may thereupon sign judgment for his costs up to the time of the pleading of such defence, or the giving of such notice, unless the Court or a Judge, either before or after the delivery of such confession, otherwise orders.

(2.) This rule shall apply mutatis mutandis to a reply to a counterclaim.

ORDER 29.

Proceedings in Lieu of Demurrer.

No demurrer allowed.

A.C.T.O. 29 r. 1.

1. A demurrer shall not be allowed.

Points of law how disposed of.

Cf. E.O.18r. 11.

Order thereon.

Cf. E.O. 34 r. 2.

Striking out pleadings.

Cf.E.O.18 r. 19.

Declaratory judgment.

E.O. 15 r. 17.

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

ORDER 30.

Discontinuance.

May be entire or partial.

A.C.T.O. 30 r. 1.

1.—(1.) The plaintiff may, where there are pleadings, at any time before the receipt of the defendant’s defence, or, after the receipt thereof, before taking any other proceeding in the action (save any interlocutory application), and, where there are no pleadings, the plaintiff may, within fifteen days after appearance, by notice in writing, wholly discontinue his action against all or any of the defendants, or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay the defendant’s costs of the action, or, if the action is not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal (as the case may be) shall not be a defence to any subsequent action.

(2.) Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court or a Judge, but the Court or a Judge may, before

Ο. 30 rr. 2-4; Ο. 31 rr. 1-4

or at or after the hearing or trial, upon such terms as to costs and as to any other action and otherwise as are just, order the action to be discontinued, or any part of the alleged cause of complaint to be strack out.

Striking out defence.

(3.) The Court or a Judge may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof without such leave.

Withdrawal by consent.

A.C.T.O. 30 r. 2.

2. A cause may be discontinued at any time upon filing a consent in writing signed by all parties.

Costs.

A.C.T.O. 30 r. 3.

3. A defendant may enter judgment for the costs of the action if it is wholly discontinued against him, or for the costs occasioned by the matter withdrawn if the action is not wholly discontinued, in case such respective costs are not paid within four days after taxation.

Subsequent action stayed until costs paid.

Cf. E.O. 21 r. 5.

4. If any subsequent action is brought before payment of the costs of a discontinued action for the same, or substantially the same, cause of action the Court or a Judge may, if it or he thinks fit, order a stay of such subsequent action until such costs have been paid.

ORDER 31.

Default of Pleading.

Non-delivery of statement of claim.

Cf. E.O. 19 r, 1.

1. If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court or a Judge to dismiss the action with costs, for want of prosecution, and on the hearing of such application the Court or a Judge may, if no statement of claim has been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as to the Court or the Judge seem just.

Judgment by default.

Cf. E.O. 19 r. 2.

E.O. 83 r. 4.

2. If the plaintiff’s claim is only for a debt or liquidated demand, and the defendant, being bound to deliver a defence, does not, within the time allowed for that purpose, deliver such defence, the plaintiff may, at the expiration of such time, enter final judgment for the amount claimed with costs.

Default of one of several defendants.

Cf. E.O. 19 r. 2.

3. When in any such action as in the last preceding rule mentioned there are several defendants, if one of them makes default as mentioned in the last preceding rule, the plaintiff may enter final judgment against the defendant so making default, and issue execution upon such judgment, without prejudice to his right to proceed with his action against the other defendants.

Damages.

Cf. E.O. 19 r. 3.

Detention of goods.

4. If the plaintiff’s claim is for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, and the defendant, or all the defendants, if more than one, make default as mentioned in rule 2 of this Order, the plaintiff may enter interlocutory judgment against the defendant or defendants, and the value of the goods, and the damages, or the damages only, as the case may be, shall be ascertained by the Court or a Judge.

Ο. 31 rr. 5-11

On default of one or more of several defendants.

Cf. E.O. 19 r. 4, 6.

5. When in any such action as is mentioned in rule 4 of this Order there are several defendants, if ons or more of them makes default as mentioned in rule 2 of this Order, the plaintiff may enter interlocutory judgment against the defendant or defendants so making default, and proceed with his action against the others. In such case the value and amount of damages against the defendant making default shall be assessed at the same time with the trial of the action or issues therein against the other defendants, unless the Court or a Judge otherwise directs.

Debt or damages and detention of goods or damages.

Cf. E.O. 19 r. 6.

6. If the plaintiff’s claim is for a debt or liquidated demand, and also for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, and any defendant makes default as mentioned in rule 2 of this Order, the plaintiff may enter final judgment for the debt or liquidated demand, and may also enter interlocutory judgment for the value of goods and the damages, or damages only, as the case may be, and proceed as mentioned in rules 4 and 5 of this Order.

Recovery of land.

Cf. E.O. 19 r. 5.

7. In an action for the recovery of land, if the defendant makes default as mentioned in rule 2 of this Order, the plaintiff may enter judgment that the person whose title is asserted in the writ of summons recover possession of the land, with his costs.

Mesne profits.

Cf. E.O. 19 r. 6.

8. Where the plaintiff has endorsed a claim for mesne profits, arrears of rent, or double value in respect of the premises claimed, or any part of them, or damages for breach of contract or wrong or injury to the premises claimed upon a writ for the recovery of land, if the defendant makes default as mentioned in rule 2 of this Order, or (if there is more than one defendant) some or one of the defendants make such default, the plaintiff may enter judgment against the defaulting defendant or defendants and proceed as mentioned in rules 4 and 5 of this Order.

Where a defence is delivered to part of claim only.

A.C.T.O. 31 r. 9.

9. If the plaintiff’s claim is for a debt or liquidated demand, or for pecuniary damages only, or for the detention of goods with or without a claim for pecuniary damages, or for any of such matters, or for the recovery of land, and the defendant delivers a defence which purports to offer an answer to part only of the plaintiff’s alleged cause of action, the plaintiff may by leave of the Court of a Judge enter judgment, final, or interlocutory, as the case may be, for the part unanswered, provided that the unanswered part consists of a separate cause of action, or is severable from the rest (as in the case of part of a debt or liquidated demand):

Provided that where there is a counter-claim, execution on any such judgment in respect of the plaintiff’s claim shall not issue without leave of the Court or a Judge.

Probate actions.

Cf. Ε.Ο. 76 r. 14.

10. In probate actions, if any defendant makes default in delivering a defence, the action may proceed, notwithstanding such default.

Application for judgment on default.

Cf. E.O. 19 r. 7.

11. In all actions other than those mentioned in the preceding rules of this Order, if the defendant, being bound to deliver a defence, makes default in delivering the same, the plaintiff may apply to the Court or a Judge for judgment, and such judgment shall be given as, upon the writ or statement of claim, the Court or a Judge considers the plaintiff is entitled to.

Ο. 31 rr. 12-14; Ο. 32 rr. 1-4

On default of one of several defendants.

Cf, E.O. 19 r. 7.

12. Where in any such action as is mentioned in the last preceding rule there are several defendants, then if one of such defendants makes such default as is mentioned in the last preceding rule the plaintiff may either, if the cause of action is severable, set down the action at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants.

Default of any other party to issue.

Cf. E.O. 16 r. 5 (2.).

13. In any case in which issues arise in an action other than between plaintiff and defendant, if any party to any such issue makes default in delivering any pleading which he is bound to deliver, the opposite party may apply to the Court or a Judge for such judgment (if any) as upon the pleadings he appears to be entitled to, and the Court or a Judge may order judgment to be entered accordingly, or may make such other order as is necessary to do complete justice between the parties.

Judgment by default may be set aside.

Cf. E.O. 16 r. 5, E.O. 19 r. 9, E.O. 75 r. 20.

14. Any judgment by default, whether under this or any other Order, may be set aside by the Court or a Judge upon such terms as to costs or otherwise as the Court or the Judge thinks fit, and where an action has been set down on motion for judgment under rule 11 of this Order, such setting down may be dealt with by the Court or a Judge in the same way as if the judgment by default had been signed when the case was set down.

ORDER 32.

Amendment.

Of indorsement or pleadings.

Cf. E.O. 20 r. 5, 8.

1. The Court or a Judge may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner, and on such terms, as are just, and all such amendments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties.

Plaintiff may amend once without leave.

Cf. E.O. 20 r. 3.

2. The plaintiff may, without any leave, amend his statement of claim, whether indorsed on the writ or not, once at any time before the expiration of the time limited for reply, and before replying, or where no defence is delivered, at any time before the expiration of fifteen days from the appearance of the defendant who has last appeared, or, where a defence is delivered, but no order for reply is made, within ten days from delivery of the defence or the last of the defences.

Defendant may amend without leave within time limited.

Cf. E.O. 20 r. 3.

3. A defendant who has set up any set-off or counter-claim may, without any leave, amend such-set-off or counter-claim at any time before the expiration of the time allowed him for answering the reply, and before such answer, or, in case there is no reply, then at any time before the expiration of fifteen days from the delivery of the defence.

Amended pleading may be disallowed.

Cf. E.O. 20 r. 4.

4. Where any party has amended his pleading under either of the last two preceding rules, the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the Court or a Judge to disallow the amendment or any part thereof, and the Court or a Judge may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as are just.

Ο. 32 rr. 5-13

Amended pleading to meet amendment.

Cf. E.O. 20 r. 3.

5. Where any party has amended his pleading under rules 2 or 3 of this Order, the opposite party shall plead to the amended pleading, or amend his pleading, within the time he then has to plead, or within eight days from the delivery of the amendment, whichever last expires, and in case the opposite party has pleaded before the delivery of the amendment, and does not plead again, or amend, within the time abovementioned, he shall be deemed to rely on his original pleading in answer to such amendment.

Amendment by leave.

Cf. E.O. 20 r. 5.

6. In all cases not provided for by the preceding rules of this Order, application for leave to amend may be made by either party to the Court or a Judge, or to the Judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as are just.

Failure to amend within time limited.

Cf. E.O. 20 r. 9.

7. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or, if no time is thereby limited, then within fourteen days from the date of the order, such order to amend sball, on the expiration of such limited time or of such fourteen days (as the case may be), become ipso facto void, unless the time is extended by the Court or a Judge.

Mode of amendment.

Cf.E.O.20 r. 10.

8. An indorsement or a pleading may be amended by written alterations in the copy which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than One hundred and forty-four words in any one place, or are so numerous, or of such a nature, that the making them in writing would render the document difficult or inconvenient to read, in either of which cases the amendment must be made by delivering the document as amended.

Marking amendment.

Cf.E.O. 20 r. 10.

9. Whenever any indorsement or pleading is amended, the same when amended shall be marked with the date of the order (if any) under which the same is so amended, and of the day on which such amendment is made, in manner following, viz.:— “Amended the

day of 19 , pursuant to order

dated the

Delivery of amended pleading.

Cf. E.O. 28 r. 10, E.O. 20 r. 1 (2.), 3 (1.).

10. Whenever any indorsement or pleading is amended, such amended document shall be delivered to the opposite party within the time allowed for amending the same.

Clerical mistakes in judgments.

Cf. E.O.20r. 11.

11. Clerical mistakes in judgments or orders., or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court or a Judge on motion or summons, without an appeal.

Amendment of proceedings.

Cf. E.O. 20 r. 8.

12. The Court or a Judge may, at any time and on such terms as to costs, or otherwise, as. the Court or the Judge thinks just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.

Costs.

A.C.T.O. 32 r. 13.

13. The cost of and occasioned by any amendment made pursuant to rules 2 and 3 of this Order shall be borne by the party making the same, unless the Court or a Judge otherwise orders.

Ο. 33 rr. 1-8

ORDER 33.

Summons for Directions.

Summons for directions.

Cf. E.O. 25 r. 1.

1.—(1.) A plaintiff may, within seven days from the time when the pleadings are deemed to be closed, take out a summons for directions returnable in not less than four days.

(2.) Where the plaintiff applies for judgment under Order 15 or Order 16, a Judge may deal with the application as if the plaintiff had been entitled to take out, and had taken out, a summons for directions.

(3.) This rule shall not apply to actions in which the plaintiff has applied for judgment under Order 15 and directions have been given, to actions for infringement of a patent, or to any proceeding commenced by originating summons, but in any such action or proceeding a summons for direction may be taken out at the instance of any party thereto.

Interlocutory proceedings.

Cf. E.O. 25 r. 2.

2. Upon the hearing of the summons the Judge shall, so far as practicable, make such order as is just with respect to all the proceedings to be taken in the action, and as to the costs thereof, and more particularly with respect to the following matters:—Pleadings, particulars, admissions, discovery, interrogatories, inspection of documents, inspection of real or personal property, commissions, examination of witnesses, place, time, and mode of trial, and the mode by which particular facts may be proved at the trial.

Speedy trial.

A.C.T.O. 33 r. 3.

3. Upon the hearing of the summons the Judge may order the action to be set down for trial forthwith, and may settle the issues that are to be tried.

No affidavit to be used.

Vic.O. 30 r. 3.

4. An affidavit shall not be made or used on the hearing of the summons except by order of a Judge.

Parties to apply for directions.

Vic.O. 30 r. 4.

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

Subsequent applications.

Vic.O. 30 r. 5.

6. Any application subsequently to the original summons for any directions as to any interlocutory matter or thing by any party shall be made under the summons by two clear days’ notice to the other party, stating the grounds of the application.

Costs of subsequent applications.

Vic.O. 30 r. 6.

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

Evidence.

Vic.O. 30 r. 7.

8. On the hearing of the summons a Judge may order that evidence of any particular fact, to be specified in the order, shall be given at the trial by statement on oath of information and belief, or by production of documents or entries in books, or by copies of documents or entries, or otherwise as the Judge directs.

Ο. 33 r. 9; Ο. 34 rr. 1-7

Interlocutory proceedings when no summons for directions.

Vic.O. 30 r. 8.

9. Where no summons for directions has been taken out, a Judge may, on an ordinary summons, make an order respecting any matter that might have been dealt with under a summons for directions.

ORDER 34.

Discovery and Inspection.

Discovery by interrogations.

Cf. E.O. 26 r. 1, 3.

1. In any cause or matter the plaintiff or defendant, by leave of a Judge, may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories, when delivered, shall have a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer:

Provided that a Judge may order that any or all of such interrogatories may be answered by some person on behalf of any party, and in such case the answers of such person shall be as effective and binding in all respects as if they had been made by the party interrogated:

Provided further than interrogatories which do not relate to any matters in question in the action, cause, or matter shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

When ex parte.

A.C.T.O.34 r.2.

2. Where no summons for directions has been taken out, orders for interrogatories, discovery, and inspection may be made ex parte.

Offer to discover to be considered.

Vic.O. 31 r. 2.

3. In deciding upon any application for leave to deliver interrogatories a Judge shall take into account any offer which has been made by the party sought to be interrogated to deliver particulars, to make admissions, or to produce documents relating to the matter in question, or any of them, and the Judge, in granting leave to administer interrogatories, may grant such leave—

Costs of unreasonable or vexatious interrogatories.

A.C.T.O.34 r.4.

4. In adjusting the costs of the cause or matter inquiry shall, at the instance of any party, be made into the propriety of delivering such interrogatories, and if it is the opinion of the taxing officer or of the Court or a Judge, either with or without an application for inquiry, that such interrogatories have been delivered unreasonably, vexatiously, or at improper length, the costs occasioned by the interrogatories and the answers thereto shall be paid in any event by the party in fault.

Costs of discovery.

Vic.O. 31 r. 3.

5. The costs of interrogatories and answers thereto, or of discovery and complying therewith, shall ultimately be borne by the party requiring the same unless the Court or a Judge otherwise orders.

Form of interrogatories.

Cf. Ε.Ο. 26 r. 1.

6. Interrogatories shall be in accordance with Form 23 in the First Schedule.

Interrogatories to corporation or company.

Cf. E.O. 26 r. 2.

7. If any party to a cause or matter is a body corporate or a company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer

Ο. 34 rr. 8-15

or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly.

Objections may be taken in answer.

Cf. E.O. 26 r. 4.

8. Any objection to answering any one or more of several interrogatories, on the ground that it or they is or are scandalous or irrelevant, or not made bona fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer.

Applications to set aside.

A.C.T.O.34 r.9.

9. Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or may be struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous, and any application for this purpose shall be made within four days after service of the interrogatories.

Answer.

Cf. E.O. 26 r. 1.

10. Interrogatories shall be answered by affidavit, which shall be filed within ten days after service of the interrogatories, or within such other time as a Judge allows.

Form.

Cf. E.O. 26 r. 4.

11. An affidavit in answer to interrogatories shall be in accordance with Form 24 in the First Schedule.

Order for further answers.

Cf. E.O. 26 r. 5.

12. If any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the Court or a Judge for an order requiring him to answer, or to answer further (as the case may be), and an order may be made requiring him to answer, or answer further, either by affidavit or by viva voce examination, as the Court or the Judge making the order directs.

Discovery of documents.

Cf. E.O. 24 r. 3, 8.

13. Any party may, without filing an affidavit, apply to the Court or a Judge for an order directing any other party to the cause or matter to make discovery on oath of the documents which are or have been in his possession or power relating to any matter in question therein. On the hearing of the application the Court or a Judge may either refuse or adjourn the same if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order, either generally or limited to certain classes of documents, as is, in its or his discretion, thought fit:

Provided that discovery shall not be ordered unless, and so far as, the Court or a Judge is of opinion that it is necessary either for disposing fairly of the cause or matter or for saving costs.

Affidavit in opposition.

Cf. E.O. 24 r. 5.

14. The affidavit to be made by a party against whom an order as is mentioned in the last preceding rule has been made shall specify which (if any) of the documents therein mentioned he objects to produce, and shall be in accordance with Form 25 in the First Schedule.

Neglect to make discovery.

Vic.O. 31 r. 13a.

15. If any party neglects or refuses to make discovery within the time limited, or makes insufficient discovery, the Court or a Judge may order compliance with such discovery upon such terms as the Court or the Judge thinks fit.

Ο. 34 rr. 16-20

Production of documents.

Cf.E.O.24 r. 13.

16. The Court or a Judge may at any time during the pendency of any cause or matter, order the production by any party thereto, upon oath, of such of the documents in his possession or power relating to any matter in question in such cause or matter as the Court or the Judge thinks right, and the Court or a Judge may deal with such documents, when produced, in such manner as appears just.

Inspection of documents.

Cf.E.O.24 r. 11.

17. Every party to a cause or matter may at any time, by notice in writing, give notice to any other party, in whose writ, pleading, particulars, or affidavit reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor and to permit him to take copies thereof, and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such cause or matter unless he satisfies the Court or a Judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court or the Judge deems sufficient for not complying with such notice, in which case the Court or the Judge may allow the same to be put in evidence on such terms as to costs and otherwise as the Court or the Judge thinks fit.

Notice tο produce.

E.O. 31 r. 16.

18. Notice to any party to produce any document referred to in his writ, pleading, particulars, or affidavit shall be in accordance with Form 26 in the First Schedule.

Appointment for inspection.

Cf. E.O. 24 r. 11.

19. The party to whom such notice is given shall, within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit as is mentioned in rule 14 of this Order, or if any of the documents referred to in such notice have not been set forth by him in any such affidavit, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, or, if he appears in person, at some office not more than three miles from the office of the Master, or, in the case of bankers’ books or other books of account, or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice may be in accordance with Form 27 in the First Schedule.

Order for inspection.

Cf. E.O. 24 r. 12, 14.

20.—(1.) If the party served with the notice under rule 18 of this Order omits to give such notice of a time for inspection, or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, a Judge may, on the application of the party desiring it, make an order for inspection in such place and in such manner as he thinks fit.

Application for it.

(2.) Any application to inspect documents except such as are referred to in the writ, pleadings, particulars, or affidavit of the party against whom the application is made, or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party.

Ο. 34 rr. 21-24

Verified copies.

Cf. E.O. 24 r. 7, 14, 16.

21.—(1.) Where inspection of any business books is applied for, the Court or a Judge may, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original books any and what erasures, interlineations, or alterations:

Provided that notwithstanding that such copy has been supplied, the Court or a Judge may order inspection of the books from which the copy was made,

Privileged documents.

(2.) Where, on an application for an order for inspection, privilege is claimed for any document, the Court or a Judge may inspect the document for the purpose of deciding as to the validity of the claim of privilege.

Power to order discovery of particular document or class of documents.

(3.) The Court or a Judge may, on the application of any party to a cause or matter, at any time, and whether an affidavit of documents has or has not already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been, in his possession or power, and, if they are not then in his possession, when he parted with the same, and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time had, in his possession or power the document or documents specified in the application, and that they relate to the matters in question in the cause or matter, or to some of them.

Question of discovery or inspection may be reserved.

Cf. E.O. 24 r. 4.

22. If the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court or a Judge may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the cause or matter, or that for any other reason it is desirable that any issue or question in dispute in the cause or matter should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

Attachment on failure to comply with order.

Cf. E.O. 24 r. 17.

E.O. 26 r. 6.

23. If any party fails to comply with an order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence (if any) struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court or a Judge for an order to that effect, and an order may be made accordingly.

Service on solicitor.

E.O. 31 r. 22.

24. Service of an order for interrogatories or discovery or inspection made against any party on his solicitor shall be sufficient service to found an application for an attachment for disobedience to the order, but the party against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order.

Ο. 34 rr. 25-28; Ο. 35 rr. 1-4

Notice to client.

Cf.E.O.24 r. 17.

E.O. 26 r. 6.

25. A solicitor, upon whom an order against any party for interrogatories or discovery or inspection is served under the last preceding rule, who neglects, without reasonable excuse, to give notice thereof to his client, shall be liable to attachment.

One answer or part may be used without the rest.

Cf. E.O. 26 r. 7.

26. Any party may, at the trial of a cause, matter, or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer:

Provided always that in such a case a Judge may look at the whole of the answers, and if he is of opinion that any others of them are so connected with those put in the last-mentioned answers ought not to be used without them, he may direct them to be put in.

Action against or by Sheriff.

A.C.T.O. 34 r. 27.

27. In any acion against or by the Sheriff in respect of any matters connected with the execution of his office, the Court or a Judge may, on the application of either party, order that the affidavit to be made in answer either to interrogatories, or to an order for discovery, shall be made by the officer actually concerned.

Order to apply to infants.

A.C.T.O. 34 r. 28.

28. This Order shall apply to infant plaintiffs and defendants, and to their next friends and guardians ad litem.

ORDER 35.

Admissions.

Notice of admission of facts.

Cf. E.O. 27 r. 1.

1. Any party to a cause or matter may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.

Notice to admit documents.

Cf. E.O. 27 r. 5.

Costs of refusal or neglect to admit.

Cf. E.O. 27 r. 5.

2. Either party may call upon the other party to admit any document, saving all just exceptions, and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the cause or matter may be, unless at the trial or hearing the Court or a Judge certifies that the refusal to admit was reasonable, and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the taxing officer, a saving of expense.

Form of notice.

Cf. E.O. 27 r. 5.

3. A notice to admit documents shall be in accordance with Form 28 in the First Schedule.

Notice to admit facts.

Cf. E.O. 27 r. 2.

Costs of refusal or neglect to admit.

4. Any party may, by notice in writing, at any time not later than nine days before the day for which notice of trial has been given, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in such notice, and in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as is allowed by the Court or a Judge, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the cause, matter, or issue may be, unless at the trial or hearing the Court or a Judge

Ο. 35 rr. 5-9; Ο. 36 rr. 1-2

certifies that the refusal to admit was reasonable, or unless the Court or a Judge at any time otherwise orders or directs:

Provided that any admission made in pursuance of such notice is. to be deemed to be made only for the purposes of the particular cause, matter, or issue, and not as an admission to be used against the party on any other occasion, or in favour of any person other than the party giving the notice:

Provided further that the Court or a Judge may at any time allow any party to amend or withdraw any admission so made, on such terms as are just.

Form of notice of admissions.

A.C.T.O. 35 r. 5.

5. A notice to admit facts shall be in accordance with Form 29 in the First Schedule, and admissions of facts shall be in accordance with Form 30 in the First Schedule.

Judgment or order upon admissions of facts.

Cf. E.O. 27 r. 3.

6. Any party may, at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court or a Judge for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court or a Judge may, upon such application, make such order, or give such judgment, as the Court or the Judge thinks just.

Affidavit of signature to admissions.

A.C.T.O. 35 r. 7.

7. An affidavit of the solicitor or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents or facts, shall be sufficient evidence of such admissions, if evidence thereof is required.

Notice to produce documents.

Cf. E.O. 27 r. 5.

8.—(1.) Notice to produce documents shall be in accordance with Form 31 in the First Schedule.

(2.) An affidavit of the solicitor, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served.

Costs of notice where documents unnecessary.

A.C.T.O. 35 r. 9.

9. If a notice to admit or produce comprises documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice.

ORDER 36.

Issues, Inquiries and Accounts.

Preparation of issues.

E.O. 33 r. 1.

1. Where in any cause or matter it appears to the Court or a Judge that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and such issues shall, if the parties differ, be settled by the Court or a Judge.

Application for.

A.C.T.O. 36 r. 2.

2. Any party may at any stage of the proceedings in a cause or matter apply to the Court or a Judge for a direction to have issues prepared, and all or any of the parties, their solicitors, and other persons may be examined viva voce, and all documents which may be necessary to the inquiry shall be be produced for inspection.

Ο. 36 rr3-12

Inquiry of account at any stage.

E.O. 33 r. 2.

3. The Court or a Judge may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries or accounts to be made or taken, notwithstanding that it appears that there is some special or further relief sought for, or some special issue to be tried, as to which it is proper that the cause or matter should proceed in the ordinary manner.

Where account ordered Court may give special directions as to mode of taking same.

E.O. 33 r. 3.

4. The Court or a Judge may, either by the judgment or order directing such account, or by any subsequent order, give special directions with respect to the mode in which the account is to be taken or vouched, and in particular, may direct that in taking the account the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they are advised.

Accounts to be verified by affidavit.

E.O. 33 r. 4.

5. Where any account is directed to be taken, the accounting party unless the Court or a Judge otherwise directs, shall make out his account and verify the same by affidavit. The items on each side of the account shall be numbered consecutively, and the account shall be referred to by the affidavit as an exhibit, and be filed.

Mode of vouching accounts.

E.O. 33 r. 4a.

6. Upon the taking of any account, the Court or a Judge may direct that the vouchers shall be produced at the office of the solicitor of the accounting party, or at any other convenient place, and that only such items as are contested or surcharged shall be brought before a Judge in Chambers.

Surcharge.

E.O. 33 r. 5.

7. Any party seeking to charge any accounting party beyond what he has by his account admitted to have received, shall give notice thereof to the accounting party, stating, so far as he is able, the amount sought to be charged, and the particulars thereof, in a short and succinct manner.

Inquiry as to outstanding estate.

E.O. 33 r. 6.

8. Every judgment or order for a general account of the estate of a testator or intestate shall contain a direction for an inquiry as to what parts (if any) of such estate are outstanding or undisposed of, unless the Court or a Judge otherwise directs.

Directions to be numbered.

E.O. 33 r 7.

9. Whenever by any judgment or order, whether made in Court or in Chambers, any accounts are directed to be taken or inquiries to be made, each such direction shall be numbered so that, as far as may be, each distinct account and inquiry may be designated by a number, and such judgment or order shall be in accordance with Form 32 in the First Schedule.

Just allowances.

E.O. 33 r. 8.

10. In taking any account directed by any judgment or order, all just allowances shall be made without any direction for that purpose.

Registrar to report.

Cf. E.O. 33 r. 8a.

11. In any case in which there has been undue delay in the proceedings before him, the Master shall report to the Court or a Judge the fact of such delay in such proceedings, and shall state, in his opinion, the cause thereof.

Delay in prosecution of accounts.

Cf. E.O. 33 r. 9.

12. If it appears to the Court or a Judge, on the representation of the Master or otherwise, that there is any undue delay in the prosecution of any accounts or inquiries or any other proceedings under any judgment or order, the Court or the Judge may require the party having the conduct of

Ο. 37 rr. 1-6

the proceedings, or any other party, to explain the delay, and may thereupon make such order with regard to expediting the proceedings or the conduct thereof or the stay thereof, and as to the costs of the proceedings, as the circumstances of the case require.

ORDER 37.

I.—Special Case.

Questions of law.

E.O. 34 r. 1.

Power tο draw inferences.

1. The parties to any cause or matter may concur in stating the questions of law arising therein in the form of a special case for the opinion of the Court. Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as are necessary to enable the Court to decide the questions raised thereby. Upon the argument of such case the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial.

Preliminary question of law.

E.O. 34 r. 2.

Stay of proceedings.

2. If it appears to the Court or a Judge that there is in any cause or matter a question of law which it would be convenient to have decided before any evidence is given, or any question or issue of fact is tried, or before any reference is made to a referee or arbitrator, the Court or the Judge may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court or the Judge deems expedient, and all such other or further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

Special case.

Cf. E.O. 34 r. 3.

3. Every special case shall be signed by the several parties, or their counsel or solicitors, and shall be filed by the plaintiff.

Copies for the Judge.

Vic.O. 34 r. 3a.

4. Four clear days before the day appointed for argument, the plaintiff shall deliver a copy of the special case for the use of the Judge hearing the argument, and in default thereof the other party may on the day following deliver such copy, and the costs thereof shall be costs in the cause, unless otherwise ordered.

Married woman, infant, or mentally defective person.

Cf. E.O. r. 10.

5. A special case in a cause of matter to which a married woman (not being a party thereto in respect of her separate property or of any separate right of action by or against her), infant, or mentally defective person (not so found by inquisition) is a party shall not be set down for argument without leave of the Court or a Judge, the application for which must be supported by sufficient evidence that the statements contained in such special case, so far as the same affect the interest of such married women, infant, or mentally defective person, are true.

Entry of special case for argument.

Cf. E.O. 34 r. 5.

6. Either party may enter a special case for argument by delivering to the Master a memorandum of entry, in accordance with Form 33 in the First Schedule, and also if any married woman (except in the cases specially provided for by rule 5 of this Order), infant, or mentally defective person (not so found by inquisition) is a party to the cause or matter, producing a copy of the order giving leave to enter the same for argument.

Ο. 37 rr. 7-12

Agreement of damages and costs.

E.O. 34 r. 6.

7. The parties to a special case may, if they think fit, enter into an agreement in writing that, upon the judgment of the Court being given in the affirmative or negative of the question or questions of law raised by the special case, a sum of money, fixed by the parties or to be ascertained by the Court or in such manner as the Court directs, shall be paid by one of the parties to the other of them, either with or without costs of the cause or matter, and the judgment of the Court may be entered for the sum so agreed or ascertained, with or without costs (as the case may be), and execution may issue forthwith upon such judgment unless otherwise agreed or unless stayed on appeal.

Application of order.

E.O. 34 r. 7.

8. This Order shall apply to every special case stated in a cause or matter or in any proceeding incidental thereto.

II.—Issue of Facts Without Pleadings.

Trial of questions of fact by consent.

A.C.T.O. 37 r. 9.

9. When the parties to a cause or matter are agreed as to the questions of fact to be decided between them, they may, after writ issued and before judgment, by consent and order of the Court or a Judge, proceed to the trial of any such questions of fact, and in such mode as are agreed upon, without formal pleadings, and such questions may be stated for trial in an issue in accordance with Form 34 in the First Schedule. The issue shall be filed by the plaintiff within four days after the making of such order, and the proper fees and jury fees (if any) payable by him shall be paid, and thereupon the like proceedings shall be had and taken as in the case of an ordinary action after notice of the close of pleadings has been filed. If the plaintiff fails to file such issue within the prescribed time, and pay such fees, the cause or matter shall, unless the Court or a Judge orders otherwise, be wholly discontinued, and the plaintiff shall pay the defendant’s costs of such cause or matter.

Amount agreed to be paid.

A.C.T.O. 37 r. 10.

10. The Court or a Judge may, by consent of the parties, order that, upon the finding of the affirmative or negative of such issue, as in the last preceding rule mentioned, a sum of money fixed by the parties, or to be ascertained upon a question inserted in the issue for that purpose, shall be paid by one of the parties to the other of them, either with or without the costs of the cause or matter.

Judgment and execution.

A.C.T.O. 37 r. 11.

11. Upon the finding of any such issue as is mentioned in rule 9 of this Order, judgment may be entered for the sum fixed or ascertained in accordance with the provisions of the last preceding rule, with or without costs (as the case may be), and execution may issue upon such judgment forthwith unless otherwise agreed, or unless the Court or a Judge otherwise orders, for the purpose of giving either party an opportunity of moving to set aside the finding or for a new trial.

Proceedings may be recorded.

A.C.T.O. 37 r. 12.

12. The proceedings upon such issue as is mentioned in rule 9 of this Order may be recorded at the instance of either party, and the judgment, whether recorded or not, shall have the same effect as any other judgment in a contested action.

Ο. 38 rr. 1-7

ORDER 38.

Trial.

Mode of entry of trial.

A.C.T.O. 38 r. 3.

1.—(1.) Immediately after—

the Master shall enter the cause or issue for trial or for the assessment of damages (as the case may be) at the sittings at the place of trial to be holden next after the time of entering such cause, or at such other time as the Court or a Judge orders:

Provided that such action shall not be tried or heard before the expiration of twenty-one days from the time of such setting down.

(2.) The Master shall, except in cases under Order 14, rule 5, thereupon give notice of trial to the parties to such action. Such notice shall be in accordance with Form 35 in the First Schedule.

Notice of trial where no summons for directions.

A.C.T.O. 38 r. 4.

2. Where in any action a summons for directions has not been taken out, or in an action for trial without pleadings where it has not been otherwise ordered, the plaintiff shall, within twenty days after appearance, serve twenty-one days’ notice of trial without pleadings, and also serve a copy thereof upon the Master who shall, unless a Judge otherwise orders, set the case down for trial upon the day mentioned in such notice, or as soon thereafter as is practicable. Such notice shall be in accordance with Form 36 in the First Schedule.

Dismissal for want of prosecution.

Vic.O. 36 r. 12.

3. If the plaintiff does not, within the prescribed time, or within such extended time as the Court or a Judge allows, file the memorandum of the close of the pleadings and pay the fees and jury fees (if any) payable on entering the cause for trial, or does not give the notice of trial required by the last preceding rule, the defendant may apply to the Court or a Judge to dismiss the action for want of prosecution, and on the hearing of such application the Court or a Judge may order the action to be dismissed accordingly, or may make such other order, and on such terms, as are just.

For sittings in Darwin.

Vic.O. 36 r. 17.

4. Entry of trial for Darwin shall not be or operate as for any particular sittings, but shall be deemed to be for any day on which the action may come on for trial in its order upon the list.

For sittings out of Darwin.

Vic.O, 36 r. 18.

5. Entry of trial for elsewhere than in Darwin shall be deemed to be for the next sitting of the Court at the place for which it is entered for trial.

Delivery of copies of pleadings on entering action.

Vic.O. 36 r. 21.

6. The plaintiff shall, within seven days after the cause or issue has been entered for trial, deliver to the Master two copies of the whole of the pleadings, or of the issue, one of which shall be for the use of the Judge at the trial. Such copies shall be typed, except as to such parts (if any) of the documents as are by these Rules permitted to be written.

Non-appearance of defendant at trial.

E.O. 36 r. 31.

7. If, when a trial is called on, the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.

Ο. 38 rr. 8-16

Of plaintiff.

E.O. 36 r. 32.

8. If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove such counter-claim, so far as the burden of proof lies upon him.

Of plaintiff and defendant.

Vic.O. 36 r. 24.

9. If, when a trial is called on, neither the plaintiff nor the defendant appears, the cause may be struck out, and shall thereupon, unless the Court or a Judge otherwise orders, be wholly discontinued, and neither party shall be entitled to costs.

Special defences where no pleadings.

Vic.O. 36 r. 25.

10. Where there are no pleadings or issues, the defendant shall not, except by leave of the Court or a Judge, be allowed to rely on a set-off or a counter-claim, or on the defence of infancy, coverture, fraud, illegality, truth (in an action of defamation) or facts in mitigation of damages in such action, defence on equitable grounds, statutory limitation of actions, or discharge under any law relating to bankruptcy or the winding up of companies, unless he has given, within twenty days after appearance, notice to the plaintiff stating the grounds and the particulars upon which he relies. A copy of any such notice shall be filed by the plaintiff for the use of the Judge at the trial.

Judge may call on defendant for defence in certain cases.

Vic.O. 36 r. 26.

11. Where there are no pleadings or issues, the Judge may, at any stage of the trial, call upon the defendant to give a concise statement of his defence, and, except by leave of the Judge, no other defence shall be open to the defendant beyond that so stated.

Setting aside verdict obtained on party not appearing.

Cf. E.O. 36 r.

12. Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or a Judge upon such terms as are just, upon an application made within seven days after the trial.

33 Judge may postpone trial.

E.O. 36 r. 34.13. A Judge may, if he thinks it expedient for the interests of justice, postpone or adjourn the trial for such time and upon such terms (if any) as he thinks fit.

Habeas Corpus where adjournment.

E.O. 36 r. 35.

14. Where a party is brought up to attend the trial or hearing of a cause or matter by virtue of any writ of habeas corpus duly issued, and by reason of the pressure of other business, or from any other cause, the trial or hearing of the cause or matter in which such party is concerned is postponed to a future day, a new writ of habeas corpus may be issued for such future day, if the Court or a Judge so directs, without payment of any fee.

Addresses to jury.

Cf. E.O. 36 r. 36.

15. Upon a trial with a jury, the addresses to the jury shall be regulated as follows:—The party who begins, or his counsel, shall be allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the jury a second time for the purpose of summing up the evidence, and the opposite party, or his counsel, shall be allowed to open his case, and also to sum up the evidence (if any), and the right to reply shall be in the discretion of the Judge.

Evidence in mitigation of damages in libel and slander.

E.O. 82 r. 7.

16. In an action for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or

Ο. 38 rr. 17-26

slander was published, or as to the character of the plaintiff, without the leave of the Judge, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.

Disallowance of questions.

E.O. 36 r. 38.

17. A Judge may disallow any questions put in cross-examination of any party or witness which appear to him to be vexatious or not relevant to any matter proper to be inquired into.

Judgment to be entered as directed.

Cf. E.O. 36 r. 39.

18. A Judge shall, at or after trial, direct judgment to be entered as he thinks right, and a motion for judgment shall not be necessary in order to obtain that judgment.

Note of time occupied.

Cf. E.O. 36 r. 40.

19. The Associate, Master, or officer present at any hearing or trial shall make a note of the times at which such hearing or trial commences and terminates respectively, on each day on which the trial takes place, for communication to the taxing officer, if required.

Associate may enter findings.

E.O. 36 r. 41.

20. Upon every trial, where the officer present at the trial is not the officer by whom judgments ought to be entered, the Associate shall enter all such findings of fact as the Judge directs to be entered, and the directions (if any) of the Judge as to judgment, and the certificates (if any) granted by the Judge, in a book to be kept for the purpose.

Authority for judgment.

E.O. 36 r. 42.

21. If a Judge directs that any judgment be entered for any party absolutely, the certificate of his Associate or other officer to that effect shall be a sufficient authority for entering from judgment accordingly. The certificate may he in accordance with Form 37 in the First Schedule.

Trial with assessors.

E.O. 36 r. 43.

22. Trials with assessors shall take place in such manner and upon such terms as the Court or a Judge directs.

Writs of trial and inquiry abolished.

Cf. E. O. 36B r. 1.

23. No writ of trial or of inquiry shall be necessary or used and the inquiry in every case shall be had and made at any sittings without any writ for that purpose, or as the Court or a Judge directs.

Procedure on inquiry.

A.C.T.O. 38 r. 27.

24. The provisions of rules 12, 13, 14 and 15 of this Order shall, with the necessary modifications, apply to an inquiry for the assessment of damages.

Calculation of damages.

A.C.T.O. 38 r. 28.

25. In every action or proceeding in which it appears to the Court or a Judge that the amount of damages sought to be recovered is substantially a matter of calculation, it shall not be necessary to have an inquiry, but the Court or the Judge may direct that the amount for which final judgment is to be entered shall be ascertained by the Master, and the Master shall indorse upon the order for referring the amount of damages to him the amount found by him, and shall deliver the order, with such indorsement, to the person entitled to the damages, and such and the like proceedings may thereupon be had as to taxation of costs, entering judgment, and otherwise as upon the finding of a jury upon an inquiry.

Continuing cause of action.

E.O. 36b r. 7.

26. Where damages are to be assessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment.

3467/66.—3

Ο. 39 rr. 1-5

ORDER 39.

Evidence.

1. Generally.

Examination of witnesses at trial.

Cf. E.O. 37 r. 1.

1. In the abence of any agreement in writing between the parties or their solicitors, and subject to these Rules, the witnesses at the trial of any action or at any assessment of damages shall be examined viva voce and in open court.

Evidence in another cause.

E.O. 37 r. 3.

2. An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just exceptions, be read on ex parte applications by leave of the Court or a Judge, to be obtained at the time of making any such applications, and, in any other case, upon the party desiring to use such evidence giving two days’ previous notice to the other parties of his intention to read such evidence.

Office copies.

E.O. 37 r. 4.

3. Office copies of all writs, records, pleadings, and documents filed in the Court shall be admissible in evidence in all causes and matters and between all persons or parties to the same extent as the original would be admissible.

2. Examination of Witnesses.

Forms.

Cf. E.O. 37 r. 6.

4. An order for a commission to examine witnesses, and the writ of commission, shall be in accordance with Forms 38 and 39 in the First Schedule respectively.

Letters of request.

Cf. E.O. 37 r. 6a, 6b, 6c.

5.—(1.) Where the Court or a Judge so orders, there shall be issued a request to examine witnesses in lieu of a commission. The order and request shall, subject to this rule, be in accordance with Forms 40 and 41 in the First Schedule respectively.

(2.) Where an order is made for the issue of a request to examine witnesses 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 be adopted:—

(3.) Where an order is made for the examination of a witness or witnesses before the British or Australian diplomatic or consular agent in any foreign country with which a Convention in that behalf has been or is made and extended to the Commonwealth, the order shall be in accordance with Form 44 in the First Schedule.

Ο. 39 rr. 6-12

Production of documents.

E.O. 37 r. 7.

6. The Court or a Judge may, in any cause or matter at any stage of the proceedings, order the attendance of any person for the purpose of producing any writings or other documents named in the order which the Court or the Judge thinks fit to be produced:

Provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial.

Disobedience of order.

E.O. 37 r. 8.

7. Any person who wilfully disobeys any order requiring his attendance for the purpose of being examined, or producing any document, shall be deemed guilty of contempt of Court, and may be dealt with accordingly.

Expenses of witnesses.

E.O. 37 r. 9.

8. Any person required to attend for the purpose of being examined, or of producing any document, shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in Court.

Documents to be furnished to examiner.

E.O. 37 r. 10.

9. Where any witness or person is ordered to be examined before any officer of the Court, or before any person appointed for the purpose, the person, taking the examination shall be furnished by the party on whose application the order was made with a copy of the writ and pleadings (if any), or with a copy of the documents necessary to inform the person taking the examination of the questions at issue between the parties.

Examination in presence of parties.

E.O. 37 r. 11.

10. The examination shall take place in the presence of the parties, their counsel, solicitors, or agents, and the witnesses shall be subject to cross-examination and re-examination.

Mode of examination.

E.O. 37 r. 12.

11.—(1.) The depositions taken before an officer of the Court, or before any other person, appointed to take the examination shall be taken down in writing by or in presence of the examiner, not ordinarily by question and answer, but so as to represent (as nearly as may be) the statement of the witness, and when completed shall be read over to the witness and be signed by him in the presence of the parties, or such of them as think fit to attend.

Signing depositions.

(2.) If the witness refuses to sign the depositions, then the examiner shall sign the same.

(3.) The examiner may put down any particular question and answer if there appears any special reason for doing so, and may put any question to the witness as to the meaning of any answer or as to any matter arising in the course of the examination.

Questions. objected to.

(4.) Any questions which are objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the counsel, solicitor, or parties, and shall refer to such statement in the depositions, but such examiner shall not have power to decide upon the materiality or relevancy of such question.

Refusal of witness to attend or be sworn.

E.O. 37 r. 13.

12. If any person duly summoned by subpœna to attend for examination refuses to attend, or if, having attended, he refuses to be sworn, or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed, and thereupon the party requiring the attendance

Ο. 39 rr. 13-20

of the witness may apply to the Court or a Judge ex parte, or on notice, for an order directing the witness to attend, or to be sworn, or to answer any question, as. the case may be.

Objection of witness to answer.

E.O. 37 r. 14.

13. If any witness objects to any question which is put to him before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner and transmitted by him to the office of the Master, to be there filed, and the validity of the objection shall be decided by the Court or a Judge.

Costs.

E.O. 37 r. 15.

14. In any case under the last two preceding rules, the Court or a Judge may order the witness to pay any costs occasioned by his refusal or objection.

Transmission of depositions.

E.O. 37 r. 16.

15. When the examination of any witness before any examiner is concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the office of the Master, and be there filed.

Special report.

E.O. 37 r. 17.

16. The person taking the examination of a witness in pursuance of this Order may, and, if need be, shall, make a special report to the Court touching such examination, and the conduct or absence of any witness or other person thereon, and the Court or a Judge may direct such proceedings, and make such order, as upon the report is just.

Depositions when may be used.

E.O. 37 r. 18.

17. Except where otherwise provided by this Order, or directed by the Court or a Judge, no depositions shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same are offered, unless the Court or a Judge is satisfied that the deponent is dead, or beyond the Commonwealth, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature of such certificate.

Oaths.

E.O. 37 r. 19.

18. Any officer of the Court, or other person directed to take the examination of any witness or person, may administer oaths.

Subpœna for attendance of witness.

E.O. 37 r. 20.

19. Any party in any cause or matter may, by writ of subpœna  ad testificandum or subpœna duces tecum, require the attendance of any witness before an officer of the Court, or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause of matter, in like manner as such witness would be bound to attend and be examined at the hearing or trial, and any party or witness having made an affidavit to be used, or which is used, on any proceeding in the cause of matter, shall be bound, on being served with such subpœna to attend before such officer or person for cross examination.

Evidence taken after trial.

E.O. 37 r. 21.

20. Evidence taken subsequently to the hearing or trial of any cause or matter shall be taken as nearly as may be in the same manner as evidence taken at, or with a view to, a trial.

Ο. 39 r. 21-31

Practice on examination.

E.O. 37 r. 22.

21. The practice with reference to the examination, cross-examination, and re-examination of witnesses at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage.

Special directions as to evidence after trial.

E.O. 37 r. 23.

22. The practice of the Court with respect to evidence at a trial, when applied to evidence to be taken before an officer of the Court, or other person, in any cause or matter after the hearing or trial, shall be subject to any special directions which are given in any case.

Notice to use evidence taken before trial.

E.O. 37 r. 24.

23. An affidavit or deposition filed or made before issue joined in any cause or matter shall not, without leave of the Court of a Judge, be received at the hearing or trial thereof, unless, within one week after issue joined, or within such longer time as is allowed by the Court or a Judge, notice in writing has been given by the party intending to use the same to the opposite party of his intention in that behalf.

Evidence in subsequent proceedings.

E.O. 37 r. 25.

24. All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter.

3. Subpœna.

Praecipe for subpœna.

E.O. 37 r. 26.

25. Where it is intended to sue out a writ of subpœna, a praecipe for that purpose in accordance with Form 45 of the First Schedule, containing the name and the place of business or residence of the solicitor intending to sue out the same, and, where such solicitor is agent only, then also the name and place of business or residence of the principal solicitor, shall in all cases be filed.

Form of writ.

E.O. 37 r. 27.

26. A writ of subpœna shall be in accordance with one of the Forms 46, 47 or 48 in the First Schedule.

Issue.

E.O. 37 r. 28.

27. Where a subpœna is required for the attendance of a witness for the purpose of procedings in Chambers, such subpœna shall issue from the office of the Master.

Number of names.

Cf. E.O. 37 r. 29.

28. Every subpœna, other than a subpœna duces tecum, may contain any number of names, and names of witnesses may be inserted therein after the issue of the writ of subpœna without resealing.

Number in subpœna duces tecum.

Cf. E.O. 37 r. 30.

29. Only one person shall be included in a subpœna duces tecum.

Correction.

E.O. 37 r. 31.

30. In the interval between the suing out and service of any subpœna, the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ resealed upon leaving a corrected praecipe of such subpœna marked with the words “Altered and resealed”, and signed with the name and address of the solicitor or party suing out the same.

Service.

Cf. E.O. 37 r. 32.

31. The service of a writ of subpœna shall be effected by delivering a copy of the writ, and of the endorsement thereon, and at the same time producing the original writ.

Ο. 39 rr. 32-38

Affidavit of service.

Cf. E.O. 67 r. 7.

32. Affidavits filed for the purpose of proving the service of a subpœna upon any defendant must state when, where, and how, and by whom, such service was effected.

Time for service.

E.O. 37 r. 34.

33. The service of any writ of subpœna shall be of no validity unless made within twelve weeks after the teste of the writ.

4. Perpetuating Testimony

Action to perpetuate testimony.

E.O. 37 r. 35.

34. Any person who would, under the circumstances alleged by him to exist, become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, may commence an action to prepetuate any testimony which is or may be material for establishing such right or claim.

Where Crown interested.

Cf. E.O. 37 r. 36.

35. In ail actions of prepetuate testimony touching any honour, title, dignity, or office, or any other matter or thing in which the Crown has or may have any estate or interest, the Attorney-General may be made a defendant, and in all proceedings in which the depositions taken in any such action, in which the Attorney-General was so made a defendant, may be offered in evidence, such depositions shall be admissible notwithstanding any objection to such depositions upon the ground that the Crown was not a party to the action in which such depositions were taken.

Action necessary.

E.O. 37 r. 37.

36. Witnesses shall not be examined to perpetuate testimony unless an action has been commenced for the purpose.

Not to be entered for trial.

E.O. 37 r. 38.

37. An action to perpetuate the testimony of witnesses shall not be entered for trial.

5. Obtaining Evidence for Foreign Tribunals.

Letters of Request.

E.O. 37 r. 54.

38.—(1.) Where under the Imperial Foreign Tribunals Evidence Act, 1856, or the Imperial Extradition Act, 1870, any civil or commercial matter or any criminal matter is pending before a Court or Tribunal of a foreign country and it is made to appear to the Court or a Judge, by Commission Rogatoire, or Letter of Request, or other evidence as provided in this rule, that such Court or Tribunal is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction, the Court or the Judge may, on the ex parte application of any person shown to be duly authorized to make the application on behalf of such foreign Court or Tribunal, and on production of the Commission Rogatoire or Letter of Request, or of a certificate signed in the manner, and certifying to the effect, mentioned in section 2 of the Imperial Foreign Tribunals Evidence Act, 1856, or such other evidence as the Court or the Judge requires, make such order or orders as are necessary to give effect to the intention of the Acts above-mentioned in conformity with section 1 of the Imperial Foreign Tribunals Evidence Act, 1856.

(2.) In this rule, any reference to an Imperial Act shall be read as including a reference to that Act as subsequently amended.

Ο. 39 rr. 39-44; Ο. 40 rr. 1-2

Form of Order.

E.O. 37 r. 55.

39. An order made under the last preceding rule shall be in accordance with Form 49 in the First Schedule.

Examiner.

E.O. 37 r. 56.

40. The examination may be ordered to be taken before any fit and proper person nominated by the person applying, or before any officer of the Court, or such other qualified person as the Court or a Judge seems fit.

Transmission of depositions.

E.O. 37 r. 57.

41. Unless otherwise provided in the order for examination, the person before whom the examination is taken shall, on its completion, forward the same to the Master, and on receipt thereof the Master shall append thereto a certificate, in accordance with Form 50 in the First Schedule, duly sealed with the seal of the Court and shall forward the depositions so certified, and the Commission Rogatoire or Letter of Request, if any, to the Attorney-General for transmission to the country from which the request came.

Transmission direct to Foreign Tribunal.

Vic.O. 37 r, 57A.

42. The Court or a Judge may in any case and at any time order that the certified depositions and the Commission Rogatoire or Letter of Request (if any) shall be forwarded to the Attorney-General for transmission direct to the Foreign Court or Tribunal desirous of obtaining the testimony.

Mode of examination.

A.C.T.O. 39 r. 43.

43.—(1.) An order made under rule 38 of this Order may, if the Court or Judge thinks fit, direct the examination to be taken in such manner as is. requested by the Commission Rogatoire or Letter of Request from the Foreign Court, or therein signified to be in accordance with the practice or requirements of such Court or Tribunal, or is, for the same reason, requested by the applicant for such order.

(2.) In the absence of any such special directions, the examination shall be taken in the manner prescribed by these Rules and the practice of the Court.

Application by Crown Law Officer.

E.O. 37, r. 60.

44. Where a Commission Rogatoire or Letter of Request, as mentioned in rule 38 of this Order, is transmitted to the Court by the Administrator, with an intimation that it is desirable that effect should be given to the same without requiring an application to be made to the Court by the agent in the Territory of any of the parties to the action or matter in the foreign country, the Master shall transmit the same to the Crown Law Officer, who may thereupon, with the consent of the Attorney-General, make such applications and take such steps as are necessary to give effect to such Commission Rogatoire or Letter of Request, in accordance with rules 38 to 44 of this Order.

ORDER 40.

I.—Affidavits and Depositions.

Evidence by affidavit.

Cf. E.O. 38 r. 1.

1. Upon any motion, petition, or summons, evidence may be given by affidavit, but the Court or a Judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit.

Title.

Cf. E.O. 38 r. 2.

2. Every affidavit shall be intituled in the cause or matter in which it is sworn, and shall bear the number of the cause or matter, but in every

Ο. 40 rr. 3-9

case in which there is more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff or defendant respectively, and that there are other plaintiffs or defendants, as the case may be, and the costs occasioned by any unnecessary prolixity in any such title shall be disallowed by the taxing officer.

Matter of affidavit.

Cf. E.O. 38 r. 3.

Costs.

3. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions or applications, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which unnecessarily sets forth matters of hearsay, or argumentative matter, or copies of or extracts from documents,, shall be paid by the party filing the same.

Before whom sworn.

Cf. E.O. 38 r. 4.

4.—(1.) Affidavits may be sworn, whether within or outside the Territory, before a notary public, before a justice of the peace of any State or Territory of the Commonwealth, or before any person having authority to administer an oath in that place.

(2.) The Court, each Judge, and all officers of the Court, shall take judicial notice of the seal or signature, as the case may be, of any person authorized under this rule to take an affidavit, attached, appended, or subscribed to any affidavit.

Place to be stated.

Cf. E.O. 38 r. 5.

5. Every person administering an oath shall express the date on which and the place where, he takes any affidavit, and each separate sheet must be signed by the deponent and by the person before whom the affidavit is taken, and the date added, otherwise the same shall not be held authentic nor be admitted to be filed without the leave of the Court or a Judge, and every such person shall express the date on which and the place where he does any other act incident to his office.

Form of affidavit.

Cf. E.O. 38 r. 7.

6. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Costs shall not be allowed for any affidavit, or part of an affidavit, substantially departing from this rule.

Description of deponent.

E.O. 38 r. 8.

7. Every affidavit shall state the description and true place of abode of the deponent.

Affidavits by two or more deponents.

E.O. 38 r. 9.

8. In every affidavit made by two or more deponents, the names of the several persons making the affidavit shall be inserted in the jurat, except that, if the affidavit of all the deponents is taken at one time by the same person, it shall be sufficient to state that it was sworn by both (or all) of the “ above-named ” deponents.

Certificate on exhibit how marked.

E.O. 38 r. 24.

9. Every certificate on an exhibit referred to in an affidavit signed by the person before whom the affidavit is sworn shall be marked with the short title of the cause or matter.

Ο. 40 rr. 10-19

Affidavits to be filed.

Cf. E.O. 38 r. 10.

10.—(1.) Every affidavit shall be filed.

(2.) There shall be indorsed on every affidavit a note showing on whose behalf it was filed, and no affidavit shall be filed or used without such note unless the Court or a Judge otherwise directs.

Scandal.

Cf.E.O. 38 r. 11.

11. The Court or a Judge may order to be struck out from any affidavit any matter which is scandalous or irrelevant, and may order the costs of any application to strike out such matter to be paid as between solicitor and client.

Alterations in affidavits.

E.O. 38 r. 12.

12. No affidavit having in the jurat or body thereof any interlineation, alteration, or erasure shall, without leave of the Court or a Judge, be read or made use of in any cause or matter, unless the interlineation or alteration (not being an alteration by erasure) is authenticated by the initials of the person taking the affidavit, or, if taken at any office of the Court, either by his initials or by the stamp of that office, or, in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are rewritten and signed or initialed in the margin of the affidavit by the person taking it.

Affidavit by illiterate person.

E.O. 38 r. 13.

13. Where an affidavit is sworn by any person who appears to the person taking the affidavit to be illiterate or blind, the last-mentioned person shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent, made his or her mark or signature in the presence of that last-mentioned person. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court or a Judge is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent.

May be received though defective.

E.O. 38 r. 14.

14. The Court or a Judge may receive any affidavit sworn for the purpose of being used in any cause or matter, notwithstanding any defect, by misdescription of parties or otherwise, in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received.

Office copies.

Cf.E.O. 38 r. 15.

15. An office copy of an affidavit, duly sealed, may in all cases be used, provided the original affidavit has been previously filed.

Before whom sworn.

E.O. 38 r. 16.

16. An affidavit shall not be sufficient if it is sworn before the solicitor acting for the party on whose behalf the affidavit is to be used or before any agent or correspondent of such solicitor, or before the party himself.

Before clerk when insufficient.

E.O. 38 r. 17.

17. Any affidavit which would be insufficient if sworn before any solicitor, agent, correspondent or party himself shall be insufficient if sworn before his, clerk or partner.

Filing after time.

E.O. 38 r. 18.

18. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court or a Judge.

On ex parte order.

E.O. 38 r. 19.

19. Except by leave of the Court or a Judge, no order made ex parte in Court founded on any affidavit shall be of any force unless the affidavit on which the application was made was actually made before the order was applied for, and produced or filed at the time of making the motion.

Ο. 40 rr. 20-28

II.—Affidavits and Evidence in Chambers.

Notice of intention to use affidavit.

E.O. 38 r. 20.

20. The party intending to use any affidavit in support of any application made by him in Chambers shall give notice to the other parties concerned of his. intention in that behalf.

Affidavits used in Court may be used in Chambers.

E.O. 38 r. 21.

21. All affidavits which have been previously made and read in Court upon any proceeding in a cause or matter may be used before a Judge in Chambers.

Alterations in accounts.

E.O. 38 r. 22.

22. Every alteration in an account verified by affidavit shall be marked with the initials of the person before whom the affidavit is sworn, and such alteration shall not be made by erasure.

Exhibits.

E.O. 38 r. 23.

23. Accounts, extracts from registers, particulars of creditors’ debts, and other documents referred to by an affidavit, shall not be annexed to the affidavit, or referred to in the affidavit as annexed, but shall be referred to as exhibits.

III.—Trial on Affidavit.

Evidence on affidavit by consent.

Vic.O. 38 r. 25.

24. Unless otherwise ordered on a summons for directions, at any time before the memorandum of the close of the pleadings in any action is filed, where there are pleadings, and, where there are no pleadings, at any time before notice of trial is served upon the Master, the parties may agree that the evidence to be adduced on the trial shall be taken by affidavit:

Provided that notwithstanding such agreement the Court or a Judge at the trial may order the whole or any part of the evidence to be taken viva voce.

Affidavits of plaintiff.

A.C.T.O. 40 r. 25.

25. Within seven days after such memorandum has been filed, or such notice of trial has been served upon the Master, or within such time as the Court or a Judge allows, the plaintiff shall file his affidavits and deliver to the defendant or his solicitor a list thereof.

Of defendant.

A.C.T.O. 40 r. 26.

26. The defendant, within seven days after delivery of such list, or within such time as the Court or a Judge allows, shall file his affidavits and deliver to the plaintiff or his solicitor a list thereof.

Of plaintiff in reply.

A.C.T.O. 40 r. 27.

27. Within four days after the expiration of the last-mentioned seven days, or such other time as is allowed in pursuance of the last preceding rule, the plaintiff shall file his affidavits in reply (which shall be confined to matters strictly in reply) and shall deliver to the defendant or his solicitor a list thereof.

Cross-examination of deponent.

A.C.T.O. 40 r. 28.

28. Where the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing, requiring the production of the deponent for cross-examination at the trial. The notice shall be served at any time before the expiration of seven days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the Court or a Judge specially appoints, and unless such deponent is
Ο. 40 r. 29; Ο. 41 rr. 1-5; Ο. 42 r. 1

produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the Court or a Judge. The party producing such deponent for cross-examination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production.

Compelling attendance of deponent.

A.C.T.O. 40 r. 29.

29. The party to whom such notice as is mentioned in the last preceding rule is given may compel the attendance of the deponent for cross-examination in the same way as he might compel the attendance of a witness to be examined.

ORDER 41.

Motion for Judgment.

Judgment tο be, on motion.

E.O. 40 r. 1.

1. Except where by any law or by these Rules it is provided that judgment may be obtained in any other manner, the judgment of the Court shall be obtained by motion to the Court for judgment.

Motion where no judgment directed.

Cf. Vic.O. 40 r. 2.

2. Where at the trial of an action, the Judge abstains from directing any judgment to be entered, the plaintiff may set down a motion for judgment. If he does not so set down a motion and give notice thereof to the other parties within ten days after the trial, any defendant may set down a motion for judgment, and give notice thereof to the other parties.

Judgment after issues tried.

E.O. 40 r. 7.

3. Where issues have been ordered to be tried, or issues of questions of fact to be determined in any manner, the plaintiff may set down a motion for judgment as soon as such issues or questions have been determined. If he does not set down such a motion and give notice thereof to the other parties within ten days after his right so to do has arisen, then after the expiration of such ten days any defendant may set down a motion for judgment, and give notice thereof to the other parties.

Where certain issues only determined.

E.O. 40 r. 8.

4.—(1.) Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, and some only of such issues or questions of fact have been tried or determined, any party who considers that the result of such trial or determination renders the trial or determination of the others of them unnecessary, or renders it desirable that the trial or determination thereof should be postponed, may apply to the Court or a Judge for leave to set down a motion for judgment, without waiting for such trial or determination.

(2.) The Court or a Judge may, if satisfied of the expediency thereof, give such leave, upon such terms (if any) as are just, and may give any directions which are desirable as to postponing the trial of the other issues or questions of fact.

None after a year without leave.

E.O. 40 r. 9.

5. No motion for judgment shall, except by leave of the Court or a Judge, be set down after the expiration of one year from the time when the party seeking to set down the same first became entitled so to do.

ORDER 42.

Entry of Judgment.

Mode and form of entry of judgment.

Cf. E.O. 41 r. 1.

1. Every judgment shall be entered by the Master in a book which shall be kept for the purpose in the office of the Master. Judgments shall be in accordance with such form as is applicable in the circumstances.

Ο. 42 rr. 2-9

Preparation of judgments and orders.

Cf. E.O. 41 r. 1.

2. Every judgment and order shall be prepared by the party entitled thereto, or by such party as the Court or a Judge directs.

Where judgment pronounced in Court.

E.O. 41 r. 3.

3. Where any judgment is pronounced by the Court or a Judge in Court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the Court or a Judge otherwise orders, and the judgment shall take effect from that date:

Provided that by leave of the Court or a Judge a judgment may be ante-dated or post-dated.

Judgment under order.

E.O. 41 r. 3A.

4. When any judgment is directed to be entered by an order made on the hearing of an application for judgment under Order 15, or Order 16, the judgment shall, unless the Court or a Judge otherwise orders, be dated as of the day on which the order is made and the judgment shall take effect from that date:

Provided that the order may direct that the judgment shall not be entered until a given date, in which case the judgment shall take effect from that date.

In other cases.

E.O. 41 r. 4.

5. In all cases not within the last two preceding rules, the entry of judgment shall be dated as of the day on which the requisite documents are left with the Master for the purpose of such entry and the judgment shall take effect from that date.

Orders for performance of acts to state time.

E.O. 41 r. 5.

6. Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered shall state the time, or the time after service of the judgment or order, within which the act is to be done, and upon the copy of the judgment or order served upon the person required to obey the same, there shall be indorsed a memorandum in the words or to the effect following, viz.:—

“If you, the within-named A.B., neglect to obey this judgment (or order) by the time Therein limited, you will be liable to process of execution for the purpose of compelling you to obey the said judgment (or order).”.

Examination of documents by officer.

E.O. 41 r. 6.

7. Where under any law or these Rules it is provided that any judgment may be entered upon the filing of any affidavit or production of any document, the Master shall examine the affidavit or document produced, and if the same is regular and contains all that is by law required, he shall enter judgment accordingly.

Judgment pursuant to order or certificate.

E.O. 41 r. 7.

8. Where under any law or these Rules any judgment may be entered pursuant to any order or certificate or return to any writ, the production of such order or certificate sealed with the seal of the Court, or of such return, shall be a sufficient authority to the Master to enter judgment accordingly.

Certificate to be filed.

E.O. 41 r. 8.

9. Where reference is made to the Master to ascertain the amount for which final judgment is to be entered, the Master’s certificate shall be filed when judgment is entered.

Ο. 42 r. 10; Ο, 43 rr. 1-7

Judgment by consent.

Ε.Ο. 41 r. 9.

Cf.E.O.41 r. 10.

10.—.(1.) In any case or matter where the defendant has appeared by a solicitor, no order for entering judgment shall be made by consent unless the consent of the defendant is given by his solicitor or agent.

(2.) Where the defendant has appeared in person, no order for entering judgment shall be made by consent unless the defendant attends before a Judge and gives his consent in person, or the consent is in writing and, unless the defendant is a solicitor, is attested by a solicitor.

ORDER 43.

Execution.

No demand necessary when judgment directs money to be paid or property transferred.

E.O. 42 r. 1.

1. Whenever any person is by any judgment or order directed to pay any money, or deliver up or transfer any property, real or personal, to another, it shall not be necessary to make any demand thereof, but the person so directed shall be bound to obey such judgment or order upon being duly served with the same, without demand.

Waiver of judgment on condition.

E.O. 42 r. 2.

2. Where any person who has obtained any judgment or order upon condition does not perform or comply with such condition, he shall be considered to have waived or abandoned such judgment or order so far as the same is beneficial to himself, and any other person interested in the matter may, on breach or non-performance of the condition, take either such proceedings as the judgment or order in such ease warrants, or such proceedings as might have been taken if no such judgment or order had been made, unless the Court or a Judge otherwise directs.

Judgment for payment in Court.

E.O. 42 r. 4.

3. A judgment for the payment of money into Court may be enforced by writ of sequestration, or, in cases in which attachment is authorized by law, by attachment.

For recovery of land.

E.O. 42 r. 5.

4. A judgment for the recovery or for the delivery of the possession of land may be enforced by writ of possession.

For recovery of other property.

E.O. 42 r. 6.

5. A judgment for the recovery of any property other than land or money may be enforced—

(a) by writ for delivery of the property;

(b) by writ of attachment; or

(c) by writ of sequestration.

For any other matter.

E.O. 42 r. 7.

6. A judgment requiring any person to do any act other than the payment of money, or to abstain from doing any act, may be enforced by a writ of attachment, or by committal.

Judgment on condition, execution.

E.O. 42 r. 9.

7. Where a judgment or order is to the effect that any party is entitled to any relief subject to, or upon the fulfilment of, any condition or contingency, the party so entitled may, upon the fulfilment of the condition or contingency, and demand made upon the party against Whom he is entitled to relief, apply to the Court or a Judge for leave to issue execution against such party, and the Court or the Judge may, if satisfied that the right to relief

Ο. 43 rr. 8-13

has arisen according to the terms of the judgment or order, order that execution issue accordingly, or may direct that any issue or question necessary for the determination of the rights of the parties be tried in any of the ways in which questions arising in an action may be tried.

Production of judgment.

E.O. 42 r. 11.

8. A writ of execution shall not be issued without the production to the Master of the judgment or order upon which the writ of execution is to issue, or an office copy thereof, showing the date of entry, and the Master shall be satisfied that the proper time (if any) to entitle the party to execution has elapsed.

Praecipe.

Cf. E.O.42 r. 12.

9. No writ of execution shall be issued without the party issuing it, or his solicitor, filing a praecipe for that purpose. The praecipe shall be in accordance with one of the Forms 51 to 53 in the First Schedule or with such other form as is applicable in the circumstances, and shall be signed by or on behalf of the solicitor of the party issuing it, or by the party issuing it, if he does so in person.

Indorsement of name and address.

E.O. 42 r. 13.

10. Every writ of execution shall be indorsed with the name and place of office of business of the solicitor actually suing out the same, and, when the solicitor actually suing out the writ sues out the same as agent for another solicitor, the name and place of office or business of such other solicitor shall also be indorsed upon the writ, and in case a solicitor is not employed to issue the writ, then it shall be indorsed with a memorandum expressing that the same has been sued out by the plaintiff or defendant in person, as the case may be, mentioning the city or town, and also the name of the street (if any) and number of the house (if any) of such plaintiff’s or defendant’s residence, or otherwise describing the plaintiff’s or defendant’s place of residence.

Form of writ of execution.

E.O. 42 r. 14.

11. Every writ of execution shall bear date of the day on which it is issued, and shall be in accordance with one of the Forms 54 to 56 in the First Schedule, or with such other form as is applicable in the circumstances.

Fees and expenses.

Cf. E.O. 42 r. 15.

12. In every case of execution the party entitled to execution may levy the poundage, fees, and expenses of execution, over and above the sum recovered.

Additional fees and expenses.

Vic.O. 42 r. 15A.

13.—(1.) In every case of execution against any freehold land or chattel real, or against any land, lease, mortgage, or charge, the party entitled to execution may, over and above the sum recovered, and in addition to the poundage, fees and expenses mentioned in the last preceding rule, levy the fees and expenses properly paid on registering the judgment, or lodging the writ of fieri facias against the freehold land or chattel real, or against the land, lease, mortgage, or charge sought to be affected by the execution, together with the sum of Two dollars for the costs thereof.

Direction to Sheriff to levy.

(2.) The party or his solicitor requiring the Sheriff to levy for fees, expenses, and costs under the last preceding sub-rule, shall file with the Sheriff a specific direction in writing requiring him so to levy, together

Ο. 43 rr. 14-18

Amount to be indorsed.

E.O. 42 r. 16.

14. Every writ of execution for the recovery of money shall be indorsed with a direction to the Sheriff, or other officer or person to whom the writ is directed, to levy the amount really due and payable and sought to be recovered under the judgment or order, stating the amount, and also to levy interest thereon at the rate of eight per centum per annum from the time when the judgment or order was entered or made:

Provided that in cases where there is an agreement between the parties as to the rate of interest that shall be secured by the judgment or order, then the indorsement may be accordingly to levy interest at the rate so agreed.

Form of indorsement.

Vic.O. 42 r. 16a.

15. Every writ of fieri facias shall be indorsed as follows:—

“ Levy $  , and $  for costs of execution and also interest on $  at eight per centum per annum [or other agreed rate] from the day of               till payment, besides sheriff’s poundage, officer’s fees, costs of levying, the fees, expenses, and costs mentioned in Order 43, rule 13, if and when incurred, and all other legal incidental expenses.”.

Execution for money or costs on entry of judgment.

E.O. 42 r. 17.

16. Every person to whom any sum of money or any costs is or are payable under a judgment or order may, as soon as the money or costs is or are payable, sue out one or more writs of fieri facias to enforce payment thereof, subject nevertheless as follows:·—

Time for issue.

Stay.

Separate writs for money and costs.

E.O. 42 r. 18.

17. Upon any judgment or order for the recovery or payment of a sum of money and costs, there may be, at the election of the party entitled thereto, either one writ or separate writs of execution for the recovery of the sum and for the recovery of the costs, but a second writ shall be only for costs, and shall be issued not less than eight days after the first writ.

Writ in force for one year; with power to renew.

E.O. 42 r. 20.

18. A writ of execution, if unexecuted, shall remain in force for one year only from its issue, unless renewed in the manner provided in this rule, but such writ may, at any time before its expiration, by leave of the Court or a Judge, be renewed, by the party issuing it, for one year from the date of such renewal, and so on from time to time during the continuance of the renewed writ, either by being sealed with a seal bearing the word “Renewed” and the date of the day, month, and year of such renewal, or by such party giving a written notice of renewal to the Sheriff, signed by the party or his solicitor, and sealed with the like seal, and a writ of execution so renewed shall have effect, and be entitled to priority, according to the time of the original delivery thereof.

Ο. 43 rr. 19-26

Evidence of renewal.

E.O. 42 r. 21.

19. The production of a writ of execution, or of the notice renewing the same purporting to be marked with such seal as is mentioned in the last preceding rule showing the same to have been renewed, shall be prima facie evidence of its having been so renewed.

Execution within six years.

E.O. 42 r. 22.

20. As between the original parties to a judgment or order, execution may issue at any time within six years from the recovery of the judgment or the date of the order.

Execution by leave of Court.

E.O. 42 r. 23.

After six years or change of parties.

21. In the following cases:—

By or against husband.

Assets in futuro.

Against shareholder.

Order.

Terms.

the party alleging himself to be entitled to execution may apply by summons for leave to issue execution accordingly, and a Judge may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried, and in either case the Judge may impose such terms, as to costs or otherwise, as are just.

Order enforceable as judgment.

E.O. 42 r. 24.

22. Every order of the Court or a Judge, in any cause or matter, may be enforced against all persons bound thereby in the same manner as a judgment to the same effect.

Execution by or against person not party.

E.O. 42 r. 26.

23. Any person, not being a party to any cause or matter, who obtains any order, or in whose favour any order is made, shall be entitled to enforce obedience to such order by the same process as if he were a party to such cause or matter, and any person, not being a party to a cause or matter, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to such judgment or order as if he were a party to such cause or matter.

Audita querela abolished.

E.O. 42 r. 27.

Stay of execution.

24. No proceeding by audita querela shall hereafter be used, but any party against whom judgment has been given may apply to the Court or a Judge for a stay of execution or other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded, and the Court or a Judge may give such relief and upon such terms as are just.

Former rights reserved.

E.O. 42 r. 28.

25. Nothing in this Order shall take away or curtail any right to enforce or give effect to any judgment or order in any manner or against any person or property whatsoever.

Order of issue of writs.

E.O. 42 r. 29.

26. Nothing in this Order shall affect the order in which writs of execution may be issued.

Ο. 43 rr. 27-32

Enforcement of mandatory judgment, &c.

E.O. 42 r. 30.

27. If a mandamus, granted in an action or otherwise, or a mandatory order, injunction, or judgment for the specific performance of any contract is not complied with, the Court or a Judge may direct that besides, or instead of, proceedings against the disobedient party for contempt, the act required to be done may be done so far as is practicable by the party by whom the judgment or order has been obtained, or some other person appointed by the Court or the Judge, at the cost of the disobedient party, and upon the act being done, the expenses incurred may be ascertained in such manner as the Court or a Judge directs, and execution may issue for the amount so ascertained, and costs.

Corporation wilfully disobeying order.

E.O. 42 r. 31.

28. Any judgment or order against a corporation which is wilfully disobeyed, may, by leave of the Court or a Judge, be enforced by sequestration against the corporate property, or by attachment against the directors or other officers of the corporation, or by writ of sequestration against their property.

Enforcing award.

A.C.T.O. 43 r. 30.

29. An award may, with the leave of the Court or a Judge, and on such terms as are just, be enforced at any time, though the time for moving to set it aside has not elapsed.

Examination of judgment debtors.

E.O. 42 r. 32.

30.—(1.) Where a judgment or order is for recovery or payment of money, the party entitled to enforce it may apply ex parte to the Court or a Judge by summons for an order that the debtor liable under such judgment or order, or in the case of a corporation, that any officer thereof, be orally examined as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order, before the Master or other officer of the Court, as the Court or a Judge appoints, and the Court or a Judge may make an order for the attendance and examination of such debtor, or of any other person, and for the production of any books or documents.

(2.) The costs of any application under the last preceding sub-rule and of any proceedings arising from or incidental thereto shall be in the discretion of the Court or a Judge, or in the discretion of the Master or other officer if the Court or a Judge so directs.

(3.) It shall not be necessary for a person applying for an order under sub-rule (1.) of this rule to appear personally, or by solicitor or counsel.

In case of difficulty party may apply.

E.O. 42 r. 33.

31. In case of any judgment or order, other than one which is merely for the recovery or payment of money, if any difficulty arises in or about the execution or enforcement thereof, any party interested may apply to the Court or a Judge, and the Court or a Judge may make such order thereon for the attendance and examination of any party or otherwise as is just.

Costs.

A.C.T.O. 43 r. 33.

32. The costs of any application under the last two preceding rules or either of them, and of any proceedings arising from or incidental thereto, shall be in the discretion of the Court or a Judge, or in the discretion of such officer as is mentioned in rule 30 of this Order, if the Court or a Judge so directs.

Ο. 44 rr. 1-3; Ο. 45 rr. 1-3; Ο. 46 r. 1

ORDER 44.

Writs of Fieri Facias and Sequestration.

Writ of venditioni exponas.

E.O. 43 r. 2.

1. Where it appears, upon the return of any writ of fieri facias, that the Sheriff or other officer has, by virtue of such writ, seized, but not sold, any goods of the person directed to pay a sum of money or costs, the person to whom such sum of money or costs is payable may, immediately after such writ with such return has been filed as of record, sue out a writ of venditioni exponas.

Against estate of disobedient person.

E.O. 43 r. 6.

2. Where any person is, by any judgment or order, directed to pay money into Court, or to do any other act in a limited time, and after due service of such judgment or order refuses or neglects to obey the same according to the exigency thereof, the person prosecuting such judgment or order may, at the expiration of the time limited for the performance thereof, without obtaining any order for that purpose, issue a writ of sequestration against the estate and effects of such disobedient person.

No subpœna or without leave, sequestration for costs.

Vic.O. 43 r. 5.

3. No subpœna for the payment of costs, and, unless by leave of the Court or a Judge, no sequestration to enforce such payment, shall be issued.

ORDER 45.

Attachment.

1. A judgment or order requiring any person to do any act may be enforced by writ of attachment.

Not to issue without leave.

A.C.T.O. 45 r. 2.

2. No writ of attachment shall be issued without the leave of the Court or a Judge, which shall be applied for on notice to the party against whom the attachment is to be issued.

Undertakings.

S.A.O. 44 r. 2.

3.—(1.) An undertaking filed or recorded in the Court to do, or to abstain from doing, any act may be enforced in the same manner as a judgment or order to the like effect.

Provided that the Court or a Judge may, in the first instance, make a peremptory order for the performance of the undertaking.

(2.) In the case of non-performance of an undertaking to pay money to any person, the Court or a Judge may make an order for payment of the money, and the order may be enforced in the same manner as a judgment for the recovery of the money.

ORDER 46.

Attachment of Debts.

Order for attachment of debts.

Cf. E.O. 45 r. 1.

1.—(1.) The Master, may upon the ex parte application of any person who has obtained a judgment or order for the recovery or payment of money, either before or after any oral examination of the debtor liable under that judgment or order, and upon affidavit by himself or his solicitor stating that judgment has been recovered, or the order made, and that it

Ο. 46 rr. 2-5

is still unsatisfied, and to what amount, and that any other person is indebted to the debtor, and is within the jurisdiction, issue a summons calling on that other person to show cause why all debts owing or accruing from that other person (in these Rules called “the garnishee”) to the debtor should not be attached to answer the judgment or order, together with the costs of the garnishee proceedings. Upon the hearing of the summons the Court or a Judge may order that the garnishee shall pay to the person who has obtained the judgment or order the debt due from him to the debtor, or so much thereof as is sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.

(2.) The summons shall be served on the garnishee or his solicitor and, unless otherwise ordered, on the judgment debtor or his solicitor at least the prescribed number of days before the day of hearing.

(3.) For the purposes of the last preceding sub-rule, the prescribed number of days is the number of days that the garnishee or judgment debtor would have for appearance under Order 3 rule 6 of these Rules if he were a defendant served with a writ of summons.

(4.) Service on the judgment debtor may be made in manner provided by Order 66, rule 2 either at the address for service, if the judgment debtor has appeared in the action and given an address for service, or on his solicitor, if he has appeared by solicitor, or, if there has been no appearance, then at this usual residence or place of business, or in such other manner as the Court or a Judge directs.

Service of summons to bind debts.

A.C.T.O.46 r.2.

Cf. Vic.O. 45 r. 2.

2. Service on the garnishee of a summons issued under rule 1 of this Order shall bind all debts owing or accruing from him tο the debtor.

Execution against garnishee.

E.O. 45 r. 3.

3. If the garnishee does not forthwith pay into Court the amount due from him to the debtor liable under the judgment or order, or an amount equal to the amount of the judgment or order, or does not dispute the debt due or claimed to be due from him to the debtor, or if he does not appear upon the hearing of the summons, then the Court or a Judge may order execution to issue, and it may issue accordingly, without any previous writ or process, to levy the amount due from the garnishee, or so much thereof as is sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.

Trial of liability of garnishee.

E.O. 45 r. 4.

4. If the garnishee disputes his liability, the Court or a Judge, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in an action may be tried or determined.

Lien of third person on debt of garnishee.

E.O. 45 r. 5.

5. Whenever in proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the Court or a Judge may order such third person to appear, and state the nature and particulars of his claim upon such debt.

Ο. 46 rr. 6-9; Ο. 47 rr. 1-2

Trial of claim of third person and order thereon or on nonappearance.

E.O. 45 r. 6.

6. After hearing the allegations of any third person under such order as is mentioned in rule 5 of this Order and of any other person whom by the same or any subsequent order the Court or a Judge orders to appear, or in case of such third person not appearing when ordered, the Court or a Judge may order execution to issue to levy the amount due from such garnishee, together with the costs of the garnishee proceedings, or any issue or question to be tried or determined according to the preceding rules of this Order, and may bar the claim of such third person, or make such other order as the Court or the Judge thinks fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as the Court or the Judge thinks just and reasonable.

Discharge of garnishee.

E.O. 45 r. 7.

7. Payment made by, or execution levied upon, the garnishee under any proceeding in pursuance of this Order shall be a valid discharge to him as against the debtor liable under a judgment or order, to the amount paid or levied, although such proceeding is set aside, or the judgment or order reversed.

Debt-attachment book.

E.O. 45 r. 8.

8. There shall be kept by the Master a debt-attachment book, and in such book entries shall be made of the attachment and proceedings thereon, with names, dates, and statements of the amount recovered and otherwise, and copies of any entries made therein may be taken by any person upon application to the Master.

Costs of proceedings.

E.O. 45 r. 9.

9. The costs of any application for an attachment of debts, and of any proceedings arising from, or incidental to, such application, shall be in the discretion of the Court or a Judge, and as regards the costs of the judgment creditor shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order, and in priority to the amount of the judgment debt.

ORDER 47.

Charging Orders and Stop Orders.

1. In this Order, unless the contrary intention appears—

Interpretation.

S.A.O. 46 r. 1.

Charging of shares and securities.

S.A.O. 46 r. 2.

2. Where a judgment debtor is the beneficial owner of or has any beneficial interest in any shares or securities, the Court or a Judge, upon the application of the judgment creditor, may order that such shares or securities or any of them, or the whole of any part of the judgment debtor’s interest therein, shall stand charged with the payment of the judgment debt.

Ο. 47 rr. 3-4

Order nisi and its effects.

S.A.O. 46 r. 3.

3.—(1.) Every charging order under the last preceding Rule shall in the first instance be an order to show cause only, and may be made ex parte.

(2.) Such order nisi shall be served upon the judgment debtor and also—

(3.) After service upon him of the order nisi the judgment debtor shall not, without leave of the Court or a Judge, make or be capable of making any disposition of any shares or securities so charged until such order shall be discharged, or until the judgment debt shall be paid or satisfied, and any attempt to dispose of any shares or securities contrary to this sub-rule shall be a contempt of Court and invalid.

(4.) Such order nisi shall, as from the time of service under paragraph (a) or (b) of sub-rule (2.) of this rule, restrain all companies, corporations and persons concerned from registering any transfer of the shares or securities charged thereby, and from payment or distribution of any dividend or interest thereon or other produce thereof, until such order be made absolute or discharged.

(5.) If any company, corporation or person registers any transfer or pays or distributes any such dividend, interest or other produce in contravention of sub-rule (4) of this rule, then such company, corporation or person shall be liable to the judgment creditor for the value or amount of the shares or securities so transferred or of the dividend, interest or other produce so paid or distributed, or so much thereof as shall be sufficient to satisfy the judgment debt.

(6.) An order nisi made under this rule shall be in accordance with Form 57 in the First Schedule.

Order absolute charging shares and securities.

S.A.O 46 r. 4.

4.—(1.) Every order nisi made under the last preceding rule shall specify a time within which the judgment debtor may show cause why the order shall not be made absolute.

(2.) If the judgment debtor attends but fails to show sufficient cause to the contrary, or if he does not, within the time so specified or any such extended time as the Court or a Judge may allow, attend to show cause, and service upon him of the order nisi is proved, the Court or a Judge may make such order absolute.

(3.) The order absolute shall have the same effect as if the judgment debtor had himself charged the shares or securities with payment of the judgment debt.

(4.) The Court or a Judge may at any time (upon the application of the judgment debtor or of any person interested) vary or discharge any such order nisi or order absolute.

Ο. 47 rr. 5-8

(5.) The order absolute shall be in accordance with Form 58 in the First Schedule and shall be served as provided in sub-rule (2) of rule 3 of this Order.

Enforcement of charge against shares or securities.

S.A.O. 46 r. 5.

5. At the time of making the order absolute, or at any time thereafter, the Court or a Judge, upon proof that the judgment debt or any part thereof remains unsatisfied, may make all such orders and give all such directions as may be necessary to effect the foreclosure or sale of the shares or securities so charged, for the purpose of satisfying such judgment debt or any part thereof.

Order charging funds in Court.

S.A.O. 46 r. 6.

6.—(1.) When a judgment debtor is the beneficial owner of, or has any beneficial interest in, any funds in Court, or the income arising therefrom, the Court or a Judge, upon the application of the judgment creditor, may order that such funds or any of them, or the whole or any part of the judgment debtor’s interest in the funds or income, shall stand charged with the payment of the judgment debt.

(2.) Such order shall, in the first instance, be an order to show cause only and may be made ex parte.

(3.) Every order nisi and every order absolute made under this rule shall be served on the judgment debtor and on the Master.

(4.) After service upon him of the order nisi the judgment debtor shall not be capable of making any valid disposition of any funds charged thereby until such order shall be discharged, and any attempted disposition contrary to this sub-rule shall be invalid.

(5.) After service upon him of the order nisi the Master shall hold the funds charged thereby to abide the order of the Court or a Judge unless and until the said order nisi be discharged.

(6.) The provisions of paragraphs (1.) to (4.) inclusive of rule 4 of this Order shall apply mutatis mutandis to orders made under this rule.

(7.) At the time of making the order absolute or at any time thereafter, the Court or a Judge, upon proof that the judgment debt or any part thereof, remains unsatisfied, may make all such orders and give all such directions as may be necessary to procure the satisfaction of the judgment debt, or any part thereof, out of the funds charged by such order.

(8.) In this rule “funds” or “funds in Court” means any money, Government securities or annuity, or other securities, including shares, or any part thereof, standing or to he placed to the credit of any account in the books of the Court.

Substituted service and service out of the jurisdictions.

S.A.O. 46 r. 7.

7. The Court or a Judge may at any time make all such orders as it or be may think fit for substituted service or service by advertisement or servile out of the jurisdiction on any judgment debtor of any order nisi or order absolute made under any of the preceding rules of this Order.

Charge on partnership property

Cf.E.O. 81 r. 10.

8. Every summons by a separate judgment creditor of a partner for an order charging his interest in the partnership property and profits under section 23 of the Partnership Act, 1891 of the State of South Australia,

Ο. 47 rr. 9-16

in its application to the Territory, and for such other orders as are thereby authorized to be made, shall be served on the judgment debtor and on his partners, or such of them as are within the jurisdiction, and such service shall be good service on all the partners, and all orders made on such summons shall be similarly served.

Application by partner of judgment debtor.

Cf.E.O.81r. 10.

9. Every application made by any partner under the same section shall be made by summons, and such summons shall be served on the judgment creditor and on the judgment debtor, and on such of the other partners as do not concur in the application and as are within the jurisdiction. Such service shall be good service on all the partners, and all orders made on such summons shall be similarly served.

Filing and service of affidavit and notice as to stock.

E.O. 46 r. 4.

10. Any person claiming to be interested in any stock standing in the books of a company may, on an affidavit by himself or his solicitor in accordance with Form 59 in the First Schedule, and on filing the same, together with a notice in accordance with Form 60 in the First Schedule, and on procuring an office copy of the affidavit and a duplicate of the filed notice, serve the office copy and duplicate notice on the company.

Affidavit to state address of claimant.

E.O. 46 r. 5.

11. There shall be appended to the affidavit a note stating the person on whose behalf it is filed, and to what address notices. (if any) for that person are to be sent.

Service by post.

E.O. 46 r. 6.

12. All such notices shall be deemed to have been duly sent if sent through the post by a prepaid letter directed to that person at the address so stated or at any such substituted address as is mentioned in this Order, whether the person to whom the notice is sent is living or not.

Alteration of address.

E.O. 46 r. 7.

13. The address so stated may, from time to time, be altered by the person by or on whose behalf the affidavit is filed, but no notice sent by post before the alteration to the address originally given, or for the time being substituted therefor, shall be affected by any subsequent alteration. Any such alteration of address may be made by service of a memorandum thereof on the company in the manner required for service of a notice under this Order.

Service of affidavit and filed notice to have same effect as writ of distringas.

E.O. 46 r. 8.

14. The service of the office copy of the affidavit and of the duplicate of the filed notice shall have the same force and effect as if these Rules had not been made and a writ of distringas in respect of the stock had been duly issued.

Withdrawal οr discharge of notice.

E.O. 46 r. 9.

15. A notice filed under rule 10 of this Order may at any time be withdrawn by the person by whom or on whose behalf it was given, on a written request signed by him, or its operation may be made to cease by an order obtained by motion on notice, or by summons at Chambers, duly served by any other person claiming to be interested in the stock sought to be affected by the notice.

Effect of notice on transfer of stock or payment of dividend.

E.O. 46 r. 10.

16. If, while a notice filed under rule 10 of this Order continues in force, the company on whom it is served receives from the person in whose name the stock specified in the notice is standing, or from some person acting

Ο. 47 rr. 17-19; Ο. 48 rr. 1-3; Ο. 49 r. 1

on his behalf or representing him, a request to permit the stock to be transferred, or to pay the dividends thereon, the company shall not, by force or in consequence of the service of the notice, be authorized without the order of the Court or a Judge, to refuse to permit the transfer to be made or to withhold the payment of the dividends for more than eight days after the date of the request.

Amendment of notice.

E.O. 46 r. 11.

17. If the person who files a notice under rule 10 of this Order desires to correct the description of the stock referred to in the filed notice, he may file an amended notice and serve on the company a sealed duplicate thereof, and in that case service of the notice shall be deemed to have been made on the day on which the amended duplicate is so served.

Costs of stop order.

E.O. 46 r. 12.

18. Where any moneys or securities are in Court to the general credit of any cause or matter, or to the account of any class of persons and an order is made to prevent the transfer or payment of such moneys or securities or any part thereof, without notice to the assignee of any person entitled in expectancy or otherwise to any share or portion of such moneys or securities, the person by whom any such order is obtained on the shares of such moneys or securities affected by such order shall be liable, at the discretion of the Court or a Judge, to pay any costs, charges, and expenses which, by reason of any such order having been obtained, are occasioned to any party to the cause or matter, or any persons interested in any such moneys or securities.

Service.

E.O. 46 r. 13.

19. Any person moving on notice, or taking out a summons, for any order in pursuance of the last preceding rule, shall not be required to serve such notice or summons upon the parties to the cause or matter, or upon the persons interested in such parts of the moneys or securities as are not sought to be affected by any such order.

ORDER 48.

Writ of Possession.

Affidavit and disobedience.

E.O. 47 r. 2.

1. Where by any judgment or order any person therein named is directed to deliver up possession of any lands to some other person, the person prosecuting such judgment or order may, without any order for that purpose, and on filing an affidavit showing due service of such judgment or order and that the same has not been obeyed, sue out a writ of possession.

One or separate writs for possession.

E.O. 47 r. 3.

2. Upon any judgment or order for the recovery of any land and costs there may be either one writ or separate writs of execution for the recovery of possession and for the costs, at the election of the successful party.

Writ of assistance.

Vic.O. 47 r. 4.

3. Upon due service of a judgment or order that a party do recover possession of any land, the person prosecuting the same shall be entitled to an order for a writ of assistance.

ORDER 49.

Writ of Delivery.

Absolute order for.

E.O. 48 r. 1.

1. Where it is sought to enforce a judgment or order for the recovery of any property, other than land or money, by writ of delivery, the Court of a Judge may, upon the application of the plaintiff, order that execution

Ο. 49 r. 2; Ο, 50 rr. 1-3

shall issue for the delivery of the property, without giving the defendant the option of retaining the property upon paying the value assessed (if any), and that if the property cannot be found, and unless the Court or a Judge otherwise orders, the Sheriff shall distrain the defendant by all his lands and chattels till the defendant delivers the property, or, at the option of the plaintiff, that the Sheriff cause to be made of the defendant’s goods the assessed value (if any) of the property.

Form.

Execution for damages and costs.

E.O. 48 r. 2.

2. A writ of delivery shall be in accordance with Form 61 in the First Schedule, or with such other form as is applicable in the circumstances, and when a writ of delivery is issued, the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant’s goods the damages and costs awarded, and interest.

ORDER 50.

Actions by and Against Firms and Persons Carrying on Business in Names other than Their Own.

Actions by and against firms within the jurisdiction.

Cf. E.O. 81 r. 1, 2.

1. Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action, and any party to an action may in such case apply by summons to a Judge for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the Judge directs.

Disclosure of partners’ names.

Cf. E.O. 81 r. 2.

2. When a writ is sued out by partners in the name of their firm, the plaintiffs or their solicitor shall, on demand in writing, by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the action is brought, and if the plaintiffs or their solicitor fail to comply with such demand, all proceedings in the action may, upon an application for that purpose, be stayed upon such terms as the court or a Judge directs, and when the names of the partners are so declared, the action shall proceed in the same manner and the same consequences in all respects shall follow as if they had been named as plaintiffs in the writ, but all the proceedings shall, nevertheless, continue in the name of the firm.

Service.

Cf. E.O. 81 r. 3.

3. Where persons are sued as partners in the name of their firm under rule 1 of this order, the writ shall be served either upon any one or more of the partners, or at the principal place, within the jurisdiction, of the business of the partnership upon any person having at the time of service the control or management of the partnership business there, and, subject to these Rules, such service shall be deemed good service upon the firm so sued, whether any of the members thereof are out of the jurisdiction or not:

Provided that in the case of a co-partnership which has been dissolved, to the knowledge of the plaintiff, before the commencement of the action, the writ of summons shall be served upon every person within the jurisdiction sought to be made liable.

Ο. 50 rr. 4-9

Notice in what capacity served.

Cf. E.O. 81 r. 3.

4. Where a writ is issued against a firm, and is served as provided by rule 3 of this Order, every person upon whom it is served shall be informed by notice in writing, given at the time of such service, whether he is served as a partner, or as a person having the control or management of the partnership business, or in both characters. In default of such notice, the person served shall be deemed to be served as a partner.

Appearance of partners.

Cf. E.O. 81 r. 4.

5. Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

No appearance except by partners.

Cf. E.O. 81 r. 4.

6. Where a writ is served under rule 3 of this Order upon any person having the control or management of the partnership business, an appearance by him shall not be necessary unless he is a member of the firm sued.

Appearance under protest of person served as partner.

Cf. E.O. 81 r. 4.

7. Any person served as a partner under rule 3 of this Order may enter an appearance under protest, denying that he is a partner, but such appearance shall not preclude the plaintiff from otherwise serving the firm and obtaining judgment against the firm in default of appearance if no partner has entered an appearance in the ordinary form.

Execution of judgment against a firm.

Cf. E.O. 81 r. 5.

8.—(1.) Where a judgment or order is against a firm, execution may issue—

(2.) If the party who has obtained judgment or an order claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the Court or a Judge for leave so to do, and the Court or a Judge may give such leave if the liability is not disputed, or, if such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined.

(3.) Except as against any property of the partnership, a judgment against a firm shall not render liable, release, or otherwise affect any member thereof who was out of the jurisdiction when the writ was issued, and has not appeared to the writ, unless he has been made a party to the action under the law relating to the service of writs and notices out of the jurisdiction, or has been served within the jurisdiction after the writ in the action was issued.

Attachment of debts owing from a firm.

Cf. E.O. 81 r. 6

9.—(1.) Debts owing from a firm carrying on business within the jurisdiction may be attached under Order 46, although one or more members of the firm is resident abroad if a person having the control or management of the partnership business or some member of the firm within the jurisdiction is served with the garnishee order.

(2.) An appearance by any member pursuant to an order shall be a sufficient appearance by the firm.

Ο. 50 rr. 10-11; Ο, 51 r. 1; Ο. 52 rr. 1-4

Application of Rules to actions between co-partners.

Cf. E.O. 81 r. 6.

10. The preceding rules of this Order shall apply to actions between a firm and one or more of its members, and to actions between firms having one or more members in common provided such firm or firms carry on business within the jurisdiction, but no execution shall be issued in any such action without leave of the Court or a Judge, and on an application for leave to issue such execution all such accounts and inquiries may be directed to be taken and made, and directions given, as are just.

Application of Rules to person trading as a firm.

Cf. E.O. 81 r. 9.

11. Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name, and, so far as the nature of the case permits, all rules relating to proceedings against firms shall apply.

ORDER 51.

Consolidation.

Actions may be consolidated.

Cf.E.O. 81 r. 5,

1. Causes or matters may be consolidated by order of the Court or a Judge in, the manner in use in the Supreme Court of the State of South Australia.

ORDER 52.

I.—Interlocutory Orders as to Mandamus, Injunctions, or Interim Preservation of Property, etc.

Interim order for preservation of subject of action.

E.O. 50 r. 1.

1. Where by any contract a prima facie case of liability is established, and there is alleged as a matter of defence a right to be relieved wholly or partially from such liability, the Court or a Judge may make an order for the preservation or interim custody of the subject-matter of the litigation, or may order that the amount in dispute be brought into Court or otherwise secured.

Order for sale of perishable or other property.

E.O. 50 r. 2.

2. The Court or ,a Judge may, on the application of any party to any cause or matter, make any order for the sale, by any person or persons named in such order, and in such manner and on such terms as the Court or the Judge orders, of any goods, wares, or merchandise which are of a perishable nature or are likely to be injured from keeping, or which, for any other just and sufficient reason, it is desirable to have sold at once.

Order for detention, preservation, or inspection of property.

E.O. 50 r. 3.

3. The Court or a Judge may, upon the application of any party to a cause or matter, and upon such terms as are just, make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of those purposes, may authorize any person to enter upon or into any land or building in the possession of any party to such cause or matter, and for all or any of those purposes may authorize any samples to be taken, or any observation to be made or experiment to be tried, which seems necessary or expedient for the purpose of obtaining full information or evidence.

Judge may inspect.

Cf. E.O. 50 r. 4.

4. A Judge, with or without the jury (if any), may inspect any property or thing concerning which any question may arise in any cause or matter.

Ο. 52 rr. 5-10

Jury may inspect.

E.O. 50 r. 5.

5. The provisions of rule 3 of this Order shall apply to inspection by a jury, and in such case the Court or a Judge may make all such orders upon the Sheriff or other person as are necessary to procure the attendance of the jury at such time and place and in such manner as it or he thinks fit.

Application for order.

E.O. 50 r. 6.

6. An application for an order under section 28 of the Act or under rule 2 or 3 of this Order, may be made to the Court or a Judge by any party. If the application is by the plaintiff for an order under section 28 of the Act, it may be made either ex parte or with notice, and if for an order under rule 2 or 3 of this Order, it may be made after notice to the defendant at any time after the issue of the writ of summons, and if it is by any other party, then on notice to the plaintiff, and at any time after appearance by the party making the application.

Application by plaintiff under R. 1.

E.O. 50 r. 7.

7. An application for an order under rule 1 of this Order may be made by the plaintiff at any time after his right thereto appears from the pleadings, or, if there are no pleadings, is made to appear by affidavit or otherwise to the satisfaction of the Court or a Judge.

Payment into Court in discharge of lien.

Cf. E.O. 50 r. 8.

8. Where an action is brought to recover, or a defendant in his defence seeks by way of counter-claim to recover, specific property other than land, and the party from whom such recovery is sought does not dispute the title of the party seeking to recover the same, but claims to retain the property by virtue of a lien or otherwise as security for any sum of money, the Court or a Judge may, at any time after such last-mentioned claim appears from the pleadings, or, if there are no pleadings, by affidavit or otherwise to the satisfaction of the Court or the Judge, order that the party claiming to recover the property may pay into Court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed, and such further sum (if any) for interest and costs as the Court or the Judge directs, and that upon such payment into Court being made, the property claimed be given up to the party claiming it.

Court may allow whole or part of income.

E.O. 50 r. 9.

9. Where any real or personal property forms the subject of any proceedings in the Court, and the Court or a Judge is satisfied that the same will be more than sufficient to answer all the claims thereon which ought to be provided for in such action, the Court or the Judge may, at any time after the commencement of such proceedings, allow the parties interested therein, or any one or more of them, the whole or part of the annual income of such real property, or a part of such personal property, or the whole or part of the income thereof, up to such time as the Court or the Judge directs, and for that purpose may make such orders as appear to the Court or the Judge necessary or expedient.

Conduct of sale.

E.O. 85 r. 6.

10. Whenever in an action for the administration of the estate of a deceased person, or execution of the trusts of a written instrument, a sale is ordered of any property vested in any executor, administrator, or trustee, the conduct of such sale shall be given to such executor, administrator, or trustee, unless the Court or a Judge otherwise directs.

Ο. 52 rr. 11-19

Writ of injunction abolished.

Ε.Ο. 50 r. 11.

11. A writ of injunction shall not be issued. An injunction shall be by a judgment or order, and any such judgment or order stall have the effect which a writ of injunction previously had.

Injunction to restrain repetition or commission of acts of like kind.

E.O. 50 r. 12.

12. In any cause or matter in which an injunction has been or might have been claimed, the plaintiff may, before or after judgment, apply for an injunction to restrain the defendant or respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the commission of any injury or breach of contract of a like kind relating to the same property or right, or arising out of the same contract, and the Court or a Judge may grant the injunction, either upon or without terms, as is just.

Leave to compound penal action.

Ε.Ο. 50 r. 13.

13. Leave to compound a penal action shall not be given in cases where part of the penalty goes to the Crown, unless notice has first been given to the Attorney-General, but in other cases it may be given without notice.

Order for.

E.O. 50 r. 14.

14. The order to compound a penal action shall expressly state that the defendant undertakes to pay the sum for which the Court has given him leave to compound the action.

Crown’s portion of penalty.

E.O. 50 r. 15.

15. When leave is given to compound a penal action, where part of the penalty goes to the Crown, the Crown’s portion of the composition shall be paid into the hands of the Master for the use of the Crown.

II.—Receivers.

Appointment of receiver by way of equitable execution.

E.O. 50 r. 15a.

16. In every case in which an application is made for the appointment of a receiver by way of equitable execution, the Court or a Judge, in determining whether it is just οr convenient that such appointment should be made, shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver, and to the probable cost of his appointment, and may, if it or he thinks fit, direct any inquiries on these or other matters before making the appointment.

To give security.

E.O. 50 r. 16.

17. Except as provided in the next succeeding rule, where an order is made directing a receiver to be appointed, unless otherwise ordered the person to be appointed shall first give security, to be allowed by the Court or a Judge, and taken before a person authorized to administer oaths, duly to account for what he receives as such receiver, and to pay the same as the Court or the Judge directs, and the person so to be appointed shall, unless otherwise ordered, be allowed a proper salary or allowance. Such security shall be by recognizance in accordance with a form approved by the Court or the Judge.

Security where not exceeding 81,000.

E.O. 50 r. 16a.

18. Where the amount for which security is to be given does not exceed $1,000, such security may be given by an undertaking in accordance with Form 62 in the First Schedule. Such undertaking shall be signed by the receiver and his surety or sureties, or, in the case of a guarantee or other company, shall be sealed with the seal of such company, or otherwise duly executed. The undertaking shall be filed.

Adjournment to Chambers.

E.O. 50 r. 17.

19. Where any judgment or order is pronounced or made in Court appointing a person therein named to be receiver, the Court or the Judge may adjourn to Chambers the cause or matter then pending, in order that

Ο. 52 rr. 20-25; Ο. 53 r. 1

the person named as receiver may give security in accordance with the provisions of this Order, and may thereupon direct such judgment or order to be drawn up.

Receiver to pass accounts.

E.O. 50 r. 18.

Neglect.

20. When a receiver is appointed with a direction that he shall pass accounts, the Court or a Judge shall fix the days upon which he shall (annually, or at longer or shorter periods) leave and pass such accounts, and also the days upon which he shall pay the balances appearing due on the accounts so left, or such part thereof as is certified as proper to be paid by him, and, with respect to any receiver who neglects to leave and pass his accounts and pay the balances thereof at the times so fixed for that purpose a Judge may, from time to time, when his subsequent accounts are produced to be examined and passed, disallow the salary therein claimed by such receiver, and may also, if he thinks fit, charge him with interest at the rate of eight per centum per annum upon the balances so neglected to be paid by him during the time the same appear to have remained in the hands of any such receiver.

Form.

E.O. 50 r. 19.

21. A receiver’s account shall be in accordance with Form 63 in the First Schedule.

Affidavit verifying account.

E.O. 50 r. 20.

22. Every receiver shall leave in Chambers his account, together with an affidavit verifying the same in accordance with Form 64 in the First Schedule. An appointment shall thereupon be obtained by the plaintiff or person having the conduct of the cause for the purpose of passing such account.

Neglect of duty

E.O. 50 r. 21.

23. In case any receiver fails to leave any account or affidavit, or to pass such account, or to make any payment, or otherwise, the receiver or the parties, or any of them, may be required to attend at Chambers to show cause why such account or affidavit has not been left, or such account passed, or such payment made, or any other proper proceeding taken, and thereupon such directions as are proper may be given at Chambers or after adjournment into Court, including the discharge of any receiver and appointment of another, and payment of costs.

Books to be deposited.

E.O. 50 r. 22.

24. When a receivership has been completed, the book containing the accounts shall be deposited in the office of the Master.

III.—Liquidators, Guardians, and Committees.

Liquidators.

E.O. 50 r. 23.

25. The accounts of liquidators and guardians and of committees of mentally defective persons shall be passed and verified in the same manner as is by this Order directed as to receivers’ accounts.

ORDER 53.

Sales by the Court.

Sale of real estate may be directed any time after action.

E.O. 51 r. 1.

1. If, in any cause or matter relating to any real estate, it appears necessary or expedient that the real estate or any part thereof should be sold, the Court or a Judge may order the same to be sold, and any party bound by the order and in possession of such estate, or in receipt of the rents or profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser, or such other person as is thereby directed.

Ο. 53 rr. 2-9; Ο. 54 r. 1

Mode of carrying out sale, mortgage, partition, or exchange when ordered by Court.

H.C.O. 50 r. 2.

2. A sale, mortgage, partition or exchange ordered by the Court or a Judge shall be carried out in accordance with directions given by a Judge in Chambers.

Power to make order for sale in debenture-holders’ actions at any time.

E.O.51 r. 1b.

3. In a debenture-holder’s action, where the debenture-holders are entitled to a charge by virtue of the debentures, or of a trust deed, or otherwise, and the plaintiff is suing on behalf of himself and other debenture-holders, and a Judge is of opinion that there must eventually be a sale, he may in his discretion direct a sale before or after judgment, before all the persons interested are ascertained, whether served or not.

Sale under order.

E.O.51 r. 3

4. Where a judgment or order is given or made, whether in Court or in Chambers, directing any property to be sold, unless otherwise ordered, the same shall be sold with the approbation of a Judge to the best purchaser that can be got for the same, to be allowed by a Judge, and all such proper parties as a Judge directs shall join in the sale and conveyance.

Reserved biddings.

E.O. 51 r. 4.

5. Affidavits for the purpose of enabling the Judge to fix reserved biddings shall state the value of the property by reference to an exhibit containing such value, so that the value may not be disclosed by the affidavit when filed.

Particulars and conditions of sale.

E.O. 51 r. 5.

6. As soon as particulars and conditions of sale settled at Chambers have been printed, two prints thereof, certified by the solicitor to be correct prints of the particulars and conditions settled at the Judge’s Chambers, shall be left at Chambers.

Affidavit of result of sale.

E.O. 51 r. 6.

7. An office copy of the affidavit of the person appointed to sell of the result of the sale, with the bidding paper and particulars therein referred to, shall be left at Chambers at least one clear day before the day appointed for settling the certificate of the result of the sale.

Opinion of counsel.

E.O. 51 r. 7.

8. The Court or a Judge may require or receive the opinion of counsel for his aid and assistance in the investigation of the title to an estate with a view to an investment of money in the purchase, or on mortage thereof, or with a view to the sale thereof, or to the settlement of a draft of a lease, transfer, mortgage, settlement, conditions of sale, or other instrument, or any other matter which the Court or the Judge thinks fit to refer.

Subject to objection.

E.O. 51 r. 8.

9. Any party may object to any opinion of any such counsel and thereupon the point in dispute shall be disposed of by the Court or by a Judge according to the nature of the case.

ORDER 54.

Motions and other Applications.

Application by motion.

E.O. 52 r. 1.

1. Where by these Rules any application is authorized to be made to the Court or a Judge, such application, if made in Court, shall be made by motion.

Ο. 54 rr. 2-9

Rule to show cause.

E.O. 52 r. 2.

2. A motion or application for a rule nisi, or order to show cause, shall not be made in any action, or—

(a) to set aside, remit, or enforce an award; or

(b) for attachment; or

(c) to answer the matters in an affidavit; or

(d) against a sheriff to pay money levied under an execution.

Previous notice of motion required.

E.O. 42 r. 3.

Except in certain cases.

3. Except where according to the practice established by statute or formerly existing any order or rule may be made absolute ex parte in the first instance, and except where, notwithstanding rule 2 of this Order, a motion, or application, may be made for an order to show cause only, a motion shall not be made without previous notice to the parties affected thereby, but the Court or a Judge, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such understanding (if any) as the Court or the Judge thinks just, and any party affected by such order may move to set it aside.

Notice of motion to set aside award, &c.

E.O. 52 r. 4.

4. Every notice of motion to set aside, remit, or enforce an award, or for attachment, shall state in general terms the grounds of the application, and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion.

Two clear days between notice and hearing.

E.O. 52 r. 5.

5. Unless the Court or a Judge gives leave to the contrary, there shall be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion.

Motion dismissed or adjourned for notice on other persons.

E.O. 52 r. 6.

6. If, on the hearing of a motion or other application, the Court or a Judge is of opinion that any person to whom notice has not been given ought to have, or to have had, such notice, the Court or the Judge may either dismiss the motion or application, or adjourn the hearing thereof, in order that such notice may be given, upon such terms (if any) as the Court or the Judge thinks fit to impose.

Hearing adjourned.

E.O. 52 r. 7.

7. The hearing of any motion or application may from time to time be adjourned upon such terms (if any) as the Court or a Judge thinks fit.

Notice of motion to defendant not appearing.

E.O. 52 r. 5.

8. The plaintiff may, without any leave, serve any notice of motion, or other notice, or any petition or summons, upon any defendant, who, having been duly served with a writ of summons to appear, has not appeared within the time limited for that purpose.

By leave with writ and before appearances.

Cf. E.O. 52 r. 9.

9. The plaintiff may, by leave of the Court or a Judge, to be obtained ex parte, serve any notice of motion upon any defendant along with the writ of summons, or at any time after service of the writ of summons and before the time limited for the appearance of such defendant.

Ο. 54 rr. 10-15

No order for return of writ &c., necessary.

E.O. 52 r. 11.

10. An order shall not issue for the return of any writ or to bring in the body of a person ordered to be attached or committed, but a notice from the person issuing the writ or obtaining the order for attachment or committal (if not represented by a solicitor), or by his solictor, calling upon the Sheriff to return such writ, or to bring in the body within a given time, if not complied with, shall entitle such person to apply for an order for the committal of the Sheriff.

Order to bear date of making.

E.O. 52 r. 13.

11. Every order, if and when drawn up, shall be dated the day of the week, month, and year on which the same was made, unless the Court or a Judge otherwise directs, and shall take effect accordingly.

Order need not be drawn up in certain cases.

E.O. 52 r. 14.

12.—(1.) Where an order has been made not embodying any special terms nor including any special directions, but simply enlarging time for taking any proceeding, or doing any act, or giving leave—

Note or memorandum sufficient.

it shall not be necessary to draw up such order unless the Court or a Judge otherwise directs, but the production of a note or memorandum of such order signed by a Judge shall be sufficient authority for such enlargement of time, issue, amendment, filing, or other act.

(2.) A direction that the costs of such order shall be costs in any cause or matter shall not be deemed a special direction within the meaning of this rule.

Notice of order.

(3.) The person or solicitor of the person on whose application such order is made shall forthwith give notice in writing thereof to such persons (if any) as would, if this rule had not been made, have been required to be served with such order.

Petition to state parties to be served.

Cf. E.O. 9 r. 12.

13. At the foot of every petition (not being a petition of course) presented to the Court, and of every copy thereof, a statement shall be made of the persons (if any) intended to be served therewith, and if no person is intended to be served, a statement to that effect shall he made at the foot of the petition and of every copy thereof.

Two clear days between service and hearing.

Cf. E.O. 9 r. 14.

14. Unless the Court or a Judge gives leave to the contrary, there must be at least two clear days between the service and the day appointed for hearing a petition.

Affidavit of claim to purchase money paid into court.

E.O. 52 r. 18.

15. In the case of applications under any law directing the purchase money of any property sold to be paid into Court, any persons claiming to be entitled to the money so paid in must make an affidavit not only verifying their title, but also stating that they are not aware of any right in any other person, or of any claim made by any other person, to the sum claimed, or to any part thereof, or, if the petitioners are aware of any such right or claim, they must in such affidavits state or refer to and except the same.

3467/66.—4

Ο. 54 rr. 16-21; Ο. 55 r. 1

Title and form of petition, &c., for advice.

A.C.T.O. 54 r. 17.

16. All petitions, summonses, affidavits, and other written proceedings for the opinion, advice, or direction of a Judge under section 77 of the Trustee Act, 1893 of the State of South Australia, in its application to the Territory, shall be intituled in the matter of that Act, and in the matter of the particular trust, will, or administration, and every such petition or statement shall state the facts concisely, and shall be divided into paragraphs numbered consecutively.

Proceeding on summons for advice.

A.C.T.O. 54 r. 18.

17. At the time when any such summons as is mentioned in the last preceding rule is issued, the statement upon which the same is grounded shall be left at the office of the Court, and on the conclusion of the proceeding shall, with the minutes of the opinion, advice, or direction given by the Court, be transmitted by the Associate of the Judge to the office of the Master, to be there filed.

Time for service.

A.C.T.O. 54 r. 19.

18. Every such petition or summons as is mentioned in rule 16 of this Order shall be served seven clear days before the hearing thereof, unless the person served consents to a shorter time.

Opinion to be entered.

A.C.T.O. 54 r. 20.

19. The order of the Court, as is mentioned in rule 16 of this Order, shall be passed and entered and remain as of record in the same manner as any other order made by the Court or a Judge, and the same shall be termed a “Court order”.

Account by solicitor.

E.O. 52 r. 25.

20. Where the relationship of solicitor and client exists, or has existed, a summons may be issued by the client or his representatives for the delivery of a cash account, or the payment of moneys, or the delivery of securities, and the Court or a Judge may from time to time order the respondent to deliver to the applicant a list of the moneys or securities which he has in his custody or control on behalf of the applicant, or to bring into Court the whole, or any part of the same, within such time as the Court or the Judge orders. In the event of the respondent alleging that he has a claim for costs, the Court or a Judge may make such provision for the payment or security thereof, or the protection of the respondent’s lien (if any), as the Court or the Judge thinks fit.

Interim certificate.

A.C.T.O. 54 r. 22.

21. If, during the taxation of any bill of costs, or the taking of any account between solicitor and client, it appears to the taxing officer that there must in any event be moneys due from the solicitor to the client, the taxing officer may from time to time make an interim certificate as to the amount so payable by the solicitor. Upon the filing of such certificate, the Court or a Judge may order the moneys so certified to be forthwith paid to the client or brought into Court.

ORDER 55.

Certiorari: Mandamus: Prohibition: QUO Warranto: Habeas Corpus.

1. General.

Application, how made.

Vic.O. 53 r. 1.

1. Applications for writs of Certiorari, Mandamus, or Prohibition, or for leave to exhibit informations of Quo Warranto, or for relief of like nature to Mandamus or Quo Warranto, may be made to the Court or a Judge. The applications shall be, in the first instance, for an order calling

Ο. 55 rr. 2-7

on the parties interested in resisting the application to show cause why the writ should not be issued, or the information filed, or other relief given, except in the case of application by a law officer ex officio for a writ of Certiorari or leave to file an information of Quo Warranto, in which case the order shall, if asked, be absolute in the first instance:

Provided that the Court or a Judge may, in its or his discretion, in any case in which it appears necessary for the advancement of justice, grant an order absolute in the first instance for a writ of Certiorari, Mandamus, or Prohibition.

Order to be returnable before the Court.

Vic.O. 53 r. 2.

Certain orders may be served on cleric of Court of Summary Jurisdiction.

3. An order addressed to justices to show cause why a writ of Certiorari, Mandamus or Prohibition should not be issued—

may be served on the clerk of the Court of Summary Jurisdiction.

Title of affidavits.

Vic.O. 53 r. 3.

4. Affidavits intended to be used on the application shall be entitled “In the Supreme Court of the Northern Territory of Australia” without any other title.

Title of proceedings.

Vic.O. 53 r. 4

5.—(1.) The order to show cause and all subsequent proceedings shall be entitled “The Queen against” the judicial or other authority or other person to whom the writ is proposed to he directed, or against whom the information is proposed to be exhibited, “ex parte” the applicant.

(2.) In the case of a writ of Certiorari, Mandamus, or Prohibition, which is proposed to be directed to a judicial or public authority, the authority shall be described by his or their name of office. The applicant shall, in the case of an application for a writ of Mandamus or relief of like nature, or of an application for a writ of Prohibition, be called the prosecutor, and, in the case of an application for information of Quo Warrant or relief of like nature, the relator.

Order absolute

Vic.O. 53 r. 5.

6. An order absolute need not he served, but the costs of service thereof may be allowed in the discretion of the taxing officer, if the writ is not actually issued or the information is not actually exhibited.

Costs.

Vic.O. 53 r. 6.

7. When the order is made absolute, the Court or a Judge may, except as otherwise provided by these Rules, dispose of the costs of the proceedings either by the final judgment or by a separate order.

Ο. 55 rr. 8-15

2. Certiorari.

Time of notice.

Vic.O. 53 r. 7.

8. An order nisi for a writ of Certiorari to remove a judgment order or other proceedings of an inferior Court or tribunal shall not be granted unless it is made within six months after the date of judgment, order, or other proceeding, and unless it is proved upon affidavit that the applicant has given six days’ notice of the intended application to the Court, or other person or persons by or before whom the judgment, order, or other proceeding was made or taken, or to two of them if more than one.

Copy, warrant, order, &c, to foe produced on application.

Vic.O. 53 r. 7a.

9. An order nisi for a writ of Certiorari to remove any warrant, order, conviction, inquisition, or record shall not be granted unless at the time of the application a copy of the warrant, order, conviction, inquisition, or record, verified by affidavit, is produced, or its non-production accounted for to the satisfaction of the Court or a Judge.

Objections to be stated in order.

Vic.O. 53 r. 8.

10. Any mistake or omission in any judgment, order, or other proceeding, which is intended to be relied upon as a ground for quashing the judgment, order, or proceeding, shall be stated in the order nisi, otherwise an objection on account of the omission or mistake shall not be allowed.

Security for costs.

Vic.O. 53 r. 10.

11. A writ of Certiorari to remove a judgment or order of any Court or tribunal shall not be issued, except on the application of a law officer, until the applicant has given security to the satisfaction of the Master in the sum of $100, conditioned to prosecute the writ with effect at his own cost without delay, and to pay to the party in whose favour the judgment or order was given or made, in the event of its being confirmed, such costs, if any, as the Court orders him to pay.

Order to quash in first instance

Vic.O. 53 r. 11.

12.—(1.) When cause is shown against an order nisi for a writ of Certiorari to bring up a judgment or order, the Court, if it directs the writ to issue, may by the same order direct that the judgment or order shall be quashed on return without further order, and in that case no security need be given as required by the last preceding rule, and a memorandum to that effect shall be indorsed upon the writ by the officer by whom it is issued.

(2.) In any such case the judgment or order shall be quashed, upon being returned to the Court, without further order.

When no cause shown.

Vic.O. 53 r. 12.

13. When cause is not shown against an order nisi for a writ of Certiorari to bring up a judgment or order, or when the arder is absolute in the first instance, the applicant shall apply to the Court or a Judge for an order to quash the judgment or order. Such application shall be made upon notice to the parties interested in supporting the judgment or order.

Forms.

Vic.O. 53 r. 12a.

14. A writ of Certiorari shall be in accordance with Form 65 in the First Schedule.

3. Mandamus.

Prosecutor to foe named.

Vic.O. 53 r. 13.

15. An order nisi for a writ of Mandamus or for relief of a like nature shall not be granted except upon the application of some person who is interested in the relief sought, and the applicant must state by affidavit that the application is to be made at his instance as prosecutor.

O. 55 rr. 16–24

Persons to show cause.

Vic.O. 53 r. 14.

16. The Court or a Judge may direct that the order nisi shall be addressed to, and served upon, any person who, in the opinion of the Court or the Judge, ought to have notice thereof, and any person who, in the opinion of the Court or the Judge, would be affected by the issue of the peremptory writ may show cause against the order nisi, and, if he does so, shall be liable to costs as if the order had been addressed to him.

Form of writ.

Vic.O. 53 r. 15.

17. Unless otherwise ordered by the Court or a Judge, every writ of Mandamus shall command the person to whom it is addressed to do the act in question, or show cause why he has not done it, but the Court or a Judge may direct that the command shall be peremptory in the first instance. Every writ of Mandamus shall be in accordance with Form 66 in the First Schedule, and shall bear date of the day on which it is issued, and shall be tested in the name of a Judge.

Time for return of writ.

Vic.O. 53 r. 16.

18. Unless otherwise ordered by the Court or a Judge, the writ shall be returnable within the same time after service as is allowed for appearance in the case of a writ of summons.

Service.

Vic.O. 53 r. 17.

19.—(1.) When a writ of Mandamus is directed to one person only, the original writ must be personally served upon him by delivering it to him.

(2.) When the writ is directed to two or more persons, it shall be personally served upon all of them but one in the manner prescribed for personal service of a writ of summons, and shall be served upon the remaining one by delivering the original writ to him.

Service on justices or corporate bodies.

Vic.O. 53 r. 18.

20. When a writ of Mandamus is directed to a corporation, or to a company, or to public authorities, it shall be served on so many of the officers or members of the corporation or company or public authority as are competent to do the act commanded, unless by law some other mode of service is sufficient.

Return.

Vic.O. 53 r. 19.

21. The persons to whom a writ of Mandamus is directed shall, within the time allowed by the writ, file the writ, together with a certificate, written thereon or annexed thereto, and signed by them, setting forth that they have done the act commanded by the writ, or else setting forth the reason why they have not done so.

Service.

Vic.O. 53 r. 20.

22. A copy of the return shall be served upon the prosecutor on the same day as it is filed.

Pleading to return.

Vic.O. 53 r. 21.

23. If the return does not certify that the act commanded has been done, the same proceedings shall be had and taken, and within the same time, as if the return were a defence in an action in which the prosecutor was the plaintiff and the person to whom the writ is directed was the defendant, and had pleaded this return as his defence.

Peremptory writ.

Vic.O. 53 r. 22.

24. If the question of fact and law, if any, raised by the return is determined in favour of the prosecutor by judgment of the Court or otherwise, the prosecutor shall be entitled to a peremptory writ of Mandamus, commanding the persons to whom the first writ was directed to do the act therein commanded, and such writ shall be awarded by the judgment, if any, or, if there is no judgment, by a separate order.

O. 55 rr. 25-32

Costs when peremptory writ awarded in the first instance or on obedience.

Vic.O. 53 r. 23.

25.—(1.) When a peremptory writ is awarded in the first instance, the Court or a Judge shall, at the time of granting the writ, direct by and to whom the costs of the proceedings shall be paid.

(2.) When a peremptory writ is not awarded in the first instance, and the return to the writ certifies that the person to whom it is addressed has done the act commanded by the writ, an application for an order for the costs of the proceedings may be made at any time after the return is filed, not being later than the fourth day of the sittings of the Court held next after the day on which the return is filed.

Proceedings in nature of interpleader.

Vic.O. 53 r. 24.

26. When upon an application for a writ of Mandamus it appears that some person other than the prosecutor claims that the person to whom it is proposed to direct the writ shall do some act inconsistent with the act which the prosecutor claims to have done, the person to whom the order nisi or writ is directed may apply to the Court or a Judge for an order that the last-named person be substituted for him in all subsequent proceedings up to the issue of a peremptory writ of Mandamus, and the Court or a Judge may make such order on the application as is just.

Time.

Vic.O. 53 r. 25.

27. An application for a writ of Mandamus, or an order in the nature of a Mandamus, to a judicial tribunal to enter a minute of adjournment and hear a matter, shall be made within two months of the date of the refusal to hear, or within such further time as is, under special circumstances, allowed by the Court or a Judge.

Mandamus by order.

Vic.O. 53 r. 26.

28. In any case in which the Court directs the issue of a peremptory writ of Mandamus, the command may be expressed in an order of the Court without the issue of a writ, which order shall have the same effect as a peremptory writ of Mandamus.

No action against party obeying writ or order.

Vic.O. 53 r. 26A.

29. No action or proceeding shall be commenced or prosecuted against any person in respect of anything done in obedience to a writ of Mandamus or an order of the Court for relief of the like nature issued by the Court or a Judge.

4. Prohibition.

Pleadings in Prohibition.

Vic.O. 53 r. 27.

30. The Court or a Judge may in any case, instead of directing the issue of a writ of Prohibition, direct the prosecutor to deliver to the opposite party a statement of claim setting forth the facts upon which his claim to the writ is founded, and thereupon the same proceedings shall be had and taken in all respects as in an action.

Proceedings on judgment.

Vic.O. 53 r. 28.

31. If judgment is given for the prosecutor, the judgment shall include a direction that a writ of Prohibition shall issue.

Writ of Procedendo.

Vic.O. 53 r. 29.

32. When a writ of Prohibition has been issued, and it is afterwards made to appear to the Court or a Judge that relief ought to be given against the judgment or order by which the writ was awarded on any ground on which relief might be given against a judgment in an action, the Court or the Judge may direct that a writ, called a writ of Procedendo, shall be issued commanding the judicial tribunal to which the writ of Prohibition was issued to proceed to hear or determine the matter in question or otherwise proceed therein as if the writ of Prohibition had not been issued.

O. 55 rr. 33-41

Prohibition by order.

Vic.O. 53 r. 30.

33. The Prohibition may be expressed in an order of the Court without : the issue of a writ, which order shall have the same effect as a writ of . Prohibition. A writ of Prohibition shall be in accordance with Form 67 in the First Schedule.

5. Quo Warranto.

Relator to be named.

Vic.O. 53 r. 31.

34. Upon an application for an order for leave to exhibit an information of Quo Warranto, or for relief of a like nature, the applicant shall state by affidavit that the application is to be made at his instance as relator. The Court or a Judge may allow a new relator to be substituted for the original relator, on such terms as to costs or otherwise as are just.

Objections to be stated in order nisi.

Vic.O. 53 r. 32.

35. Every objection intended to be made to the title of the defendant or person called on to show cause shall be stated in the order nisi, and no objection not so stated shall be raised on the return of the order nisi, or in the information, without the leave of the Court or a Judge.

Security for costs.

Vic.O. 53 r. 33.

36. An information shall not, without the leave of the Court or a Judge, be filed until the applicant has given security in the sum of $100 conditioned to file the information and prosecute the same with effect, and to pay to the defendant such costs, if any, as the Court or a Judge orders.

Form of information.

Vic.O. 53 r. 34.

37. The information shall set forth the facts relied on by the relator as invalidating the title of the defendant to the office in question in the same manner as in a statement of claim.

Signature of service of information.

Vic.O. 53 r. 35.

38. The information shall be in the name of the Attorney-General or the relator, as the case may be, on behalf of Her Majesty, and shall be signed by the Attorney-General or relator. A copy of the information shall be served upon the defendant, or, if at the return of the order nisi he appeared by solicitor, then upon his solicitor.

Defence and subsequent proceedings.

Vic.O. 53 r. 36.

39. The defendant shall plead to the information within the same time and in the same manner as if the information were a statement of claim in an action, and thereupon the same proceedings shall be taken in all respects as if the proceeding by information were an action in which the relator was plaintiff and the defendant was defendant.

Judgment costs.

Vic.O. 53 r. 37.

40. If judgment is given for the Crown the judgment shall award that the defendant be ousted from the office usurped by him.

Disclaimer.

Vic.O. 53 r. 38.

41. The defendant may, if he thinks fit, disclaim the office in question. Such disclaimer shall be signed by the defendant and attested by a person authorized under Order 40 to take an affidavit, and shall be filed, and a copy thereof shall be served on the relator within the time allowed for delivering a defence. The relator shall thereupon, unless the Court or a Judge otherwise orders, be entitled to enter judgment of ouster with costs, including the costs of the order giving leave to exhibit the information.

O. 55 rr. 42-46

Consolidation.

Vic.O. 53 r. 39.

42. When proceedings by information of Quo Warranto, or for relief of a like nature, are pending against several persons for usurpation of offices of the same nature, and upon the same grounds of objection, the Court or a Judge may direct the proceedings to be consolidated, as in the case of actions, and for that purpose may make such orders as are just, but an order for consolidation or stay of proceedings against any defendant shall not be made upon the application of a defendant unless he undertakes to enter a disclaimer in the event of judgment being given for the relator in the proceeding which is not stayed.

7. Habeas Corpus.

How applied for.

Vic.O. 53 r. 40.

43. Applications for writs of Habeas Corpus, or for orders for the production of persons in confinement for the purpose of examination or trial, may be made to the Court or a Judge ex parte. The affidavits upon which the application is made shall be entitled “In the Supreme Court of the Northern Territory of Australia” without other title, except in the case of applications for orders for the production of persons for examination as witnesses in causes or matters pending in the Court, in which case they shall also be entitled in the cause or matter.

How granted.

Vic.O. 53 r. 41.

44. The Court or a Judge may make an order absolute in the first instance for the issue of the writ or production of the person, or may make an order calling upon the person who would be required to obey the writ or order, if granted, to show cause why it should not be issued or made. The order and all subsequent proceedings shall be entitled “The Queen against” the person to whom the writ or order is directed, except in the case of orders for the production of persons as witnesses, which shall be entitled in the cause or matter.

Service.

Vic.O. 53 r. 42.

45. Writs of Habeas Corpus, and orders for production directed to persons charged by law with the custody of persons in lawful custody or confinement, may be served either personally, or by leaving the original with a servant or officer of the person to whom the writ or order is directed at the place where the person in question is confined or detained. Other writs of Habeas Corpus shall be served personally unless an order for substituted service is made as provided for by Order 11. When a writ of Habeas Corpus is directed to more persons than one, it shall be served in the same manner as a writ of Mandamus directed to several persons. Together with the writ there shall be served a notice, directed to the person to whom the writ is addressed, specifying the acts to be done by him in obedience to the writ, and pointing out the consequences of making default.

Return to writs of Habeas Corpus.

Vic.O.. 53 r. 43.

46. The person to whom a writ of Habeas Corpus is directed shall, at the time and place specified therein, make his return to the writ, which shall be indorsed upon or attached to the writ, and shall set out all the causes of the detention of the person named in the writ. The return shall be filed.

O. 55 rr. 47-49; O. 56 rr. 1-7

Amendment of return.

Vic.O. 53 r. 44.

47. The return may be amended by leave of the Court or a Judge.

Proceedings on return.

Vic.O. 53 r. 45.

48. Upon the return of the writ the return shall be read, and a motion shall then be made for the disposition of the person therein named, or for amending or questioning the return.

Discharging without writ.

Vic.O. 53 r. 46.

49. When an order to show cause has been made, the Court or a Judge may, on the return of the order, direct the discharge or other disposition of the person in question without the issue of a writ of Habeas Corpus, and any such order shall be as effectual as if it had been made on the return of a writ.

ORDER 56.

Applications and Proceedings at Chambers.

Summons.

E.O. 54 r. 1.

1. Every application at Chambers not made ex parte shall be made by summons.

Forms of originating summons.

A.C.T.O. 56 r. 2.

2. An originating summons shall be in accordance with Form 68 in the First Schedule, or with such other form as is applicable in the circumstances. It shall be prepared by the applicant or his solicitor, and shall be sealed, and when so sealed shall be deemed to be issued. The person obtaining the summons shall file a copy thereof.

Time for attendance.

A.C.T.O. 56 r. 3.

3. The day and hour for attendance under an originating summons need not be inserted therein and, if it is not so inserted, notice of such day and hour shall be served with the summons, or separately from the summons, but in such manner and within such time as the summons is required to be served.

Appearances to be entered.

A.C.T.O. 56 r. 4.

4.  The parties served with an originating summons shall, before they are heard in Chambers, enter appearances in the office of the Master and give notice thereof.

Time for service of original summons.

A.C.T.O. 56 r. 5.

5. An originating summons, where service is necessary, shall, unless otherwise directed by a Judge, be served seven clear days before the return thereof.

Time of servies of summons.

E.O. 54 r. 4e.

6. Every summons, other than an orginating summons, shall be served within a reasonable time before the return thereof, and in no case later than two o’clock in the afternoon of the day before the hearing thereof, or, if served on Saturday, not later than twelve o’clock noon.

Proceeding ex parte in case of party summoned failing to attend.

E.O. 54 r. 5.

7. Where any of the parties to a summons fails to attend, whether upon the return of the summons, or at any time appointed for the consideration or further consideration of the matter, a Judge may proceed ex parte, if, considering the nature of the case, he thinks it expedient so to do. No affidavit of non-attendance shall be required or allowed, but a Judge may require such evidence of service as he thinks just.

O. 56 rr. 8-15; O. 57 r. 1

Reconsideration of ex parte proceedings.

E.O. 54 r. 6.

8. Where a Judge has proceeded ex parte, such proceedings shall not in any manner be reconsidered in a Judge’s Chambers, unless the Judge is satisfied that the party failing to attend was not guilty of wilful delay or negligence, and in such case the costs occasioned by his non-attendance shall be in the discretion of the Judge, who may fix the same at the time and direct them to be paid by the party or his solicitor before he is permitted to have such proceeding reconsidered, or make such other order as to such costs as he thinks just.

Non-attendance. Costs.

A.C.T.O. 56 r. 9.

9. Where a proceeding in Chambers fails by reason of the non-attendance of any party, and the Judge does not think it expedient to proceed ex parte, the Judge may order such an amount of costs (if any) as he thinks reasonable to be paid to the party attending by the absent party or by his solicitor personally.

Further attendance on summons.

E.O. 54 r. 8.

10. Where matters in respect of which a summons has been issued are not disposed of upon the return of the summons, the parties shall attend from time to time without further summons, at such time or times as are appointed for the consideration or further consideration of the matter.

Summons may include all matters.

E.O. 54 r. 9.

Adjournment from and into Court.

11. In every cause or matter, where any party thereto makes any application at Chambers, either by way of summons or otherwise, he may include in one and the same application all matters upon which he then desires the order or directions of the Court or a Judge, and upon the hearing of such application the Court or a Judge may make any order and give any directions relative to or consequential on the matter of such application as is just, and any such application may, if the Judge thinks fit, be adjourned from Chambers into Court, or from Court into Chambers.

Forms of summons.

E.O. 54 r. 10.

12. A summons other than an originating summons shall be in accordance with Form 69 in the First Schedule, or with such other form as is applicable in the circumstances, and shall be addressed to all the persons on whom it is to be served.

Issue of summons.

Cf. E.O. 54 r. 11.

13. In all cases of applications originating in Chambers, a summons shall be prepared by the applicant or his solicitor, and, when signed, shall be deemed to be issued. The person obtaining a summons shall file a copy thereof.

Hour of return.

Cf. Vic.O. 54 r. 12.

14. Summonses shall be returnable at such time as is fixed by the Judge or Master.

Form of order.

Cf. Vic.O. 54 r. 13.

15. An order shall be in accordance with Form 70 in the First Schedule, or with such other form as is applicable in the circumstances, and shall be prepared by the party entitled to the order, and be signed by a Judge.

ORDER 57.

Declaration on Originating Summons.

Power to make declarations on summons.

A.C.T.O. 57 r. 1.

1. Any person claiming to be interested under a deed, will or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument, and for the declaration of the rights of the persons interested.

O. 57 rr. 2-5; O. 58 r. 1

Construction of Act, State Act, Ordinance or regulation.

Vic.O. 54a. r. 2.

2. Where any person claims any legal or equitable right, and the determination of the question whether he is entitled to that right depends upon a question of construction of any Act, State Act, Ordinance or regulation in force in the Territory, that person may apply by originating summons for the determination of that question and for a declaration as to the right claimed.

Service.

A.C.T.O. 57 r. 3.

3. The Court or a Judge may direct such persons to be served with the summons as it or he thinks fit.

Evidence.

A.C.T.O. 57 r. 4.