{"id":"C2004L02373","name":"High Court Rules 1952","slug":"high-court-rules-1952","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"repealed","isInForce":false,"actNumber":"23 of 1952","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":26548,"registerId":"commonwealth-C2004L02373-current","compilationNumber":null,"startDate":"2026-04-01","status":"Repealed","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"7","sectionType":"section","heading":"Commencement of proceedings","content":"7 Commencement of proceedings\n\n","sortOrder":0},{"sectionNumber":"8","sectionType":"section","heading":"Title of proceedings","content":"8 Title of proceedings\n\nOrder 2 Writs of summons\n\n1 Endorsement of claim\n\n2 Costs of prolix writs\n\n3 Form of writ\n\n4 Leave to issue out of Commonwealth\n\n5 Form of writ for service out of the Commonwealth\n\n6 Admiralty action\n\n7 Dating and testing of writs\n\nOrder 3 Endorsement of claim\n\n1 Endorsement under Order 2, rule 1\n\n2 Forms of endorsement\n\n3 Endorsement to show representative capacity\n\n4 Endorsement where the claim is liquidated\n\n5 Ordinary account\n\n6 Libel\n\nOrder 4 Endorsement of address\n\n1 Where plaintiff sues by solicitor\n\n2 Where plaintiff sues in person\n\n3 Address for service\n\n4 Where notice is served in lieu of writ\n\n5 Matters not commenced by writ\n\nOrder 5 Issue of, and appearances to, writs of summons and originating processes\n\nI Place of issue\n\n","sortOrder":1},{"sectionNumber":"1","sectionType":"section","heading":"Writs etc may be issued out of any Registry","content":"1 Writs etc may be issued out of any Registry\n\n","sortOrder":2},{"sectionNumber":"2","sectionType":"section","heading":"Endorsement as to appearance on writs etc issued out of Principal Registry","content":"2 Endorsement as to appearance on writs etc issued out of Principal Registry\n\nII General\n\n4 Preparing and printing writs\n\n5 Signing etc by proper officer\n\n6 Copy of writ etc to be left with proper officer\n\n7 Filing and marking of copy of writ etc\n\nIII Admiralty actions\n\n8 Admiralty, arrest warrant after affidavit\n\n","sortOrder":3},{"sectionNumber":"9","sectionType":"section","heading":"Special circumstances","content":"9 Special circumstances\n\nIV Time for appearance\n\n","sortOrder":4},{"sectionNumber":"10","sectionType":"section","heading":"Time for appearance to be limited by writ","content":"10 Time for appearance to be limited by writ\n\nV Actions on relation\n\n","sortOrder":5},{"sectionNumber":"11","sectionType":"section","heading":"Actions by Attorney-General on relation","content":"11 Actions by Attorney-General on relation\n\nOrder 6 Concurrent writs\n\n1 Concurrent writs, how issued etc\n\n2 Period during which concurrent writ in force\n\n3 Concurrent writs for service within, and outside, the Commonwealth\n\n4 Concurrent originating process\n\nOrder 7 Disclosure by solicitors and plaintiffs, and change of solicitor\n\n1 Where name of solicitor endorsed on writ\n\n2 Change of solicitor\n\n3 Notice of appointment of solicitor\n\n4 Notice of intention to act in person\n\n5 Power to act through new solicitor\n\n6 Removal of solicitor from the record at the instance of another party\n\n7 Withdrawal of solicitor who has ceased to act for a party\n\n8 Solicitor not to act for adverse parties\n\nOrder 8 Renewal of writs\n\n1 Original writ in force for 12 months\n\n2 Evidence of renewal\n\n3 Lost writ\n\nOrder 9 Service of writs of summons\n\nI Mode of service\n\n1 Undertaking to accept service\n\n2 When service required, how effected\n\n3 Substituted service\n\nII On particular defendants\n\n","sortOrder":6},{"sectionNumber":"4","sectionType":"section","heading":"Infant","content":"4 Infant\n\n","sortOrder":7},{"sectionNumber":"5","sectionType":"section","heading":"Persons of unsound mind","content":"5 Persons of unsound mind\n\nIII On corporations and agents\n\n","sortOrder":8},{"sectionNumber":"6","sectionType":"section","heading":"Service on corporations etc","content":"6 Service on corporations etc\n\n7 Service on agent\n\nIV In particular actions\n\n8 Service in action for recovery of land\n\n9 Admiralty actions in rem\n\n10 Service of warrant of arrest\n\n11 Service of writ or warrant, how effected\n\n12 When cargo landed\n\n13 Where no access to cargo\n\n14 Proceeds in Court\n\nV Generally\n\n","sortOrder":9},{"sectionNumber":"15","sectionType":"section","heading":"Endorsement after service","content":"15 Endorsement after service\n\nOrder 10 Service outside the Commonwealth\n\n1 In certain cases service of writ etc allowed outside Commonwealth\n\n2 Agreement as to jurisdiction and mode of service\n\n3 Application to be supported by evidence\n\n4 Order to fix time for appearance\n\n5 Notice of writ\n\n6 Service of notice of writ\n\n7 Service abroad by letter of request\n\n8 Other originating processes\n\n9 Service of Australian documents in Convention countries\n\n10 Validity of other service\n\n11 Air mail\n\n12 British subjects residing outside the Commonwealth\n\n13 Actions under Civil Aviation (Carriers’ Liability) Act 1959\n\n14 Power of Court to cause persons to be informed\n\nOrder 11 Appearance\n\n1 Appearance in Registry\n\n2 Where defendant does not reside etc in district\n\n3 Mode of entering appearance; memorandum and duplicate\n\n4 Conditional appearance\n\n5 Motion to set aside writ\n\n6 Notice of entry to plaintiff\n\n7 Entry by defendant entitled to enter at Principal Registry\n\n8 Defendant’s address for service\n\n9 Defendant in person\n\n10 Address for service\n\n11 Memorandum irregular, address fictitious\n\n12 Form of memorandum of appearance\n\n13 Officer to enter memorandum\n\n14 Appearance at Principal Registry to be notified to District Registry\n\n15 Defendants appearing by same solicitor\n\n16 Solicitor not entering appearance\n\n17 Bail bond in Admiralty actions\n\n18 Time for filing bond\n\n19 Commissioner in certain cases not to take bail\n\n20 Commission recoverable on taxation\n\n21 Time for appearance\n\n22 Admiralty intervention\n\n23 Recovery of land\n\n24 Landlord appearing\n\n25 Recovery of land, person not named defendant\n\n26 Recovery of land, limiting defence\n\nOrder 12 Default of appearance\n\n1 Default of appearance by infant or person of unsound mind; notice of application\n\n2 Default of appearance generally\n\n3 Liquidated demand endorsed\n\n4 Liquidated demand; several defendants\n\n5 Detention of goods\n\n6 Detention of goods; several defendants\n\n7 Detention of goods, damages and liquidated demand; final and interlocutory judgment\n\n8 Recovery of land\n\n9 Other claims\n\n10 Plaintiff not proceeding — judgment for costs\n\n11 Setting aside judgment\n\n12 Action in District Registry; time for entering judgment\n\n13 Default of appearance in cases not otherwise specially provided for\n\n14 Default in Admiralty action\n\n15 Default in Admiralty action\n\n16 Default of appearance to originating summons\n\n17 Judgment against one not to prejudice right against other defendant\n\nOrder 13 Summary relief\n\n1 Special endorsement\n\n2 Judgment on writ specially endorsed under O. III r. 4\n\n3 Application by summons\n\n4 Defendant may show cause\n\n5 Examination of witnesses\n\n6 Judgment for part of claim\n\n7 Where one defendant has good defence, but other not\n\n9 Summary disposal\n\n10 Assessment of damages\n\n11 Directions as to trial\n\n12 Relief from forfeiture\n\n13 Fresh application\n\nOrder 14 Summary judgment for specific performance\n\n1 Judgment on writ for specific performance\n\n2 Application by summons\n\n3 Defendant may show cause\n\n4 Examination of witnesses\n\n5 Leave to defend\n\n6 Directions as to trial\n\n7 Summary disposal\n\nOrder 15 Application for an account\n\n1 Order for account\n\n2 Application, how made\n\n3 Judgment without pleadings\n\n4 Evidence\n\n5 Action may be directed to proceed in usual course\n\nOrder 16 Parties\n\nI Generally\n\n1 Persons claiming jointly, severally or in the alternative may be plaintiffs\n\n2 No other proceeding to be brought for same claim\n\n3 Proceeding in name of wrong plaintiff\n\n4 Misjoinder and non-joinder\n\n5 Consent of plaintiff or next friend\n\n6 Counterclaim — misjoinder\n\n7 All persons may be joined as defendants\n\n8 Defendant need not be interested in all the relief\n\n9 Joinder of persons severally, or jointly and severally liable\n\n10 Plaintiff in doubt as to person from whom redress is to be sought\n\n11 Trustees, executors etc may sue and be sued in respect of estate\n\n12 Numerous persons\n\n13 Power to approve compromise\n\n14 Application to add or strike out\n\n15 Where defendant added\n\n16 Actions under Act and Convention\n\n17 Initial letters may be used\n\nII Persons under disability\n\n18 Proceedings by infants\n\n19 Persons of unsound mind\n\n20 Appearance by infant\n\n21 Guardian ad litem\n\n22 Other cases\n\n23 Next friend or relator\n\n24 Consent of persons under disability to procedure\n\n25 Removal and appointment of next friend or guardian ad litem\n\nIII Proceedings by and against poor persons\n\n26 Suing or defending as poor person\n\n27 Disqualification\n\n28 Case before counsel\n\n29 Affidavit in support of application\n\n30 No Court fees payable\n\n31 Order to be filed\n\n32 Memorandum of filing\n\n33 Assignment of counsel or solicitor\n\n34 Prohibition of fees\n\n35 Revoking order\n\n36 Settlement etc and discharge of solicitor\n\n37 Alteration in means of poor person\n\n38 Solicitor to sign notices etc\n\n39 Failure to proceed\n\n40 Costs — poor persons\n\n41 Liability of poor person for costs\n\n42 Costs where order obtained by fraud\n\n43 Costs to solicitor from proceeds of action\n\nIV Administration and execution of trusts\n\n44 Appointment of person to represent next of kin or a class\n\n45 Residuary legatee and next of kin\n\n46 Person interested in proceeds of realty\n\n47 Residuary devisee or next of kin\n\n48 Cestuis que trust\n\n49 Waste\n\n50 Executor, administrator or trustee\n\n51 Notice of judgment to be served on certain persons and its effect\n\n52 Order for liberty to attend not necessary, but appearance to be entered\n\n53 Memorandum of service to be entered in the Registry\n\n54 Form of memorandum\n\n55 Service of notice of judgment on infants etc\n\n56 Court may appoint or dispense with legal personal representative\n\n57 Administration — appearance at chambers in respect of creditor’s claims\n\nOrder 17 Third party procedure\n\n1 Third party procedure\n\n2 Form and issue of notice\n\n3 Effect of notice\n\n4 Appearance\n\n5 Default by third party\n\n6 Where judgment by default against defendant\n\n7 Third party directions\n\n9 At trial\n\n10 Costs\n\n11 Fourth and subsequent parties\n\n12 Co-defendants\n\n13 Counterclaim\n\nOrder 18 Change of parties by death etc\n\n1 Proceeding not abated where cause of action continued\n\n2 Order to carry on proceeding\n\n3 Service of order to continue proceeding\n\n4 Application to discharge order by person under no disability or having a guardian\n\n5 By person under disability having no guardian\n\n6 Death of sole plaintiff or defendant\n\n7 Solicitor of plaintiff to give notice of abatement\n\n8 Abated proceeding to be struck out\n\nOrder 19 Joinder of causes of action\n\n1 All causes of action may be joined\n\n2 Claims of trustees in bankruptcy etc\n\n3 Husband and wife\n\n4 Executor and administrator\n\n5 Claims by joint plaintiffs\n\n6 Remedy for misjoinder\n\n7 Order for exclusion\n\nOrder 20 Pleading generally\n\n1 Pleadings in High Court\n\n2 Delivery of pleadings — costs of prolix pleadings\n\n3 Set-off and counterclaim\n\n4 Pleading to state material facts and not evidence\n\n5 Particulars to be given where necessary\n\n6 Further and better statement or particulars\n\n7 Letter for particulars\n\n8 Particulars before defence\n\n9 Order for particulars when a stay\n\n10 Printing etc of pleadings\n\n11 Delivery of pleadings\n\n12 Marking pleadings\n\n13 “Not guilty by statute” abolished\n\n14 Specific denial\n\n15 Condition precedent\n\n16 What must be specially pleaded\n\n17 Departure\n\n18 Denial to be specific\n\n19 Joinder of issue\n\n20 Evasive denial\n\n21 Denial of contract\n\n22 Effect of documents to be stated\n\n23 Malice, knowledge, condition of mind etc\n\n24 Rolled-up plea\n\n25 Notice\n\n26 Implied contract or relation\n\n27 Presumptions of law\n\n28 Actions for trespass\n\n29 Striking out pleadings\n\n30 Preliminary Act\n\nOrder 21 Statement of claim\n\n1 Statement of claim\n\n2 Allegation of jurisdiction\n\n3 Claim beyond endorsement\n\n4 Relief to be specifically stated\n\n5 Relief founded on separate grounds\n\n6 Stated or settled account\n\nOrder 22 Defence and counterclaim\n\n1 Mere denial insufficient\n\n2 Defences to actions on bills etc\n\n3 Defences to actions under Order 13, r. 1 (1) (a) and (b)\n\n4 Pleading to damage\n\n5 Persons in representative capacity\n\n6 Time for delivery of defence\n\n7 Where leave to defend given under Order 13 or 14\n\n8 Proper admissions not made\n\n9 Allowable counterclaim\n\n10 Title on counterclaim\n\n11 Counterclaim against person not party\n\n12 Appearance by added parties\n\n13 Reply to counterclaim\n\n14 Exclusion of counterclaim\n\n15 Discontinuance\n\n16 Judgment for balance\n\n17 Plea in abatement\n\n18 Plea of possession\n\nOrder 23 Payment into and out of court and tender\n\n1 Payment into Court\n\n2 Plaintiff may take out money\n\n3 Money remaining in Court\n\n4 Several defendants\n\n5 Counterclaim\n\n6 Non-disclosure of payment into Court\n\n7 Payment into Court under certificate\n\n8 Money paid into Court under order\n\n9 Notice of payment in\n\n10 Duty\n\n11 Money recovered by or paid into account for infant or person of unsound mind\n\nOrder 24 Reply\n\n1 Time for reply\n\n2 Reply to counterclaim\n\n3 Subsequent pleadings — time for pleading after reply\n\n4 New assignment\n\nOrder 25 Matters arising pending the action\n\n1 New grounds of defence arising\n\n2 Further defence or reply\n\n3 Confession of defence\n\nOrder 26 Demurrer and objections to pleadings\n\n1 Demurrer\n\n2 Demurrer to state whether the whole or part — frivolous demurrer may be set aside with costs\n\n3 Delivery\n\n4 Demurrer and pleading in one document\n\n5 Leave to plead and demur together not necessary\n\n6 Demurrer to claim founded on document\n\n7 Demurrer not entered for argument to be held sufficient\n\n8 Form of setting down for argument\n\n9 When demurrer required to be heard before Full Court\n\n10 Copy pleadings for Justices\n\n11 Amendment pending demurrer\n\n12 Costs\n\n13 Effect of decision on demurrer going to whole action\n\n14 Where demurrer allowed to part of a pleading, that part is to be deemed to be struck out\n\n15 Demurrer overruled with leave to plead\n\n16 Points of law may be raised by pleadings\n\n17 Dismissal of action\n\n18 Striking out pleading where no reasonable cause of action disclosed\n\n19 Declaratory judgment\n\nOrder 27 Discontinuance\n\n1 Discontinuance by a party\n\n2 Withdrawal by consent\n\n3 Entering judgment on discontinuance\n\nOrder 28 Default in pleading\n\n1 Default of plaintiff in delivering statement of claim\n\n2 Claim for debt or liquidated demand\n\n3 Several defendants, default of one\n\n4 Damages — detention of goods\n\n5 Default of one or more defendants\n\n6 Debt or damages and detention of goods or damages\n\n7 Recovery of land\n\n8 Claims joined with claim for recovery of land\n\n9 Where a defence is delivered to part of claim only\n\n10 Admiralty actions in rem\n\n11 Defendant in default\n\n12 One of several defendants default\n\n13 Close of pleadings on default\n\n14 Default of third party\n\n15 Setting aside judgment by default\n\n16 Effect of judgment by default\n\n17 Counterclaims\n\nOrder 29 Amendment\n\n1 Amendment of endorsement\n\n2 When plaintiff may amend without leave\n\n3 By defendant\n\n4 Disallowance of amendment, application for, within 14 days\n\n5 Pleading to amendment\n\n6 Other cases\n\n7 Failure to amend under order\n\n8 How amendments made\n\n9 Date of order and date of amendment to be marked\n\n10 Delivery of amended document\n\n11 Clerical mistakes and accidental omissions\n\n12 General power to amend\n\n13 Costs\n\nOrder 30 Caveats and releases in admiralty actions\n\n1 Caveat against warrant to arrest\n\n2 Caveat Warrant Book\n\n3 Search for caveat before issue of arrest warrant in District Registry\n\n4 Writ to be served on party entering caveat\n\n5 Security to be given within 3 days\n\n6 If security not given, action may proceed as on default\n\n7 Judgment may be enforced by attachment and warrant\n\n8 Release\n\n9 Caveat against release\n\n10 Payment into Court\n\n11 Release of cargo arrested for freight only\n\n12 In salvage actions\n\n13 On giving security\n\n14 On consent or discontinuance or dismissal of action\n\n15 Release to be left with Marshal\n\n16 Registrar may require Justice’s order\n\n17 Liability for delaying release\n\n18 Arrest notwithstanding caveat\n\n19 Caveat Payment Book\n\n20 Caveat against payment out of Court\n\n21 Liability for delaying payment\n\n22 Address of caveator\n\n23 Withdrawal of caveats\n\n24 Caveats may be overruled\n\n25 Caveat in Admiralty actions in force for 6 months\n\nOrder 31 Summons for directions and consolidation\n\n1 Summons for directions\n\n2 Interlocutory proceedings\n\n3 No affidavit to be used without leave\n\n4 Parties to apply for directions\n\n5 Subsequent applications\n\n6 Costs of subsequent applications\n\n7 Consolidation of proceedings\n\nOrder 32 Discovery and inspection\n\n1 Discovery by interrogatories\n\n2 Further interrogatories by leave\n\n3 Copy to be filed\n\n4 Interrogatories to corporation or body politic\n\n5 Applications to set aside\n\n6 Affidavit in answer, filing\n\n7 Objections to interrogatories by answer\n\n8 Order to answer or answer further\n\n9 Application for discovery of documents\n\n10 Affidavit of discovery\n\n11 Affidavit of documents\n\n12 Production of documents\n\n13 Neglect to make discovery\n\n14 Inspection of documents referred to in pleadings or affidavits\n\n15 Time for inspection when notice given under rule 14; bank and trade books\n\n16 Order for inspection\n\n17 Verified copies\n\n18 Power to order discovery of particular document or class of documents\n\n19 Premature discovery\n\n20 Non-compliance with order for discovery or inspection\n\n21 Service on solicitor of order for discovery\n\n22 Attachment of solicitor\n\n23 Using answer to interrogatories at trial\n\n24 Discovery against Marshal\n\n25 Order to apply to infants\n\nOrder 33 Admissions and notices to produce\n\n1 Notice of admission of facts\n\n2 Notice to admit documents\n\n3 Notice to admit facts\n\n4 Judgment or order upon admissions of facts\n\n5 Affidavit of signature to admissions\n\n6 Service of notice to produce documents\n\n7 Costs of notice where documents unnecessary\n\nOrder 34 Issues, inquiries and accounts\n\n1 Issues may be prepared and settled\n\n2 lnquiries and accounts, when directed\n\n3 Special direction as to mode of taking account\n\n4 Accounts to be verified by affidavit and items numbered\n\n5 Mode of vouching accounts\n\n6 Surcharge\n\n7 lnquiry as to outstanding personal estate\n\n8 Accounts and inquiries to be numbered\n\n9 Just allowances\n\n10 Registrar to report delay\n\n11 Expediting proceedings in case of undue delay\n\nOrder 35 Questions of law and issues of fact without pleadings\n\nI Special case\n\n1 Special case by consent\n\n2 Special case by order before trial\n\n3 Special case to be prepared etc\n\n4 Leave to set down where person under disability is a party\n\n5 Form of entry for argument\n\n6 Notice of entry\n\n7 Agreement as to payment of money and costs\n\n8 Special case heard by Full Court in first instance\n\nII Issues of fact without pleadings\n\n9 Trial of questions of fact agreed upon\n\n10 Order for payment of sum of money\n\n11 Entry of judgment upon the finding\n\nOrder 36 Trial\n\nI Place\n\n1 Place of trial or hearing\n\n2 Revoking or varying directions as to trial or hearing\n\nII Mode of trial\n\n3 Mode of trial\n\n4 Party seeking trial by jury\n\n5 Court may direct trial with jury at any time\n\n6 Questions of fact may be tried differently, one before the other\n\n7 Number of Justices\n\nIII Notice of and entry for trial\n\n8 Notice of trial by plaintiff\n\n9 Notice of trial by defendant — motion to dismiss for want of prosecution\n\n10 Form of notice of trial\n\n11 Length of notice\n\n12 Entry of cause for trial\n\n13 Avoidance of notice of trial\n\n14 Notice of trial\n\n15 Countermanding notice\n\n16 Entry for trial by party served with notice\n\n17 Entry by Registrar in list\n\n18 Time for entry before commencement of sittings\n\n19 Setting down of causes on further consideration\n\n20 Withdrawal of trial after entering\n\n21 Order of trial\n\nIV Papers for Justice\n\n","sortOrder":10},{"sectionNumber":"22","sectionType":"section","heading":"Copies of pleadings etc to be delivered","content":"22 Copies of pleadings etc to be delivered\n\nV Proceedings at hearing or trial\n\n23 Default of appearance by defendant at trial\n\n24 Default of appearance by plaintiff\n\n25 Default of appearance by both parties\n\n26 Judgment by default may be set aside on terms\n\n27 Adjournment of trial\n\n28 Solicitor through whose default trial is delayed may be ordered to pay costs\n\n29 Evidence in mitigation of damages in action for libel or slander\n\n30 Disallowance of vexatious question in cross‑examination\n\n31 Judgment to be entered at or after trial\n\n32 No non-suit\n\n33 Times of commencement and termination of trial\n\n34 Entry of findings of fact on trial\n\n35 Certificate for entry of judgment\n\nVI Writ of inquiry and reference as to damages\n\n36 Application of Rules\n\n37 Writ of trial and inquiry abolished\n\n38 Ascertainment of damages where a matter of calculation\n\n39 Damages in respect of continuing cause of action\n\nOrder 37 Evidence\n\nI Office copies\n\n1 Obtaining office copies\n\n2 Office copies admissible in evidence\n\nII Examination of witnesses upon commission etc\n\n3 Court or Justice may order depositions to be taken\n\n4 Letters of request\n\n5 Examination of witnesses abroad\n\n6 Form of order for examination of witnesses abroad\n\n7 Order for attendance of person to produce\n\n8 Disobedience to order for attendance\n\n9 Expenses of person ordered to attend\n\n10 Examiner to have copy of writ and pleadings\n\n11 Examination, how taken\n\n12 Depositions to be taken down in writing, read over to and signed by witness, or if he refuses, by the examiner\n\n13 Refusal of witness to attend or to be sworn\n\n14 Objection by witness to questions\n\n15 Depositions to be transmitted to Registry\n\n16 Special report by examiner\n\n17 Depositions not to be given in evidence without consent or by leave of Justice\n\n18 Oaths\n\n19 Attendance of witness under subpoena for examination or to produce\n\n20 Evidence taken after trial\n\n21 Practice as to taking evidence at any stage\n\n22 Special directions as to taking evidence\n\n23 Evidence in proceedings subsequent to trial\n\nIII Subpoena\n\n24 Form of praecipe for a subpoena\n\n25 Form of writ of subpoena\n\n26 Subpoenas in District Registry\n\n27 Subpoena for attendance of witness in Chambers\n\n28 Subpoena for attendance before Registrar\n\n29 Number of persons in a subpoena other than a subpoena duces tecum\n\n30 Number of persons in subpoena duces tecum\n\n31 Correction of errors in subpoena\n\n32 Service of subpoena\n\n33 Affidavit to prove service of subpoena\n\n34 Within what time subpoena can be served\n\nIV Shorthand notes\n\n","sortOrder":11},{"sectionNumber":"35","sectionType":"section","heading":"Shorthand notes","content":"35 Shorthand notes\n\nOrder 38 Court experts\n\n1 Interpretation\n\n2 Application to appoint independent expert\n\n3 The report of Court expert\n\n4 Cross-examination\n\n5 Nomination and instructions\n\n6 Experiments\n\n7 Further report\n\n8 Remuneration\n\n9 Several issues\n\n10 Costs of proceedings\n\nOrder 39 Affidavits and depositions\n\n1 Evidence on motions etc\n\n2 Title of affidavits\n\n3 Contents of affidavit\n\n4 Exhibits\n\n5 Certificate on exhibit\n\n6 Use of figures\n\n7 Before whom affidavits may be sworn\n\n8 Affidavits etc how to be sworn and taken abroad\n\n9 Form of affidavits\n\n10 Description and abode of deponent to be stated\n\n11 Affidavits made by two or more deponents\n\n12 Filing before using\n\n13 Affidavits to be filed in proper Registry\n\n14 Scandalous matter\n\n15 Alterations in affidavits\n\n16 Affidavits by illiterate or blind persons\n\n17 Affirmations\n\n18 Use of defective affidavit\n\n21 Special times for filing affidavits\n\n22 Affidavits in support of ex parte applications\n\n23 Copies of affidavits to be served\n\n24 Alterations in accounts to be initialled\n\nOrder 40 Exhibits\n\n1 List of exhibits\n\n2 Office copy of list of exhibits\n\nOrder 41 New trials\n\n1 New trial of cause heard without a jury\n\n2 New trial of cause tried with a jury\n\n3 Service of notice of motion\n\n4 Application of rules relating to appeals\n\n5 Hearing of application\n\n6 Evidence of Judge’s direction\n\nOrder 42 Motion for judgment\n\n1 Judgment on motion for judgment\n\n2 Setting down motion for judgment where issues have been directed to be tried\n\n3 Where some only of issues directed have been tried, any party may apply to set down action on motion for judgment\n\n4 Motion to be set down within one year\n\n5 Where judgment given etc on motion for judgment\n\nOrder 43 Entry of judgments\n\n1 Mode of entry\n\n2 Recital regarding service\n\n3 Date of judgment pronounced in Court\n\n4 Date of entry of other judgments\n\n5 Time to be stated for doing any act ordered to be done\n\n6 Judgment on production of affidavit or document\n\n7 Judgment on production of order or certificate\n\n8 Judgment on Registrar’s certificate\n\n9 Judgment by consent when party appears by a solicitor\n\n10 Consent of party in person\n\n11 Entry of satisfaction\n\nOrder 43A Interest on judgments\n\nOrder 44 Drawing up judgments and orders\n\n1 By whom judgments and orders to be drawn up\n\n2 Documents to be filed before judgment or order signed\n\n3 Documents to be left with Registrar on bespeaking judgment or order\n\n4 Registrar may require party to submit draft\n\n5 Time for bespeaking judgment or order\n\n6 Where judgment or order not bespoken\n\n7 Appointment for settling judgment or order\n\n8 Notice of appointment to be served on opposite party\n\n9 Service of notice of appointment\n\n10 Proof of service\n\n11 Appointment for passing judgment or order\n\n12 Default in attending appointment with documents\n\n13 Adjournment of appointments\n\n14 Settling and passing judgment or order without appointment\n\n15 Party to engross judgment or order\n\n16 Judgments and orders to be filed; duplicates\n\n17 Certificates for special allowance\n\n18 When orders need not be drawn up\n\n19 Date of order\n\n20 Authentication\n\n21 Entry of judgments and orders etc\n\n22 Application to add to or vary\n\n23 Consent orders\n\nOrder 1 Preliminary, interpretation and commencement of proceedings\n\nI Preliminary and Interpretation\n\n1 Name of rules \\[see Note 1\\]\n\nThese rules are the High Court Rules 1952.\n\n2 Commencement\n\nThese rules shall come into operation on the first day of January, 1953, and shall apply to all proceedings and appeals commenced or instituted on or after that date.\n\n","sortOrder":12},{"sectionNumber":"3","sectionType":"section","heading":"Repeal and saving","content":"3 Repeal and saving\n\n(1) The Rules of Court in force immediately before the commencement of these rules regulating the practice and procedure in the High Court of Australia are repealed.\n\n(2) The repeal effected by the last preceding subrule does not affect the validity of any proceedings taken under the Rules of Court so repealed, or a right, privilege, obligation or liability acquired, accrued or incurred under any of those Rules, or a legal proceeding or remedy in respect of such a right, privilege, obligation or liability.\n\n4 Pending proceedings etc\n\nA proceeding pending and a judgment, decree or order given or made before the commencement of these rules, being of a kind to which these rules apply, shall be treated as if pending, given or made under these rules, and may be proceeded with, enforced, varied, reversed or otherwise dealt with accordingly, subject to any special order or direction made or given by a Justice in a particular case.\n\n5 Interpretation\n\nIn these rules, unless the contrary intention appears:\n\n> Act means:\n\n(a) an Act of the Parliament of the United Kingdom which is in force in the Commonwealth or in a part of the Commonwealth;\n\n(b) an Act of the Parliament of the Commonwealth;\n\n(c) an Act of the Parliament of a State; and\n\n(d) an Ordinance in force in a State or Territory.\n\n> action means a civil proceeding commenced by writ or in such other manner as is prescribed by Rules of Court, but does not include a criminal proceeding by the Crown.\n\n> address for service means an address which complies with the provisions of Order 4 of these rules.\n\n> administrator includes an officer or agent of the Commonwealth, or of a State or Territory, authorized under the law of the Commonwealth, or of a State or Territory, to administer the estate of a deceased person.\n\n> Admiralty action means a proceeding instituted in the Court in the exercise of the jurisdiction conferred on it by or under the Colonial Courts of Admiralty Act, 1890.\n\n> Attorney-General means the Attorney-General of the Commonwealth.\n\n> body politic includes the Crown in right of the Commonwealth or of a State, and also in right of a part of the Queen’s dominions other than the Commonwealth, including the Crown in right of the United Kingdom.\n\n> cause includes a suit and criminal proceedings.\n\n> Chief Justice includes a Justice upon whom the powers and duties of the Chief Justice devolve for the time being.\n\n> committee includes a person entrusted under the law of the Commonwealth, or of a State or Territory, with the care or management of the person or estate of a person of unsound mind.\n\n> Commonwealth means the Commonwealth of Australia, and includes a Territory.\n\n> the Court means the High Court of Australia.\n\n> defendant includes a person against whom relief is sought by originating process.\n\n> District Registrar means an officer of a State or Territory who performs on behalf of the Court at any office of the Registry in such State or Territory any function under section 30 of the High Court of Australia Act 1979.\n\n> District Registry means an office of the Registry located elsewhere than at the seat of the Court.\n\n> document includes book, map, plan, drawing and photograph.\n\n> existing means existing immediately before the commencement of these rules.\n\n> file means file in a Registry, and filed and filing have corresponding meanings.\n\n> formerly, when used in relation to the Courts or the law or practice in England, means immediately before the date of the commencement of the Supreme Court of Judicature Act, 1873, namely the first day of November, 1875, and, when used in relation to the High Court or the practice or procedure in the High Court, means immediately before the commencement of these rules, and former has a corresponding meaning.\n\n> issue of fact includes the assessment of damages in a cause or matter.\n\n> Judiciary Act means the Judiciary Act 1903-1979.\n\n> Justice or single Justice means a Justice of the Court, including the Chief Justice, and includes:\n\n(a) a Justice sitting in Court or in Chambers;\n\n(b) a Justice sitting in Court or elsewhere as in Chambers;\n\n(c) a Justice sitting in a place otherwise than as a Court or as a member of a Court; and\n\n(d) a Justice sitting with a jury or with an assessor or assessors;\n\nand in the expressions Court or Justice and Court or a Justice means a Justice of the Court sitting in Chambers.\n\n> Law Officer means the Attorney-General or the Solicitor-General of the Commonwealth or of a State, as the case requires.\n\n> Marshal means the Marshal of the Court, and includes a Deputy Marshal and any other officer or person bound or entitled to discharge the duties and perform or execute the functions or office of the Marshal or a Deputy Marshal.\n\n> oath and affidavit include affirmation and statutory declaration, and swear includes affirm and declare.\n\n> officer includes Registrar.\n\n> order includes rule made by a Court or judge.\n\n> original proceeding means a proceeding in the Court which is not a proceeding in a pending cause or matter, and includes a cause and a summons in an interpleader proceeding.\n\n> originating process means writ of summons or other summons by which a cause or matter is commenced.\n\n> originating summons means a summons other than a summons in a pending cause or matter.\n\n> party and parties include as well as the plaintiff and defendant:\n\n(a) a person not originally a party against whom a counterclaim is set up or who has been served with notice to appear under any of these rules; and\n\n(b) a person served with notice of or attending a proceeding although not named on the record or in the process.\n\n> person includes corporation and body politic.\n\n> person of unsound mind includes a person in respect of whom there has been made, given or taken under the law of the Commonwealth or of a State or Territory an order, certificate or proceeding in consequence of which, under that law, that person, or property of that person, is, by reason of his mental infirmity, committed to the care, management or control of some other person.\n\n> plaintiff includes a person seeking relief against another person by a form of proceeding in a Court.\n\n> prescribed means prescribed by Rules or by an Act or law.\n\n> Principal Registrar means the Registrar.\n\n> Principal Registry means the office of the Registry located at the seat of the Court.\n\n> proceeding includes action, cause, matter and suit.\n\n> proper officer, when used in relation to an officer of the Court, means an officer ascertained as follows:\n\n(a) where a duty or function to be discharged or performed under an Act or these rules is a duty or function which has, before the commencement of these rules, been discharged or performed by an officer, that officer shall, unless otherwise provided by these rules and subject to any direction given by the Chief Justice, continue to be the proper officer to discharge or perform that duty or function;\n\n(b) where a new duty or function is, under an Act or these rules, to be discharged or performed, the proper officer to discharge or perform the same shall be the officer directed by these rules, or, if there is no such officer, then such other officer as is from time to time directed to discharge or perform the duty or function by the Chief Justice, or, subject to any other direction by the Chief Justice, by a Registrar pursuant to these rules;\n\n(c) where a doubt arises as to the proper officer to discharge a duty or perform a function, the proper officer shall be such officer as is directed by the Chief Justice to perform the duty or perform the function.\n\n> receiver includes consignee or manager appointed by or under an order of the Court.\n\n> Registrar means the Registrar appointed under section 26 of the High Court of Australia Act 1979 and includes a Deputy Registrar so appointed.\n\n> Registry, a Registry and any Registry mean the Registry established under section 30 of the High Court of Australia Act 1979 and include each office of the Registry.\n\n> Rules, these rules or rules of Court means these rules, and includes:\n\n(a) any forms, fees and costs referred to in these rules; and\n\n(b) any other rules of Court, forms, fees and costs made or prescribed in amendment of, or in addition to, these rules.\n\n> seal and seal of the Court mean the seal of the Court referred to in section 32 of the High Court of Australia Act 1979 and include such other seal as is prescribed by these rules.\n\n> sealed means sealed with the seal of the Court referred to in section 32 of the High Court of Australia Act 1979 or such other seal as is prescribed by these rules.\n\n> State means a State of the Commonwealth.\n\n> sue means commence or take part in proceedings as plaintiff, petitioner or applicant.\n\n> suit includes an action or original proceeding between parties.\n\n> the Registry in which the proceeding is commenced and the Registry in which the matter is then pending and words to the like effect mean “the office of the Registry at which the proceeding was lodged or issued”.\n\n> trial includes hearing.\n\n> United Kingdom means the United Kingdom of Great Britain and Northern Ireland, or of Great Britain and Ireland, as the case requires.\n\n> writing includes printing and typewriting and other similar methods of producing words in a visible form and written has a corresponding meaning.\n\n6 Reference to Acts etc\n\nWhere the provisions of an Act, or of these rules, referred to in these rules, have been amended, or repealed and re-enacted with or without modification, by a subsequent Act or Rules, reference in these rules to the provisions so amended or repealed shall, unless the contrary intention appears, be construed as reference to the provisions as amended or re-enacted.\n\nII Commencement and title of proceedings\n\n7 Commencement of proceedings\n\n(1) Proceedings commenced by writ of summons shall be called actions.\n\n(2) If there is not an applicable provision providing for the manner of commencement of particular proceedings, they may be commenced in a manner directed by a Justice.\n\n8 Title of proceedings\n\n(1) A proceeding in the Court shall be entitled “In the High Court of Australia”.\n\n(2) There shall be added below the words “In the High Court of Australia” the location of the office of the Registry in which the proceeding was commenced.\n\n  \n\nOrder 2 Writs of summons\n\n1 Endorsement of claim\n\nA writ of summons shall, before it is issued, be endorsed with a concise statement of the nature of the claim made and of the relief or remedy required in the action.\n\n2 Costs of prolix writs\n\nAny costs occasioned by the use of any forms of writs, and of endorsements thereon, other than, or more prolix than, the forms prescribed, shall be borne by the party using them unless the Court or a Justice otherwise directs.\n\n3 Form of writ\n\nThe writ of summons for the commencement of an action shall, except where a different form is required by these rules, be in one of the forms numbered 1 and 2 in the First Schedule, with such variations as the circumstances require.\n\n4 Leave to issue out of Commonwealth\n\nA writ of summons or other originating process for service out of the Commonwealth, or of which notice is to be given out of the Commonwealth, shall not be issued without the leave of the Court or a Justice.\n\n5 Form of writ for service out of the Commonwealth\n\n(1) A writ of summons to be served out of the Commonwealth, or of which notice is to be given out of the Commonwealth, shall be in one of the forms numbered 3 and 4 in the First Schedule, with such variations as the circumstances require.\n\n(2) The notice shall be in the form numbered 5 in the First Schedule, with such variations as the circumstances require.\n\n6 Admiralty action\n\nThe writ of summons in an Admiralty action in rem shall be in the form numbered 10 in the First Schedule, with such variations as the circumstances require.\n\n7 Dating and testing of writs\n\nA writ of summons and (unless by these rules or by any law it is otherwise provided) every other writ or originating process shall bear date on the day on which it is issued and shall be tested in the name of the Chief Justice.\n\n  \n\nOrder 3 Endorsement of claim\n\n1 Endorsement under Order 2, rule 1\n\nIn the endorsement required by Order 2, rule 1, it is not essential to set forth the precise ground of complaint or the precise remedy or relief to which the plaintiff considers himself entitled.\n\n2 Forms of endorsement\n\nThe endorsement of claim shall be in such concise form as the nature of the case requires.\n\n3 Endorsement to show representative capacity\n\nIf the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the endorsement shall show in what capacity the plaintiff or defendant sues or is sued.\n\n4 Endorsement where the claim is liquidated\n\n(1) In an action in which the plaintiff’s claim is for a debt or liquidated demand only, the endorsement, besides stating the nature of the claim, shall state the amount claimed for debt or in respect of that demand and for costs respectively, and shall further state that, upon payment of that amount within the time allowed for appearance, further proceedings will be stayed.\n\n(2) The statement shall be as in the form numbered 2 in the First Schedule.\n\n(3) The plaintiff shall be at liberty to state for costs a sum of Twelve dollars sixty cents. If judgment is entered in the action in default of appearance in pursuance of Order 12, rule 3, the amount of costs included in the judgment shall be the said sum of Twelve dollars sixty cents together with Eight dollars forty cents for costs of judgment in addition to mileage.\n\n(4) Unless the writ is endorsed with the amounts mentioned in  \nsubrule (3), the defendant notwithstanding that he has paid such costs may have the costs taxed, and if more than one-sixth is disallowed the plaintiff’s solicitor shall pay the costs of taxation.\n\n5 Ordinary account\n\nWhere the plaintiff, in the first instance, desires to have an account taken, the writ of summons shall be endorsed with a claim that an account be taken.\n\n6 Libel\n\nIn an action for libel, the endorsement on the writ shall state sufficient particulars to identify the publications in respect of which the action is brought.\n\n  \n\nOrder 4 Endorsement of address\n\n1 Where plaintiff sues by solicitor\n\n(1) The solicitor of a plaintiff suing by a solicitor shall endorse upon the writ of summons the address of the plaintiff and also his own name and place of business or the name of his firm and its place of business.\n\n(2) Where the place of business so endorsed is not more than three miles from the office of the Registry in which the proceeding is commenced, it shall be the address for service of the plaintiff.\n\n(3) Where that place of business is more than three miles from the office of that Registry, the solicitor shall also endorse upon the writ the address of a proper place, which is not more than three miles from that office, to be the address for service of the plaintiff.\n\n(4) Where the solicitor is acting as agent of another solicitor, he shall add to his own name and place of business, or firm name and its place of business, the name and place of business of the principal solicitor, or the name of the firm of the principal solicitor and its place of business.\n\n2 Where plaintiff sues in person\n\n(1) A plaintiff suing in person shall endorse upon the writ of summons his place of residence and his occupation.\n\n(2) Where his place of residence is not more than three miles from the office of the Registry in which the proceeding is commenced, it shall be his address for service.\n\n(3) Where that place of residence is more than three miles from the office of that Registry, he shall also endorse upon the writ the address of a proper place, which is not more than three miles from that office, to be his address for service.\n\n3 Address for service\n\nNotices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the plaintiff at his address for service.\n\n4 Where notice is served in lieu of writ\n\nWhere notice of a writ of summons or other originating process is to be served on a defendant in pursuance of Order 10, the endorsement required by the preceding rules of this Order shall be made both on the writ, or other originating process, and on the notice.\n\n5 Matters not commenced by writ\n\nWhere proceedings are commenced otherwise than by writ of summons, the preceding rules of this Order apply to the process by which the proceedings are originated as if it were a writ of summons.\n\n  \n\nOrder 5 Issue of, and appearances to, writs of summons and originating processes\n\nI Place of issue\n\n1 Writs etc may be issued out of any Registry\n\nA writ of summons or other originating process may be issued out of any Registry.\n\n2 Endorsement as to appearance on writs etc issued out of Principal Registry\n\nWhere a writ of summons or other originating process is issued out of the Principal Registry, and that writ or other process, or notice of that writ or other process, is to be served upon or given to a person, a statement in accordance with the “Memorandum to be subscribed on writs, &c., issued from the Principal Registry” set forth in form numbered 1 in the First Schedule shall appear upon the face of the writ of summons or other process.\n\nII General\n\n4 Preparing and printing writs\n\nA writ of summons or other originating process shall be prepared by the plaintiff or his solicitor and shall be written, printed or typewritten on paper of the same kind as these rules direct in the case of documents required to be printed.\n\n5 Signing etc by proper officer\n\nA writ of summons or other originating process shall be signed, sealed and numbered by the proper officer and shall thereupon be deemed to be issued.\n\n6 Copy of writ etc to be left with proper officer\n\n(1) The plaintiff or his solicitor shall, on presenting a writ of summons or other originating process for signing, sealing and numbering, leave with the officer a copy (written, printed or typewritten on paper of the kind specified in rule 4 of this Order) of the writ or other originating process and of all endorsements thereon.\n\n(2) The copy shall be signed by or for the solicitor leaving it, or by the plaintiff himself if he sues in person.\n\n7 Filing and marking of copy of writ etc\n\n(1) The officer receiving a copy of a writ or other originating process under the last preceding rule shall, on payment of the prescribed fee, file the copy.\n\n(2) An entry of the filing of the copy shall be made in a book to be called the Cause Book, or in a book to be called the Court Book, as the case may be, which are to be kept in the Registries in the manner and form in which those books were respectively kept immediately before the commencement of these rules.\n\n(3) The action or other proceeding shall be distinguished:\n\n(a) by the date of the year and a number in the same manner in which matters were distinguished in those books immediately before the commencement of these rules; and\n\n(b) by the name of the Registry out of which the writ of summons or other originating process, as the case may be, is issued.\n\nIII Admiralty actions\n\n8 Admiralty, arrest warrant after affidavit\n\n(1) In an Admiralty action in rem, a warrant for the arrest of property shall be in the form numbered 11 or the form numbered 12 in the First Schedule, with such variations as the circumstances require, and may be issued at the instance of either the plaintiff or the defendant at any time after the writ of summons has issued.\n\n(2) Except by leave of the Court or a Justice, a warrant of arrest shall not be issued until an affidavit by the party or his agent has been filed and the provisions of subrules (3), (4) and (5) of this rule complied with.\n\n(3) The affidavit shall state:\n\n(a) the name and description of the party at whose instance the warrant is to be issued;\n\n(b) the nature of the claim or counterclaim;\n\n(c) the name and nature of the property to be arrested;\n\n(d) that the claim or counterclaim has not been satisfied;\n\n(e) that the aid of the Court is required to enforce it;\n\n(f) in an action of wages or of possession, the national character of the vessel proceeded against and, if against a foreign vessel, that notice (a copy of which shall be exhibited to the affidavit) of the commencement of the action has been given to a consular officer of the State to which the vessel belongs, if there be one within the Commonwealth; and\n\n(g) in an action of distribution of salvage, the amount of salvage money awarded or agreed to be accepted and the name, address and description of the party holding the salvage money.\n\n(4) In an action of bottomry, the bottomry bond, and, if it is in a foreign language, a notarial translation of the bond, shall be produced for the inspection and perusal of the Registrar and a copy of the bond, or of the translation of the bond, certified to be correct, shall be exhibited to the affidavit.\n\n(5) The solicitor who applies for the issue of the warrant shall lodge an undertaking to pay the fees and expenses of the Marshal.\n\n9 Special circumstances\n\nThe Court or a Justice may, if it or he thinks fit:\n\n(a) allow a warrant of arrest to issue although the affidavit referred to in the last preceding rule does not contain all the required particulars;\n\n(b) in an action of wages against a foreign ship, waive the service of the notice; and\n\n(c) in an action of bottomry, waive the production of the bond.\n\nIV Time for appearance\n\n10 Time for appearance to be limited by writ\n\nWhere a writ of summons or other originating process is to be served within the Commonwealth, the time to be limited in the writ or other process for the appearance of a defendant shall be:\n\n(a) where the place of service is in the State or Territory in which the Registry from which it is issued is situated — fourteen days;\n\n(b) where the place of service (not being in Papua, New Guinea or Norfolk Island) is in a State or Territory other than the State or Territory in which the Registry from which it is issued is situated — twenty-one days;\n\n(c) where the place of service is in Papua, New Guinea or Norfolk Island — twenty-eight days; and\n\n(d) in any other case — three months.\n\nV Actions on relation\n\n11 Actions by Attorney-General on relation\n\n(1) Where a proceeding is commenced in the name of the Attorney‑General of the Commonwealth or of a State on the relation of a private person, the writ of summons or other originating process, when presented for issue, shall have upon it a fiat under the hand of the Attorney-General concerned directing or approving its issue.\n\n(2) A copy of the fiat shall be endorsed upon each copy of the writ of summons or other process to be served.\n\n  \n\nOrder 6 Concurrent writs\n\n1 Concurrent writs, how issued etc\n\n(1) The plaintiff in an action may, at the time of, or at any time during twelve months after, the issue of an original writ of summons, issue one or more concurrent writ or writs.\n\n(2) A concurrent writ shall bear teste of the same day as the original writ, and shall be marked with a seal, impressed upon the writ by the proper officer, bearing the word Concurrent and the date of issue of the concurrent writ.\n\n2 Period during which concurrent writ in force\n\nA concurrent writ shall be in force only for the period during which the original writ in the action is in force.\n\n3 Concurrent writs for service within, and outside, the Commonwealth\n\n(1) A writ for service within the Commonwealth may be issued and marked as a concurrent writ with a writ for service outside the Commonwealth or a writ of which notice in lieu of service is to be given.\n\n(2) A writ for service outside the Commonwealth, or a writ of which notice in lieu of service is to be given, may be issued and marked as a concurrent writ with a writ for service within the Commonwealth.\n\n4 Concurrent originating process\n\nWhere a proceeding is required or permitted to be commenced otherwise than by writ of summons, the preceding rules of this Order apply, mutatis mutandis, to the issue of a concurrent originating process in that proceeding.\n\n  \n\nOrder 7 Disclosure by solicitors and plaintiffs, and change of solicitor\n\n1 Where name of solicitor endorsed on writ\n\n(1) A solicitor whose name is endorsed on a writ of summons or other originating process shall, on demand in writing made by or on behalf of a defendant who has been served with or has appeared to the writ or process, forthwith declare in writing whether the writ or other process has been issued by him or with his authority or privity.\n\n(2) Where the solicitor fails so to declare within three days after service of the demand, a Justice may order him, within a specified time, so to declare and also to declare the profession or occupation and place of abode of the plaintiff.\n\n(3) Where the solicitor declares that the writ or other originating process was not issued by him or with his authority or privity, proceedings upon the writ or other process shall be stayed and further proceedings shall not be taken upon the writ or other process without leave of the Court or a Justice.\n\n2 Change of solicitor\n\n(1) Subject to the provisions of Order 16, rule 36, subrule (2), a party suing or defending by a solicitor may change his solicitor in a proceeding without an order for that purpose.\n\n(2) Subject to rules 6 and 7 of this Order, the former solicitor shall be considered the solicitor of the party until the final conclusion of the proceeding before the Court, whether on appeal or otherwise, unless and until:\n\n(a) notice of a change of solicitor is filed in the Registry in which the proceeding is then pending; and\n\n(b) a copy of the notice, endorsed with a memorandum stating that the notice has been duly filed and the name of the Registry in which it has been filed, is served on each other party to the proceeding, other than a party in default as to entry of appearance.\n\n(3) A notice under the last preceding subrule shall be signed by the new solicitor and shall state his place of business.\n\n(4) Where that place of business is not more than three miles from the office of the Registry in which the proceeding is pending, it shall be the address for service of the party.\n\n(5) Where that place of business is more than three miles from the office of that Registry, the notice shall also state the address of a proper place, which is not more than three miles from that office, to be the address for service of the party.\n\n(6) Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the party at his address for service.\n\n3 Notice of appointment of solicitor\n\n(1) Where a party, after having sued or defended in person, appoints a solicitor to act on his behalf in a proceeding, he may give notice of that appointment.\n\n(2) The provisions of the last preceding rule relating to a notice of change of solicitor and to service apply, with the necessary modifications, in the case of notice of appointment of a solicitor.\n\n4 Notice of intention to act in person\n\n(1) Where a party, after having sued or defended by a solicitor, intends to act in person, he may give notice stating his intention to act in person and giving an address for service.\n\n(2) The provisions of rule 2 of this Order relating to a notice of change of solicitor apply, with the necessary modifications, to a notice of intention to act in person.\n\n5 Power to act through new solicitor\n\nA party giving notice under rule 2 or rule 3 of this Order may perform the duties prescribed by those rules in person or through his new solicitor.\n\n6 Removal of solicitor from the record at the instance of another party\n\n(1) Where a solicitor who has acted for a party in a proceeding:\n\n(a) has died;\n\n(b) has become bankrupt;\n\n(c) cannot be found;\n\n(d) has failed to take out a practising certificate, where one is required, or to register as a practitioner, in the High Court; or\n\n(e) has ceased to have the right to practise in the High Court;\n\nand the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of this Order, another party to the proceeding may, on notice to be served on the first-named party personally, or by pre-paid post letter addressed to his last-known place of address, unless the Court or a Justice otherwise directs, apply to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the first-named party in the proceeding, and the Court or Justice may make an order accordingly.\n\n(2) Where an order is made under the last preceding subrule, the party on whose application the order was made shall:\n\n(a) serve on each other party to the proceeding (other than a party in default as to entry of appearance) a copy of the order;\n\n(b) procure the order to be filed in the Registry in which the proceeding is then pending; and\n\n(c) leave at that Registry a certificate signed by the applicant or his solicitor that the order has been duly served.\n\n(3) Where the party on whose application the order was made has complied with the last preceding subrule, the party against whom the order was made shall either appoint another solicitor or give notice of intention to act in person in accordance with the provisions of this Order, and, in default of his so doing, documents in respect of which personal service is not required may be served on the party so in default by being filed in the Registry.\n\n(4) An order made under this rule does not affect the rights or liabilities of a solicitor and the party for whom he acted as between themselves.\n\n7 Withdrawal of solicitor who has ceased to act for a party\n\n(1) Where a solicitor who has acted for a party in a proceeding has ceased so to act and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of this Order, the solicitor may, on notice to be served on the party personally or by pre-paid post letter addressed to his last-known place of address, unless the Court or a Justice otherwise directs, apply to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the proceeding, and the Court or Justice may make an order accordingly.\n\n(2) Where an order is made under the last preceding subrule, the solicitor on whose application the order was made shall:\n\n(a) serve on each party to the proceeding (other than a party in default as to entry of appearance) a copy of the order;\n\n(b) procure the order to be filed in the Registry in which the proceeding is then pending; and\n\n(c) leave at that Registry a certificate signed by him that the order has been duly served;\n\nand, in default of his so doing, and subject to rules 2, 4 and 6 of this Order, he shall be considered the solicitor of the party for whom he has acted to the final conclusion of the proceeding before the Court, whether on appeal or otherwise.\n\n(3) Where:\n\n(a) an order made under this rule has been filed in the appropriate Registry; and\n\n(b) the party to whom the order relates has not appointed another solicitor or given notice of intention to act in person in accordance with the provisions of this Order;\n\na document in respect of which personal service is not required may be served on that party by being filed in that Registry.\n\n(4) An order made under this rule does not affect the rights or liabilities of a solicitor and a party as between themselves.\n\n8 Solicitor not to act for adverse parties\n\nA solicitor shall not act in a proceeding for plaintiff and defendant or for any two or more defendants having adverse interests in a matter.\n\n  \n\nOrder 8 Renewal of writs\n\n1 Original writ in force for 12 months\n\n(1) Subject to the next succeeding subrule, an original writ of summons shall not be in force for more than twelve months from the day of the date of the writ, including the day of that date.\n\n(2) Where a defendant named in an original writ has not been served with the writ, the plaintiff may, before the expiration of twelve months from the day of the date of the writ, apply to the Court or a Justice for leave to renew the writ and the Court or Justice, if satisfied that reasonable efforts have been made to serve the defendant, or for other good reason, may order that the original or concurrent writ be renewed for six months from the date of the renewal inclusive, and so from time to time during the currency of the renewed writ.\n\n(3) Where an order is made under the last preceding subrule, the writ shall be renewed by being marked with a seal bearing the word Renewed and the date of the day, month and year of the renewal.\n\n(4) A writ so renewed shall remain in force, and be available to prevent the operation of a law whereby the time for the commencement of the action is limited, and for all other purposes, from the date of issue of the original writ of summons.\n\n(5) A seal for the purpose of marking writs in accordance with this rule shall be provided and kept for that purpose at each Registry and shall be impressed upon the writ by the proper officer upon delivery to him by the plaintiff or his solicitor of a memorandum in the form numbered 13 in the First Schedule, with such variations as the circumstances require.\n\n2 Evidence of renewal\n\nThe production of a writ of summons purporting to be marked with the seal of the Court showing the writ to have been renewed in accordance with this Order is sufficient evidence of its having been so renewed and of the commencement of the action as of the first date of the renewed writ for all purposes.\n\n3 Lost writ\n\nWhere a writ or other originating process, of which the production is necessary, has been lost, the Court or a Justice, upon being satisfied of the loss and of the correctness of a copy of the writ or other process, may order that the copy shall be sealed in lieu of the original writ or other originating process.\n\n  \n\nOrder 9 Service of writs of summons\n\nI Mode of service\n\n1 Undertaking to accept service\n\nService of a writ or other originating process upon a party is not required when the solicitor of the party to be served undertakes in writing to accept service and an appearance is entered.\n\n2 When service required, how effected\n\n(1) Where personal service is required, the writ or other originating process shall, whenever it is practicable, be served by delivering a copy of the writ or other process, and of the endorsement thereon, and at the same time producing the original.\n\n(2) Where it appears to the Court or a Justice that the plaintiff is, from any cause, unable to effect prompt personal service, the Court or Justice may make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise, as is just.\n\n3 Substituted service\n\nAn application to the Court or a Justice for an order for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon which the application is made.\n\nII On particular defendants\n\n4 Infant\n\n(1) Where an infant is a defendant, service on his father or guardian, or if none, then upon the person with whom the infant resides or under whose care he is, shall, unless the Court or a Justice otherwise orders, be deemed good service on the infant.\n\n(2) The Court or Justice may order that service made, or to be made, on the infant shall be deemed good service.\n\n5 Persons of unsound mind\n\nWhere a person of unsound mind is a defendant in a proceeding, service on him shall be effected in such a manner as a Justice directs upon application made supported by affidavit.\n\nIII On corporations and agents\n\n6 Service on corporations etc\n\nSubject to a contrary statutory provision, a writ of summons or other originating process, or notice of a writ or other process, to be served on a corporation aggregate, may be served on the mayor, president or other head officer, or on the town clerk, clerk, treasurer, secretary, manager or other principal officer of that corporation within the Commonwealth.\n\n7 Service on agent\n\n(1) Where a contract has been entered into within the Commonwealth by or through an agent residing or carrying on business within the Commonwealth on behalf of a principal residing or carrying on business outside the Commonwealth, a writ of summons in an action relating to or arising out of that contract may, by leave of the Court or a Justice given before the determination of the agent’s authority or of his business relations with the principal, be served on the agent, in lieu of or in addition to service upon his principal.\n\n(2) Notice of the order giving leave to serve an agent, and a copy of that order and of the writ of summons, shall forthwith be sent by pre-paid registered post letter to the defendant or defendants at his or their address outside the Commonwealth.\n\nIV In particular actions\n\n8 Service in action for recovery of land\n\nService of a writ of summons in an action to recover land may, in case of vacant possession, when service 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.\n\n9 Admiralty actions in rem\n\nIn an Admiralty action in rem, service of a writ or warrant is not required where the solicitor of the defendant agrees in writing to accept service and to put in bail, or to pay money into Court in lieu of bail.\n\n10 Service of warrant of arrest\n\n(1) In an Admiralty action in rem, the warrant of arrest shall be served by the Marshal or his deputy.\n\n(2) The party issuing the warrant shall, within seven days from its service, file the warrant, endorsed with a certificate of service, in the Registry out of which it was issued.\n\n11 Service of writ or warrant, how effected\n\nIn an Admiralty action in rem, service of a writ of summons or warrant against a ship, freight or cargo on board shall be effected by nailing or affixing the original writ or warrant for a short time on the mainmast, or on the single mast, of the vessel or on some other conspicuous part of the vessel, and, on taking off the process, leaving a true copy of it nailed or fixed in its place.\n\n","sortOrder":13},{"sectionNumber":"12","sectionType":"section","heading":"When cargo landed","content":"12 When cargo landed\n\nWhere cargo has been landed or transhipped, service of the writ of summons or warrant to arrest the cargo and freight shall be effected by placing the writ or warrant for a short time on the cargo, and, on taking off the process, by leaving a true copy upon it.\n\n","sortOrder":14},{"sectionNumber":"13","sectionType":"section","heading":"Where no access to cargo","content":"13 Where no access to cargo\n\nWhere cargo is in the custody of a person who will not permit access to it, service of the writ or warrant may be made upon the custodian.\n\n","sortOrder":15},{"sectionNumber":"14","sectionType":"section","heading":"Proceeds in Court","content":"14 Proceeds in Court\n\nIn an Admiralty action in rem, the service of a writ of summons or warrant upon proceeds in Court shall be effected by showing the original writ to the Registrar and leaving with him a copy of it, which service shall be a sufficient arrest of the proceeds.\n\nV Generally\n\n15 Endorsement after service\n\n(1) The person serving a writ of summons or other originating process shall, within three days after service, endorse on the writ or other originating process the day of the month and week, and the time of the day, of the service of the writ or other process, and, if he does not do so, the plaintiff, in case of non-appearance, may not proceed as upon default without the leave of the Court or a Justice.\n\n(2) An affidavit of service of the writ or other originating process shall state the day on which the endorsement referred to in the last preceding subrule was made.\n\n(3) This rule applies to substituted as well as to other service.\n\n  \n\nOrder 10 Service outside the Commonwealth\n\n1 In certain cases service of writ etc allowed outside Commonwealth\n\n(1) Leave to serve a writ of summons, or notice of a writ of summons, outside the Commonwealth may be given by the Court or a Justice where:\n\n(a) the whole subject-matter of the action is land situated within the Commonwealth (with or without rents or profits), or the perpetuation of testimony relating to land within the Commonwealth;\n\n(b) an act, deed, will, contract, obligation or liability affecting land or hereditaments situated within the Commonwealth is sought to be construed, rectified, set aside or enforced in the action;\n\n(c) relief is sought against a person domiciled or ordinarily resident within a State or Territory;\n\n(d) the action is for the execution, as to property situated within the Commonwealth, of the trusts of a written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of the Commonwealth or of a State or Territory;\n\n(e) the action is one brought to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of the breach of a contract:\n\n(i) made within the Commonwealth;\n\n(ii) made by or through an agent trading or residing within the Commonwealth on behalf of a principal trading or residing outside the Commonwealth; or\n\n(iii) which is governed by the law of the Commonwealth or of a State or Territory;\n\n(f) the action is brought in respect of a breach committed within the Commonwealth of a contract wherever made, even though that breach was preceded or accompanied by a breach outside the Commonwealth which rendered impossible the performance of the part of the contract which ought to have been performed within the Commonwealth;\n\n(g) the action is founded on a tort committed within the Commonwealth;\n\n(h) an injunction is sought as to anything to be done within the Commonwealth, or a nuisance within the Commonwealth is sought to be prevented or removed, whether damages are or are not also sought in respect of that thing or nuisance;\n\n(i) a person outside the Commonwealth is a necessary or proper party to an action properly brought against some other person duly served within the Commonwealth;\n\n(j) the action is by a mortgagee or mortgagor in relation to a mortgage of personal property situated within the Commonwealth and seeks relief of the nature or kind following, that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, re-conveyance, delivery of possession by the mortgagee, but does not seek (unless and except so far as permissible under paragraph (e) of this subrule) a personal judgment or order for payment of moneys due under the mortgage; or\n\n(k) the action is brought by virtue of the Civil Aviation (Carriers’ Liability) Act 1959.\n\n(2) In paragraph (j) of the last preceding subrule:\n\n(a) mortgage means a mortgage, charge or lien of any description;\n\n(b) mortgagee means a party for the time being entitled to or interested in a mortgage;\n\n(c) mortgagor means a party for the time being entitled to or interested in property subject to a mortgage;\n\n(d) personal property situated within the Commonwealth means personal property which, on the death of an owner thereof intestate, would form subject-matter for the grant of letters of administration to his estate under the law of a State or Territory.\n\n2 Agreement as to jurisdiction and mode of service\n\n(1) Where the parties to a contract upon which an action which is within the jurisdiction of the Court is brought have agreed:\n\n(a) that the Court shall have jurisdiction to entertain an action in respect of that contract;\n\n(b) that service of a writ of summons in that action may be effected at a place within or outside the Commonwealth on a party, or on a person on behalf of a party, or in a manner specified or indicated in the contract;\n\nservice of the writ of summons at the place (if any), on the party or on the person (if any) and in the manner (if any) specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident.\n\n(2) Where no place, mode or person is so specified or indicated, service outside the Commonwealth of the writ may be ordered.\n\n3 Application to be supported by evidence\n\n(1) An application for leave to serve a writ of summons, or notice of a writ of summons, on a defendant outside the Commonwealth shall be supported by affidavit or other evidence stating:\n\n(a) that, in the belief of the deponent, the plaintiff has a good cause of action;\n\n(b) the place or country where that defendant is or probably may be found; and\n\n(c) the grounds upon which the application is made.\n\n(2) Leave to serve the writ or notice outside the Commonwealth shall not be granted unless it is made sufficiently to appear to the Court or Justice that the cause is a proper one for service outside the Commonwealth under this Order.\n\n4 Order to fix time for appearance\n\n(1) An order giving leave to effect service or give notice outside the Commonwealth shall limit a time after the service or notice within which the defendant in respect of whom the leave is given is to enter an appearance.\n\n(2) The time referred to in the last preceding subrule shall depend on the place or country where or within which the writ is to be served or the notice given, and on whether the airmail is available to the defendant.\n\n5 Notice of writ\n\nWhere the defendant is not within the Commonwealth, service of notice of a writ is deemed to be effective service of the writ.\n\n6 Service of notice of writ\n\nWhere leave is given under rule 1 of this Order to serve notice of a writ of summons outside the Commonwealth, the notice shall, subject to rules 7 and 9 of this Order and to any direction given by the Court or a Justice 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 a writ of summons is served.\n\n7 Service abroad by letter of request\n\n(1) Where leave is given to serve a writ of summons, or a notice of a writ of summons, in a country to which this rule, by order of the Chief Justice from time to time, is applied, the procedure prescribed by the succeeding subrules of this rule may be adopted.\n\n(2) The document to be served shall be sealed with the seal of the Court used for sealing documents which are to be served outside the Commonwealth and shall be transmitted to the Attorney‑General by the Chief Justice together with:\n\n(a) a copy of the document translated into the language of the country in which service is to be effected; and\n\n(b) a request in the form numbered 6 in the First Schedule, with such variations as the circumstances require, for the further transmission of the document and the copy to the government of the country in which leave to serve the document has been given.\n\n(3) The party bespeaking a copy of a document for service under this rule shall, at the time of bespeaking the copy, file a praecipe in the form numbered 8 in the First Schedule.\n\n(4) An official certificate, or declaration upon oath or otherwise, transmitted through the diplomatic channel by the government or a court of a country to which this rule applies, to the High Court, if it certifies or declares the document:\n\n(a) to have been personally served; or\n\n(b) to have been duly served upon the defendant in accordance with the law of that country, or words to that effect;\n\nis sufficient proof of that 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.\n\n(5) Where an official certificate or declaration, transmitted to the Court in manner provided in the last preceding subrule, certifies or declares that efforts to serve a document have been without effect, the Court or a Justice may, upon the ex parte application of the plaintiff, order in the form numbered 42 in the First Schedule, with such variations as the circumstances require, that the plaintiff may bespeak a request for substituted service of the document.\n\n(6) A request for substituted service of a document under this rule may be bespoken by the plaintiff, at the Registry out of which the document has been issued, upon filing a praecipe in the form numbered 8 in the First Schedule, and the document and a copy of the document and of the order shall be sealed and transmitted to the Attorney-General in the manner described in subrule (2) of this rule together with a request in the form numbered 9 in the First Schedule, with such variations as the circumstances require.\n\n8 Other originating processes\n\n(1) Service outside the Commonwealth may be allowed by the Court or a Justice of an originating process, other than a writ of summons, or of a summons, order or notice in interlocutory proceedings, in a case in which it is, in the opinion of the Court or Justice, proper to make such an order.\n\n(2) Rules 3, 4, 5, 6 and 7 of this Order apply, mutatis mutandis, to service allowed pursuant to this rule.\n\n9 Service of Australian documents in Convention countries\n\n(1) Where service is authorized by or under these rules of a writ of summons or other originating process, or of a summons, order, notice or other document, in a foreign country with which a Convention in that behalf has been made and extended to the Commonwealth, the procedure specified in the succeeding subrules of this rule shall, subject to any special provisions contained in the Convention, be adopted.\n\n(2) The party bespeaking the service shall file in the Registry out of which the writ of summons or other originating process is to be issued, or in which the matter is pending, a request in the form numbered 8 in the First Schedule, with such variations as the circumstances require.\n\n(3) The request shall state the medium through which it is desired the service shall be effected, that is, whether:\n\n(a) directly through the British or Australian Consul; or\n\n(b) through a foreign judicial authority.\n\n(4) Subject to the next succeeding subrule, the request shall be accompanied by:\n\n(a) the original document;\n\n(b) a translation of that document in the language of the country in which service is to be effected certified by or on behalf of the person making the request;\n\n(c) a copy of the document and the translation for every person to be served; and\n\n(d) such further copies as the Convention requires.\n\n(5) Where the service is required to be made on a British subject directly through the British or Australian Consul, the translation and copies of the translation need not accompany the request unless the Convention expressly requires that they should do so.\n\n(6) The document to be served shall be sealed with the Office seal and shall be forwarded by the Registrar of the Registry referred to in subrule (2) of this rule to the Attorney-General for transmission to the foreign country.\n\n(7) An official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by a British or Australian consular authority, to the Court, establishing the fact and the date of the service of the document, is sufficient proof of that 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.\n\n(8) Where a writ of summons or other originating process, or notice of a writ or other process, is served pursuant to this rule and an official certificate of service is produced, an endorsement of service under Order 9, rule 15, is not required.\n\n10 Validity of other service\n\nThe last preceding rule does not apply to, or render invalid or insufficient, a mode of service in a foreign country, with which a Convention has been made, which is otherwise valid or sufficient according to the procedure of the Court and which is not expressly excluded by the Convention made with that foreign country and extended to the Commonwealth.\n\n11 Air mail\n\nThe Court or a Justice may for the purpose of effecting service give leave to transmit any document by air mail.\n\n12 British subjects residing outside the Commonwealth\n\nWhere the party to be served outside the Commonwealth is a British subject, the Court or a Justice, upon being satisfied by affidavit:\n\n(a) that the subject-matter of the proceeding is such that, under the provisions of this Order, the originating process was such as could properly be served outside the Commonwealth;\n\n(b) that it was personally served upon the party, or that reasonable efforts were made to effect personal service of it upon the party and that it came to his knowledge; and\n\n(c) that he wilfully neglects to appear in the proceeding, or that he is living out of the jurisdiction of the Court in order to defeat and delay the plaintiff;\n\nmay direct, from time to time, that the plaintiff may proceed in such manner, and subject to such conditions, as the Court or a Justice thinks fit.\n\n13 Actions under Civil Aviation (Carriers’ Liability) Act 1959\n\n(1) The provisions of this rule apply in any case where, for the purpose of an action brought by virtue of the Civil Aviation (Carriers’ Liability) Act 1959, leave is given to serve notice of a writ of summons upon a defendant (other than the Commonwealth), being:\n\n(a) a Party to the Convention as defined by section 10 of that Act; or\n\n(b) a High Contracting Party to the Convention as defined by section 20 of that Act.\n\n(2) The notice shall specify the time for entering an appearance as limited in pursuance of rule 4 of this Order.\n\n(3) The notice shall be sealed with the Office Seal and shall be transmitted to the Attorney-General, together with:\n\n(a) a copy of the notice translated into the language of the country of the defendant; and\n\n(b) a request, in the form numbered 7 in the First Schedule, with such variations as the circumstances require, for the further transmission of the notice and the copy to the government of that country.\n\n(4) The party bespeaking a copy of a document for service under this rule shall, at the time of bespeaking the copy, file a praecipe in the form numbered 8 in the First Schedule.\n\n(5) An official certificate transmitted by the Attorney-General to the Court certifying that the notice was delivered on a specified date to the government of the country of the defendant, shall be deemed to be sufficient proof of 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.\n\n(6) After entry of appearance by the defendant or, if no appearance is entered, after the expiry of the time limited for appearance, the action may proceed to judgment in all aspects as if the defendant had, for the purposes of the action, waived all privilege and submitted to the jurisdiction of the Court.\n\n(7) Where it is desired to serve or deliver a summons, order, notice or other document in the proceedings on the defendant outside the Commonwealth, the provisions of this rule apply, with such variations as the circumstances require.\n\n14 Power of Court to cause persons to be informed\n\nThese rules do not in any way prejudice or affect the practice or power of the Court under which, when lands, funds, choses in action, rights or property within the Commonwealth are sought to be dealt with or affected, the Court may, without affecting to exercise jurisdiction over a person outside the Commonwealth, cause that person to be informed of the proceedings with a view to that person having an opportunity of opposing, claiming or otherwise intervening.\n\n  \n\nOrder 11 Appearance\n\n1 Appearance in Registry\n\nExcept in cases otherwise provided for by these rules of the High Court of Australia Act 1979 or the Judiciary Act, a defendant shall enter his appearance in the Registry out of which the writ or other originating process was issued.\n\n2 Where defendant does not reside etc in district\n\nWhere a defendant does not reside or carry on business in the State or Territory in which the Registry out of which the process was issued is situated, he may appear either in that Registry or in the Principal Registry.\n\n3 Mode of entering appearance; memorandum and duplicate\n\n(1) A defendant shall enter his appearance to a writ of summons or other originating process, to which an entry of an appearance is required, by delivering to the proper officer:\n\n(a) a memorandum of appearance in writing dated on the day of its delivery containing the name of the defendant’s solicitor or stating that the defendant defends in person; and\n\n(b) a duplicate of the memorandum of appearance.\n\n(2) The officer shall:\n\n(a) seal the memorandum of appearance and the duplicate memorandum of appearance with a seal bearing the words “Appearance entered” and showing the date on which the seal is affixed; and\n\n(b) return the duplicate memorandum of appearance to the person entering the appearance.\n\n(3) The duplicate memorandum of appearance so sealed shall be a certificate that the appearance was entered on the day indicated by the seal.\n\n4 Conditional appearance\n\nWhere a defendant desires to object:\n\n(a) to the jurisdiction;\n\n(b) to the writ or other originating process; or\n\n(c) to the service of the writ or other process or of a notice of the writ or other process;\n\nhe may, before the time limited for appearance has expired, obtain leave from a Justice on an ex parte application to enter a conditional appearance.\n\n5 Motion to set aside writ\n\nA defendant, before appearing, may, without entering, or obtaining an order to enter, a conditional appearance, take out a summons or serve notice of motion:\n\n(a) to set aside the writ or other originating process;\n\n(b) to set aside the service upon him of the writ or other originating process or of notice of the writ or other originating process; or\n\n(c) to discharge the order authorizing that service.\n\n6 Notice of entry to plaintiff\n\n(1) A defendant shall, on the day on which he enters an appearance, give notice of his appearance, in the form numbered 16 or the form numbered 19 in the First Schedule, to the plaintiff’s solicitor or, if the plaintiff sues in person, to the plaintiff himself.\n\n(2) The notice may be given either by notice in writing served at the address for service, or by pre-paid letter directed to that address and posted on the day of entering appearance in due course of post, and shall, in either case, be accompanied by a sealed duplicate memorandum of appearance.\n\n7 Entry by defendant entitled to enter at Principal Registry\n\n(1) Where a defendant is entitled to enter an appearance either at a District Registry or at the Principal Registry and he has entered it at the Principal Registry, the plaintiff shall, upon receipt of the notice and sealed duplicate memorandum of appearance referred to in the last preceding rule, forthwith give notice in writing to the defendant’s solicitor or, if the defendant appears in person, to the defendant himself, of a proper place, which is not more than three miles from the Principal Registry, to be his address for service, where notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the plaintiff.\n\n(2) Notice under this rule may be given by serving it at the address for service of the defendant or by pre-paid letter directed to that address.\n\n(3) A copy of the notice shall be filed by the plaintiff in the Principal Registry.\n\n8 Defendant’s address for service\n\n(1) The solicitor of a defendant appearing by a solicitor shall state in the memorandum of appearance his name and place of business or the name of his firm and its place of business.\n\n(2) Where the place of business so stated is not more than three miles from the office of the Registry in which the appearance is entered, it shall be the address for service of the defendant.\n\n(3) Where that place of business is more than three miles from the office of that Registry, the solicitor shall also state in the memorandum of appearance the address of a proper place, which is not more than three miles from that office, to be the address for service of the defendant.\n\n(4) Where the solicitor is acting as agent of another solicitor, he shall add to his own name and place of business, or firm name and its place of business, the name and place of business of the principal solicitor, or the name of the firm of the principal solicitor and its place of business.\n\n9 Defendant in person\n\n(1) A defendant appearing in person shall state in the memorandum of appearance his place of residence.\n\n(2) Where his place of residence is not more than three miles from the office of the Registry in which he enters his appearance, it shall be his address for service.\n\n(3) Where that place of residence is more than three miles from the office of that Registry, he shall also state in the memorandum of appearance the address of a proper place, which is not more than three miles from that office, to be his address for service.\n\n10 Address for service\n\nNotices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the defendant at his address for service.\n\n11 Memorandum irregular, address fictitious\n\n(1) Where a memorandum of appearance does not contain a proper address for service, it shall not be received.\n\n(2) Where a memorandum of appearance contains an address for service which is illusory or fictitious, the appearance may be set aside by the Court or a Justice on the application of the plaintiff, and the plaintiff may be permitted to proceed by filing proceedings in the Registry in which the matter is then pending without further service.\n\n12 Form of memorandum of appearance\n\nA memorandum of appearance shall be in such of the forms numbered 14, 15, 18, 20, 21 and 22 in the First Schedule as is applicable, with such variations as the circumstances require.\n\n13 Officer to enter memorandum\n\nUpon receipt of a memorandum of appearance, the proper officer shall forthwith enter the appearance in the Cause Book or Court Book, as the case may be.\n\n14 Appearance at Principal Registry to be notified to District Registry\n\nWhere a defendant is entitled to enter an appearance either at a District Registry or at the Principal Registry and he enters it at the Principal Registry, the Principal Registrar shall on the same day notify the Registrar of the District Registry by telegraph that the appearance has been entered.\n\n15 Defendants appearing by same solicitor\n\nWhere two or more defendants appear by the same solicitor and at the same time, the names of the defendants so appearing shall be inserted in one memorandum of appearance.\n\n","sortOrder":16},{"sectionNumber":"16","sectionType":"section","heading":"Solicitor not entering appearance","content":"16 Solicitor not entering appearance\n\nWhere a solicitor fails to enter an appearance or to put in bail or to pay money into Court in lieu of bail in an Admiralty action in rem in pursuance of his written undertaking so to do on behalf of a party, he is liable to attachment.\n\n","sortOrder":17},{"sectionNumber":"17","sectionType":"section","heading":"Bail bond in Admiralty actions","content":"17 Bail bond in Admiralty actions\n\nIn an Admiralty action in rem, bail may be taken before:\n\n(a) the Principal Registrar;\n\n(c) a Commissioner to administer oaths for the purposes of the High Court or the Supreme Court of a State or Territory; or\n\n(d) a Justice of the Peace or Notary Public;\n\nand in every case the sureties shall justify.\n\n","sortOrder":18},{"sectionNumber":"18","sectionType":"section","heading":"Time for filing bond","content":"18 Time for filing bond\n\n(1) Except by consent, a bail bond shall not be filed until after the expiration of twenty-four hours from the time when a notice, containing the names and addresses of the sureties and of the Registrar, Commissioner, Justice of the Peace or Notary Public before whom the bail was taken, has been served upon the adverse solicitor.\n\n(2) A copy of the notice, verified by affidavit, shall be filed with the bail bond.\n\n","sortOrder":19},{"sectionNumber":"19","sectionType":"section","heading":"Commissioner in certain cases not to take bail","content":"19 Commissioner in certain cases not to take bail\n\nA Commissioner, Justice of the Peace or Notary Public shall not take bail on behalf of a person for whom he, or a person in partnership with him, is acting as solicitor or agent.\n\n","sortOrder":20},{"sectionNumber":"20","sectionType":"section","heading":"Commission recoverable on taxation","content":"20 Commission recoverable on taxation\n\n(1) A commission or fee paid to a person becoming surety to a bail bond, or otherwise giving security, may be recovered on taxation.\n\n(2) The amount of the commission or fee shall not, in the aggregate, exceed one per centum on the amount in which bail is given.\n\n","sortOrder":21},{"sectionNumber":"21","sectionType":"section","heading":"Time for appearance","content":"21 Time for appearance\n\n(1) A defendant may appear at any time before judgment.\n\n(2) Where a defendant appears after the time limited by the writ or other originating process for appearance, he shall on the same day give notice of his appearance to the plaintiff’s solicitor or, if the plaintiff sues in person, to the plaintiff himself.\n\n(3) Unless the Court or a Justice otherwise orders, the defendant shall not be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the tenor of the writ or other originating process.\n\n22 Admiralty intervention\n\nIn an Admiralty action in rem, a person not named in the writ may intervene and appear on filing an affidavit showing that he is interested in the res under arrest or in the fund in Court.\n\n","sortOrder":22},{"sectionNumber":"23","sectionType":"section","heading":"Recovery of land","content":"23 Recovery of land\n\nA person not named as a defendant in a writ of summons for the recovery of land may, by leave of the Court or a Justice, appear and defend on filing an affidavit showing that he is in possession of the land either by himself or by his tenant.\n\n","sortOrder":23},{"sectionNumber":"24","sectionType":"section","heading":"Landlord appearing","content":"24 Landlord appearing\n\nA person appearing to defend an action for the recovery of land as landlord, in respect of property of which he is in possession only by his tenant, shall state in his appearance that he appears as landlord.\n\n","sortOrder":24},{"sectionNumber":"25","sectionType":"section","heading":"Recovery of land, person not named defendant","content":"25 Recovery of land, person not named defendant\n\n(1) Where a person not named as defendant in a writ of summons for the recovery of land has obtained leave of the Court or a Justice to appear and defend, he shall enter an appearance, in accordance with the preceding rules of this Order, entitled in the action against the party named in the writ as defendant, and shall forthwith give notice of that appearance to the plaintiff’s solicitor, or, if the plaintiff sues in person, to the plaintiff himself.\n\n(2) In subsequent proceedings, that person shall be named as a party defendant to the action.\n\n","sortOrder":25},{"sectionNumber":"26","sectionType":"section","heading":"Recovery of land, limiting defence","content":"26 Recovery of land, limiting defence\n\n(1) A person appearing to a writ of summons for the recovery of land is at liberty to limit his defence to a part only of the property mentioned in the writ.\n\n(2) Where a person so limits his defence, he shall describe that part of the property to which he limits his defence in his memorandum of appearance or in a notice which shall be:\n\n(a) entitled in the action;\n\n(b) in the form numbered 17 in the First Schedule, with such variations as the circumstances require;\n\n(c) signed by him or his solicitor; and\n\n(d) served on the plaintiff within three days after appearance.\n\n(3) An appearance, where the defence is not limited in accordance with this rule, shall be deemed an appearance to defend for the whole.\n\n  \n\nOrder 12 Default of appearance\n\n1 Default of appearance by infant or person of unsound mind; notice of application\n\n(1) Where an appearance has not been entered to a writ of summons or other originating process for a defendant who is an infant or a person of unsound mind, the plaintiff shall, before further proceeding against the defendant, apply to the Court or a Justice for an order that some proper person be assigned guardian of the defendant, by whom he may appear and defend.\n\n(2) The order shall not be made unless it appears on the hearing of the application:\n\n(a) that the writ of summons or other originating process was duly served; and\n\n(b) that, after the expiration of the time allowed for appearance and at least seven clear days before the day in the notice named for hearing the application:\n\n(i) notice of the application was served upon or left at the place of residence of the person with whom or under whose care the defendant was at the time of serving the writ of summons or other originating process; and\n\n(ii) where the defendant is an infant not residing with or under the care of his father or guardian, and the Court or Justice at the time of hearing the application does not dispense with such service, notice of the application was served upon or left at the place of residence of the father or guardian, if any, of the infant.\n\n(3) Where a guardian has been appointed, he has the same time for appearance after the service of the order on him as if it were a writ of summons.\n\n2 Default of appearance generally\n\nWhere a defendant fails to appear to a writ of summons or other originating process and the plaintiff is desirous of proceeding upon default of appearance under any of the succeeding rules of this Order or under Order 15, rule 1, the plaintiff shall, before taking proceedings upon default, file an affidavit of service, or of notice in lieu of service, as the case may be.\n\n3 Liquidated demand endorsed\n\nWhere the writ of summons is endorsed for a debt or liquidated demand only, and the defendant fails, or all the defendants, if more than one, fail, to appear to the writ, the plaintiff may enter final judgment for a sum not exceeding the sum claimed by the writ, together with interest, if so claimed, to the date of the judgment, and costs.\n\n4 Liquidated demand; several defendants\n\nWhere the writ of summons is endorsed for a debt or liquidated demand only, and there are several defendants, of whom one or more appears or appear to the writ, and another or others of them fails or fail to appear, the plaintiff may enter final judgment, as provided by the last preceding rule, against a defendant who has not appeared, and may issue execution upon that judgment without prejudice to his right to proceed with the action against a defendant who has appeared.\n\n5 Detention of goods\n\n(1) Where the writ is endorsed 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 defendants, if more than one, fail, to appear to the writ, the plaintiff may enter interlocutory judgment.\n\n(2) The value of the goods and the damages, or either of them, as the case may be, in respect of the causes of action disclosed by the endorsement on the writ of summons, shall be assessed by the Registrar unless the Court or a Justice otherwise directs.\n\n(3) The Court or a Justice may order a statement of claim or particulars to be filed before an assessment of damages and may order that, instead of assessment by a Registrar, the value and amount of damages, or either of them, shall be assessed in a way which the Court or Justice directs.\n\n6 Detention of goods; several defendants\n\n(1) Where the writ is endorsed as in the last preceding rule mentioned, and there are several defendants of whom one or more appears or appear to the writ and another or others of them fails or fail to appear, the plaintiff may enter interlocutory judgment against a defendant so failing to appear.\n\n(2) The value of the goods and the damages, or either of them, as the case may be, may be assessed, as against a defendant suffering judgment by default, at the time of the trial of the action or issue in the action against another defendant, unless the Court or a Justice otherwise directs.\n\n(3) The Court or a Justice may order that, instead of an assessment by a Registrar or proceeding to trial, the value and amount of damages, or either of them, shall be assessed in a way which the Court or a Justice directs.\n\n7 Detention of goods, damages and liquidated demand; final and interlocutory judgment\n\nWhere the writ is endorsed with a claim for pecuniary damages, or for detention of goods, with or without a claim for pecuniary damages, and is further endorsed for a debt or liquidated demand, and a defendant fails to appear to the writ, the plaintiff may enter:\n\n(a) final judgment for the debt or liquidated demand, together with interest, if so claimed, to the date of judgment, and costs, against a defendant so failing to appear; and\n\n(b) interlocutory judgment for the value of the goods and the damages, or either of them, as the case may be;\n\nand proceed according to such of the preceding rules of this Order as are applicable.\n\n8 Recovery of land\n\nWhere, in an action for the recovery of land:\n\n(a) an appearance is not entered within the time limited by the writ for appearance; or\n\n(b) an appearance is entered but the defence is limited to part only of the property;\n\nthe 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 to which the defence does not apply, as the case may be.\n\n9 Other claims\n\nWhere the plaintiff has endorsed upon a writ for the recovery of land any other claim, he may enter judgment as in the last preceding rule mentioned for the land and may proceed as in the other rules of this Order mentioned as to that other claim so endorsed.\n\n10 Plaintiff not proceeding — judgment for costs\n\n(1) Where, in a case to which rules 3 to 8 (inclusive) of this Order do not apply, the defendant fails, or all the defendants, if more than one, fail, to appear, and the plaintiff informs the Court that by reason of payment, satisfaction, abatement of nuisance, or for any other reason he does not desire to proceed, he may, by leave of the Court or a Justice, enter judgment for costs.\n\n(2) Leave under the last preceding subrule shall be obtained on summons in Chambers and the summons shall be filed and served in the manner in which the service of the writ or other originating process was effected or in such other manner as the Court or a Justice directs.\n\n11 Setting aside judgment\n\nWhere judgment is entered pursuant to a preceding rule of this Order, the Court or a Justice may set aside or vary that judgment upon just terms.\n\n12 Action in District Registry; time for entering judgment\n\nWhere a defendant fails to appear to a writ of summons or other originating process issued out of a District Registry, and the defendant had the option of entering an appearance either in the District Registry or in the Principal Registry, the plaintiff shall not enter judgment for want of appearance until after such time as a letter posted in Melbourne on the day after the day on which the time for appearance expired ought, in due course of post, to have reached him.\n\n13 Default of appearance in cases not otherwise specially provided for\n\nWhere, in cases not by the rules of this Order otherwise specially provided for, the party served with the writ or other originating process does not appear within the time limited for appearance, upon the filing by the plaintiff of:\n\n(a) a proper affidavit of service; and\n\n(b) where the writ is not specially endorsed under Order 13, rule 1 or accompanied by or endorsed with a statement of claim under Order 21, rule 1 — a statement of claim;\n\nthe proceeding may continue as if that party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 15.\n\n14 Default in Admiralty action\n\nWhere, in an Admiralty action in rem, the defendant does not appear within the time limited for appearance, upon the filing by the plaintiff of:\n\n(a) a proper affidavit of service;\n\n(b) where the writ is not specially endorsed under Order 13, rule 1, or accompanied by or endorsed with a statement of claim under Order 21, rule 1, a statement of claim; and\n\n(c) a certificate of non-appearance;\n\nthe action may, on the expiration of twenty-one days from the service of the writ, be set down for judgment by default.\n\n15 Default in Admiralty action\n\nWhere an Admiralty action in rem, upon default of appearance, comes before a Justice, he may, if satisfied that the plaintiff’s claim is well founded:\n\n(a) pronounce for the claim with or without a reference to a Registrar, or to a Registrar assisted by merchants;\n\n(b) order the property to be appraised and sold, with or without previous notice, and the proceeds to be paid into court; or\n\n(c) make such order as he thinks just.\n\n16 Default of appearance to originating summons\n\n(1) 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 may apply to the Court or a Justice for an appointment for the hearing of the summons.\n\n(2) Upon a certificate that an appearance has not been entered, the Court or Justice shall appoint a time for the hearing of the summons upon such conditions (if any) as it or he thinks fit.\n\n17 Judgment against one not to prejudice right against other defendant\n\nWhere a plaintiff enters judgment under the provisions of this Order against a defendant who fails to appear, that entry of judgment does not, nor does the issue of execution on the judgment, prejudice his right to proceed against another defendant.\n\n  \n\nOrder 13 Summary relief\n\n1 Special endorsement\n\n(1) This Order applies to actions:\n\n(a) in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising:\n\n(i) upon a contract, express or implied (as, for instance, on a bill of exchange, promissory note or cheque, or other simple contract debt);\n\n(ii) on a bond or contract under seal for payment of a liquidated amount of money;\n\n(iii) on a statute, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty;\n\n(iv) on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand; or\n\n(v) on a trust;\n\n(b) in which a landlord seeks to recover possession of land, with or without a claim for rent or mesne profits, against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such a tenant;\n\n(c) in which the plaintiff seeks to recover possession of a specific chattel with or without a claim for hire thereof or for damages for its detention;\n\n(d) in which the plaintiff claims possession of property forming a security for the payment of money; and\n\n(e) for damages, other than actions for libel, slander, malicious prosecution, false imprisonment or breach of promise of marriage, or in which fraud is alleged by the plaintiff.\n\n(2) In an action to which this Order applies, the writ may, at the option of the plaintiff, be specially endorsed with his claim as in the forms numbered 2 and 4 in the First Schedule, with such variations as the circumstances require.\n\n2 Judgment on writ specially endorsed under O. III r. 4\n\n(1) Where the defendant has appeared to a writ of summons in an action to which this Order applies, the plaintiff may, on affidavit made by himself or by another person who can swear positively to the facts, verifying the cause of action and the amount claimed (if a 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 Justice for leave to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to.\n\n(2) The Justice may thereupon, unless the defendant satisfies him that he has a good defence to the action on the merits, or discloses such facts as may be 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.\n\n(3) On the hearing of an application under this rule, the Justice may, if he thinks fit, amend the endorsement on the writ in any manner, whether the writ be sufficiently endorsed or not.\n\n(4) Where, on the hearing of an application under this rule, it appears that a claim which should not have been specially endorsed under this Order has been included in the endorsement on the writ, the Justice may, if he thinks fit, forthwith amend the endorsement by striking out that claim, or may deal with the claim specially endorsed as if no other claim had been included in the endorsement, and allow the action to proceed with respect to the residue of the claim.\n\n(5) Where the plaintiff’s claim is for the delivery up of a specific chattel (with or without a claim for its hire or for damages for its detention), a Justice may make an order for the delivery up of the chattel without giving the defendant an option of retaining it upon paying its assessed value.\n\n3 Application by summons\n\n(1) An application by the plaintiff for leave to enter final judgment under the last preceding rule shall be made by summons returnable not less than three clear days after service.\n\n(2) Copies of the affidavits and exhibits to be used upon the hearing of the summons shall be served with the summons.\n\n4 Defendant may show cause\n\n(1) The defendant may shew cause against the application by affidavit or, except in actions for the recovery of land or for the delivery up of a specific chattel, by offering to bring into Court the sum endorsed on the writ.\n\n(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.\n\n5 Examination of witnesses\n\nThe Justice may, if he thinks fit, order the plaintiff or the defendant, or, in the case of a corporation which is a party, an officer of that corporation, to attend and be examined upon oath, or to produce any leases, deeds, books, papers, or other documents, or copies thereof or extracts therefrom.\n\n6 Judgment for part of claim\n\n(1) Where it appears that the defence set up by the defendant applies only to a part of the plaintiff’s claim, or that a part of his claim is admitted, the plaintiff is entitled to 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 Marshal or Deputy Marshal, the taxation of costs, or otherwise, as the Justice thinks fit.\n\n(2) The defendant may defend as to the residue of the plaintiff’s claim.\n\n7 Where one defendant has good defence, but other not\n\nWhere it appears to the Justice that a defendant has a good defence to, or ought to be permitted to defend, the action and that another defendant has not a good defence and ought not to be permitted to defend, the former defendant may be permitted to defend, and the plaintiff shall be entitled to final judgment against the latter defendant and may issue execution upon that judgment without prejudice to his right to proceed with his action against the former defendant.\n\nLeave to defend may be given unconditionally or subject to such terms as to giving security, time, mode of trial or otherwise as the Justice thinks fit.\n\n9 Summary disposal\n\nUpon the hearing of the application, with the consent of all parties, the Justice may dispose of the whole action in a summary manner.\n\n10 Assessment of damages\n\n(1) Where, in a claim for unliquidated damages, the plaintiff has entered interlocutory judgment, the Registrar shall, subject to the next succeeding subrule, assess the value of the goods claimed or the damages to be awarded.\n\n(2) The Court or a Justice may order that, instead of assessment by a Registrar, the value and amount of damages, or either of them, shall be ascertained in a way which the Court or Justice directs.\n\n11 Directions as to trial\n\n(1) Where leave, whether conditional or unconditional, is given to defend, the Justice may:\n\n(a) give such directions as to the further conduct of the action as might be given on a summons for directions under Order 31;\n\n(b) direct that the affidavit filed by the defendant under this Order shall serve in lieu of defence;\n\n(c) order the action to be set down for trial forthwith; and\n\n(d) define the issues that are to be tried.\n\n(2) Where the plaintiff has obtained leave to enter final judgment subject to a suspension of execution pending the trial of a counterclaim, this rule applies to the counterclaim as if it were an action.\n\n12 Relief from forfeiture\n\nA tenant has the same right to relief, after a judgment under this Order for recovery of land on the ground of forfeiture for non‑payment of rent, as if the judgment had been given after trial.\n\n13 Fresh application\n\nWhere an application has been dismissed on the ground of formal defects in the proceedings or in the evidence, a fresh application may be made on amended proceedings.\n\n  \n\nOrder 14 Summary judgment for specific performance\n\n1 Judgment on writ for specific performance\n\n(1) Where the defendant has appeared to a writ of summons endorsed with a claim for specific performance of a contract in writing for sale or purchase of property, the plaintiff may, on affidavit made by himself or by another person who can swear positively to the facts, verifying the cause of action and stating that in his belief there is no defence to the action, apply to a Justice 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.\n\n(2) The Justice may thereupon, unless the defendant, by affidavit or by his own viva voce evidence, 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.\n\n2 Application by summons\n\n(1) An application by the plaintiff under the last preceding rule shall be made by summons returnable not less than three clear days after service.\n\n(2) Copies of the affidavits and exhibits to be used upon the hearing of the summons shall be served with the summons.\n\n3 Defendant may show cause\n\nThe defendant may shew cause against the application by affidavit.\n\n4 Examination of witnesses\n\nThe Justice may, if he thinks fit, order the plaintiff or the defendant or, in the case of a corporation which is a party, an officer of that corporation, to attend and be examined upon oath, or to produce any leases, deeds, books, papers or other documents, or copies thereof or extracts therefrom.\n\n5 Leave to defend\n\nLeave to defend may be given unconditionally or subject to such terms as to giving security, time, mode of trial, or otherwise, as the Justice thinks fit.\n\n6 Directions as to trial\n\nWhere leave, whether conditional or unconditional, is given to defend, the Justice may:\n\n(a) give directions limiting the time within which pleadings are to be delivered and as to any interlocutory matter; and\n\n(b) order the action to be set down for trial forthwith or at such date as he thinks proper.\n\n7 Summary disposal\n\nUpon the hearing of the application, with the consent of all parties, the Justice may dispose of the whole action in a summary manner.\n\n  \n\nOrder 15 Application for an account\n\n1 Order for account\n\n(a) a writ of summons has been endorsed for an account under Order 3, rule 5, or the endorsement on a writ of summons involves taking an account; and\n\n(b) the defendant fails to appear, or does not, after appearance, by affidavit or otherwise, satisfy the Court or a Justice that there is some preliminary question to be tried;\n\nan order for the proper accounts, with all necessary inquiries and directions, shall forthwith be made.\n\n2 Application, how made\n\n(1) An application for an order under the last preceding rule may be made at any time after the time for appearance has expired.\n\n(2) Where the defendant has failed to appear, the application may be made ex parte.\n\n(3) Where the defendant has appeared, the application shall be made by summons supported by an affidavit stating concisely the grounds of the claim to an account.\n\n3 Judgment without pleadings\n\n(1) In an action in which an account has been taken under the preceding rules of this Order, the plaintiff may, at any time after the account has been taken, apply to the Court by motion for judgment in a summary way.\n\n(2) The Court shall thereupon proceed to hear and determine the action and give such judgment as is just.\n\n4 Evidence\n\nUnless the Court otherwise directs, the motion shall be heard upon affidavit and the Court may give such directions as it thinks just for the trial of any question arising on the motion.\n\n5 Action may be directed to proceed in usual course\n\nOn an application for summary judgment under the two last preceding rules, the Court may refuse to give judgment on the motion and may direct the action to proceed in the usual manner.\n\n  \n\nOrder 16 Parties\n\nI Generally\n\n1 Persons claiming jointly, severally or in the alternative may be plaintiffs\n\n(a) a right to relief in respect of, or arising out of, the same transaction or series of transactions is alleged to exist in more than one person, whether jointly, severally or in the alternative; and\n\n(b) if those persons brought separate proceedings a common question of law or fact would arise;\n\nthose persons may be joined in one proceeding as plaintiffs.\n\n(2) Where, upon the application of a defendant, it appears that the joinder may embarrass or delay the trial or hearing, the Court or a Justice may order separate trials or hearings, or 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 may be entitled to, without any amendment.\n\n(3) The defendant, though unsuccessful, is entitled to his costs occasioned by so joining a person who is not found entitled to relief, unless the Court or a Justice, in disposing of the costs, otherwise directs.\n\n2 No other proceeding to be brought for same claim\n\nAnother proceeding shall not be brought against the defendant by a person so joined as plaintiff in respect of the same cause of action unless by leave of the Court or a Justice.\n\n3 Proceeding in name of wrong plaintiff\n\nWhere a proceeding 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 Justice, if satisfied that:\n\n(a) it has been so commenced through a bona fide mistake; and\n\n(b) it is necessary for the determination of the real matter in dispute so to do;\n\nmay order another person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as are just.\n\n4 Misjoinder and non-joinder\n\n(1) A proceeding shall not be defeated by reason of misjoinder or non‑joinder of parties, and the Court or a Justice may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it or him.\n\n(2) The Court or a Justice may:\n\n(a) at any stage of the proceedings;\n\n(b) either upon or without the application of a party; and\n\n(c) on such terms as appear to the Court or a Justice to be just;\n\norder that the names of parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court or Justice may be necessary in order to enable the Court or Justice effectually and completely to adjudicate upon and settle all the questions arising, be added.\n\n(3) A party whose name is so added as defendant shall be served with the amended writ of summons or other originating process, or notice of the amended writ or other process in lieu of service, as the case may be, in accordance with this Order, or in such manner as is prescribed by a special order, and the proceedings as against that party shall be deemed to have begun only on the service of the writ or other originating process or notice.\n\n5 Consent of plaintiff or next friend\n\nA person shall not be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under a disability, without his own consent in writing.\n\n6 Counterclaim — misjoinder\n\nWhere a person has been improperly or unnecessarily joined as a co-plaintiff, the defendant may rely upon a counterclaim or set-off against the plaintiffs properly joined and shall not be deemed thereby to have waived any objection to the misjoinder.\n\n7 All persons may be joined as defendants\n\nWhere a right to relief is alleged to exist against more than one person, whether jointly, severally or in the alternative, those persons may be joined as defendants and judgment may be given against such one or more of them as are found to be liable, according to their respective liabilities, without any amendment.\n\n8 Defendant need not be interested in all the relief\n\n(1) It is not necessary that every defendant be interested as to all the relief prayed for, or as to every cause of action included in a proceeding against him.\n\n(2) The Court or a Justice may make such order as appears just to prevent a defendant from being embarrassed, or put to expense, by being required to attend proceedings in which he has no interest.\n\n9 Joinder of persons severally, or jointly and severally liable\n\nThe plaintiff may, at his option, join as parties in the same proceeding 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.\n\n10 Plaintiff in doubt as to person from whom redress is to be sought\n\nWhere the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in accordance with these rules or as the Court or a Justice may direct, join two or more persons as defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, and as to what relief the plaintiff is entitled to, may be determined in the proceedings as between all parties.\n\n11 Trustees, executors etc may sue and be sued in respect of estate\n\n(1) Trustees, executors and administrators may sue and be sued in respect of the property or estate which they hold as such, without joining any of the persons beneficially interested in the trust property or estate, and shall be considered as representing those persons.\n\n(2) The Court or a Justice may, at any stage of the proceedings, order any of the persons beneficially interested to be made parties, either in addition to, or in lieu of, the previously existing parties.\n\n(3) This rule extends and applies to trustees, executors, and administrators suing or sued in proceedings to enforce a security by foreclosure or otherwise.\n\n12 Numerous persons\n\nWhere there are seven or more persons having the same interest, one or more of those persons may sue or be sued, or may be authorized by the Court or a Justice to defend on behalf of, or for the benefit of, all persons so interested.\n\n13 Power to approve compromise\n\n(a) a compromise is proposed in proceedings concerning:\n\n(i) the estate of a deceased person;\n\n(ii) property subject to a trust; or\n\n(iii) the construction of a written instrument;\n\n(b) some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons); and\n\n(c) there is some other person in the same interest before the Court who assents to the compromise, or on whose behalf the Court sanctions a compromise, or the absent persons are represented by a person appointed under rule 44 of this Order who so assents;\n\nthe Court or Justice, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons.\n\n(2) The absent persons shall be bound by the order unless it has been obtained by fraud or non-disclosure of material facts.\n\n14 Application to add or strike out\n\nAn application to add, strike out or substitute a plaintiff or defendant may be made to the Court or a Justice at any time before the trial or hearing by motion or summons, or at the trial or hearing in a summary manner.\n\n15 Where defendant added\n\n(1) Where a defendant is added or substituted, the writ of summons or other originating process shall be amended accordingly.\n\n(2) The plaintiff shall, unless otherwise ordered by the Court or a Justice:\n\n(a) file a copy of the writ or other originating process as amended; and\n\n(b) serve the new defendant and all other parties with the amended writ or other originating process, or notice in lieu of service of the amended writ or other process, in the same manner as original defendants are served.\n\n(3) The proceedings shall be continued as if the new defendant had originally been made a defendant.\n\n16 Actions under Act and Convention\n\nIn an action under the Carriage by Air Act 1935 and the Convention set out in the Schedule to that Act, a High Contracting Party to the Convention who, for the purposes of that action, and by virtue of that Act, is deemed to have submitted to the jurisdiction of the Court, may, subject to and in accordance with these rules, be made a defendant.\n\n17 Initial letters may be used\n\n(1) Subject to the next succeeding subrule, where, in any proceedings, a person (including a party to the proceedings) is referred to in a writ, pleading or other document, the first name or other name or names (other than the surname) of that person may be designated in that writ, pleading or other document by an initial letter or letters or other contraction.\n\n(2) Where the name of a person is so designated, it shall be averred in the writ, pleading or other document that that name is unknown to the party using the initial letter or letters or other contraction.\n\nII Persons under disability\n\n18 Proceedings by infants\n\n(1) An infant may sue as plaintiff by his next friend.\n\n(2) An infant may defend in a proceeding by his guardian appointed for that purpose.\n\n19 Persons of unsound mind\n\n(1) A person of unsound mind may sue as plaintiff in a proceeding by the committee, if any, of his person or estate, as the case may be, or, where there is no such committee, by his next friend.\n\n(2) A person of unsound mind may defend by his committee, if any, or, where there is no such committee, by his guardian appointed for that purpose.\n\n20 Appearance by infant\n\n(1) An infant shall not enter an appearance except by his guardian ad litem.\n\n(2) An order for the appointment of the guardian is not necessary, but the solicitor applying to enter the appearance shall make and file an affidavit in the form numbered 23 in the First Schedule, with such variations as the circumstances require.\n\n21 Guardian ad litem\n\n(1) Where the appointment of a special guardian is not provided for, an infant served with a petition, notice of motion or summons shall appear on the hearing thereof by a guardian ad litem.\n\n(2) An order for the appointment of the guardian ad litem is not necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last preceding rule.\n\n22 Other cases\n\nWhere proceedings are directed to be continued by or against an infant, or an infant may attend proceedings, he shall appear as in the last preceding rule.\n\n23 Next friend or relator\n\nBefore the name of a person is used as next friend of an infant or other party, or as relator, that person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed in the Principal Registry or, where the proceeding is pending in a District Registry, in that District Registry.\n\n24 Consent of persons under disability to procedure\n\nIn proceedings to which an infant or person of unsound mind, or person under any other disability, is a party, a consent as to the mode of taking evidence or as to any other procedure shall, if given with the approval of the Court or a Justice by the next friend, guardian, committee or other person acting on behalf of the person under disability, have the same force and effect as if that party were under no disability and had given that consent.\n\n25 Removal and appointment of next friend or guardian ad litem\n\n(1) The Court or a Justice may, for sufficient cause shewn, remove a next friend or guardian ad litem.\n\n(2) Where, for any reason, there is not a next friend or guardian ad litem of an infant, the Court or a Justice may appoint a fit person, with his own consent, to be next friend or guardian ad litem of the infant.\n\nIII Proceedings by and against poor persons\n\n26 Suing or defending as poor person\n\nThe Court or a Justice may allow a person to sue or defend in, or be a party to, a proceeding in the Court as a poor person on proof:\n\n(a) that, excluding his wearing apparel, tools of trade and the subject-matter of the proceeding, he is not worth a sum exceeding Two hundred dollars or, in special circumstances, a sum not exceeding Four hundred dollars;\n\n(b) that his usual income from all sources does not exceed Eighteen dollars a week; and\n\n(c) that he has reasonable grounds for suing, defending or becoming a party.\n\n","sortOrder":26},{"sectionNumber":"27","sectionType":"section","heading":"Disqualification","content":"27 Disqualification\n\nExcept under special circumstances, a person may not sue, defend or become a party as a poor person if he has directly or indirectly paid or agreed to pay a sum of money, or has given or agreed to give a security, to a legal practitioner or to another person for the conduct of the proceedings in the Court.\n\n","sortOrder":27},{"sectionNumber":"28","sectionType":"section","heading":"Case before counsel","content":"28 Case before counsel\n\nWhere a person desires to sue, defend or become a party in proceedings as a poor person, he shall lay a case before counsel for his opinion as to whether or not he has reasonable grounds for suing, defending or becoming a party, as the case may be.\n\n","sortOrder":28},{"sectionNumber":"29","sectionType":"section","heading":"Affidavit in support of application","content":"29 Affidavit in support of application\n\nA person may not sue, defend or become a party as a poor person unless he or his solicitor produces to the Court or Justice to whom the application is made the case laid before counsel for his opinion and his opinion on the case with an affidavit (referring to the case as an exhibit) of the party or his solicitor which:\n\n(a) states that the case contains a full and true statement of all the material facts to the best of his knowledge and belief;\n\n(b) denies that the applicant has directly or indirectly paid or agreed to pay a sum of money, or has given or agreed to give a security, to a legal practitioner or to another person for the conduct of the proceedings in the Court or states fully the special circumstances relied upon in excuse; and\n\n(c) gives full information and particulars as to the assets and liabilities of the applicant, his income from all sources, the persons dependent upon him and the nature and extent of the dependency of each of them respectively.\n\n","sortOrder":29},{"sectionNumber":"30","sectionType":"section","heading":"No Court fees payable","content":"30 No Court fees payable\n\nA person allowed to sue, defend or become a party as a poor person is not liable to pay Court fees.\n\n","sortOrder":30},{"sectionNumber":"31","sectionType":"section","heading":"Order to be filed","content":"31 Order to be filed\n\nUpon obtaining the order allowing him to sue, defend or become a party as a poor person, the applicant or his solicitor shall, before taking any other step in the proceeding, file the order in the Principal Registry or, where the proceeding has been or is intended to be commenced in a District Registry, in that District Registry.\n\n","sortOrder":31},{"sectionNumber":"32","sectionType":"section","heading":"Memorandum of filing","content":"32 Memorandum of filing\n\n(1) On the filing of the order, a memorandum of the filing bearing the seal of the Registry where the order is filed shall be issued to the applicant or his solicitor.\n\n(2) In subsequent proceedings the production of the memorandum is sufficient evidence that the order has been duly filed.\n\n","sortOrder":32},{"sectionNumber":"33","sectionType":"section","heading":"Assignment of counsel or solicitor","content":"33 Assignment of counsel or solicitor\n\n(1) Where a person is allowed to sue, defend or become a party as a poor person, the Court or a Justice may, if necessary, assign counsel or a solicitor, or both, to assist him.\n\n(2) Counsel or solicitor so assigned may not refuse or discontinue his assistance unless he satisfies the Court or a Justice that he has some good reason for so refusing or discontinuing or unless, in the case of counsel, he satisfies the solicitor that other counsel can be briefed in the proceedings without prejudice to the conduct of the proceedings.\n\n(3) Except as provided in this Order, a fee is not payable by a poor person to his assigned counsel or solicitor.\n\n","sortOrder":33},{"sectionNumber":"34","sectionType":"section","heading":"Prohibition of fees","content":"34 Prohibition of fees\n\n(1) Where a person intends to apply to be allowed to sue, defend or become a party as a poor person, a person who, with knowledge of that intention, takes or agrees to take or seeks to obtain from him a payment, fee, profit or reward for the conduct of the proceedings in the Court, is guilty of contempt of Court.\n\n(2) While a person sues, defends or is a party as a poor person, a person who, except as provided by this Order, takes or agrees to take or seeks to obtain from him a payment, fee, profit or reward for the conduct of the proceedings in the Court is guilty of contempt of Court.\n\n(3) If a poor person makes or gives or agrees to make or give a payment, fee, profit or reward for the conduct of the proceedings in the Court otherwise than as provided by this Order, an order shall forthwith be made revoking the order allowing him to sue, defend or be a party as a poor person, as the case may be, and he may not afterwards again in the same matter sue, defend or be a party as a poor person unless otherwise ordered.\n\n35 Revoking order\n\n(1) The Court or a Justice may at any time, and whether or not an application is made by another party or person for that purpose, revoke the order allowing a person to sue or defend or be a party as a poor person.\n\n(2) Upon the revocation, the poor person is not entitled to the benefit of this Order in a proceeding to which the order relates unless otherwise ordered.\n\n","sortOrder":34},{"sectionNumber":"36","sectionType":"section","heading":"Settlement etc and discharge of solicitor","content":"36 Settlement etc and discharge of solicitor\n\n(1) A poor person, a solicitor conducting the proceedings for him or counsel briefed on his behalf shall not, whether before or after the commencement of the proceedings, enter into a settlement or compromise of the proceedings, or discontinue them, without the leave of the Court or a Justice.\n\n(2) A poor person shall not discharge a solicitor or counsel acting for him without the leave of the Court or a Justice.\n\n","sortOrder":35},{"sectionNumber":"37","sectionType":"section","heading":"Alteration in means of poor person","content":"37 Alteration in means of poor person\n\n(1) Where a poor person becomes possessed of or entitled to assets or income beyond those stated in the affadavit made by him or his solicitor in pursuance of rule 29 of this Order, he shall forthwith and from time to time report the matter to the solicitor conducting the proceedings for him.\n\n(2) When the matter comes to the knowledge of the solicitor, whether by means of the report or otherwise, he shall forthwith make and file an affidavit embodying that information.\n\n","sortOrder":36},{"sectionNumber":"38","sectionType":"section","heading":"Solicitor to sign notices etc","content":"38 Solicitor to sign notices etc\n\n(1) Except for the discharge of his solicitor, a poor person, or a person acting on his behalf, shall not:\n\n(a) serve a notice of motion;\n\n(b) make an application;\n\n(c) issue a summons; or\n\n(d) present a petition;\n\nunless it is signed by his solicitor.\n\n(2) The solicitor assigned to a poor person shall take care that, without good cause:\n\n(a) a notice is not served;\n\n(b) an application is not made;\n\n(c) a summons is not issued; or\n\n(d) a petition is not presented.\n\n","sortOrder":37},{"sectionNumber":"39","sectionType":"section","heading":"Failure to proceed","content":"39 Failure to proceed\n\n(1) Notwithstanding that an order has not been made revoking the order allowing a poor person to sue, defend or be a party as a poor person, where he omits to proceed, he may be called upon by notice of motion or summons to shew cause to the Court or a Justice why he should not pay costs and why further proceedings should not be stayed until the costs have been paid.\n\n(2) On the hearing of the notice of motion or summons, the Court or a Justice may make such order as seems just.\n\n","sortOrder":38},{"sectionNumber":"40","sectionType":"section","heading":"Costs — poor persons","content":"40 Costs — poor persons\n\n(1) A poor person is not entitled to receive costs from another party unless the Court or a Justice orders that he is so entitled.\n\n(2) The Court or a Justice may order the out-of-pocket expenses of a poor person to be paid by another party and, where such an order is made, it shall be deemed to include all out-of-pocket expenses properly incurred in the course of the proceedings but not office expenses or fees of counsel.\n\n(3) Where it appears to the Court or a Justice that another party has acted unreasonably in bringing, defending or intervening in the proceedings or in his conduct of them, or that the special circumstances of the case require it, the Court or a Justice may order that other party to pay the costs of a poor person, including profit costs or a proportion, or sum of money in respect, of profit costs, in addition to out-of-pocket expenses properly incurred in the course of the proceedings.\n\n(4) Where it appears to the Court or a Justice that proceedings are of such length or difficulty as to throw an unusual burden on the solicitor acting for a poor person, the Court or a Justice may order the other party to pay, in addition to out-of-pocket expenses properly incurred in the course of the proceedings, such sum as the Court or a Justice thinks fit in respect of that unusual burden.\n\n(5) Where an order to pay costs is made under either of the two last preceding subrules of this rule, the order shall not be enforced without leave of the Court or a Justice, and the Court or a Justice may refuse leave if satisfied by the party ordered to pay the costs that he has not the means (including insurance or other indemnity) to pay them.\n\n(6) Out-of-pocket expenses and other costs ordered to be paid to a poor person shall, unless the order fixes their amount or the Court or a Justice otherwise directs, be taxed as in other cases.\n\n","sortOrder":39},{"sectionNumber":"41","sectionType":"section","heading":"Liability of poor person for costs","content":"41 Liability of poor person for costs\n\nUnless the Court or a Justice otherwise orders, a poor person is not liable to pay costs to another party.\n\n","sortOrder":40},{"sectionNumber":"42","sectionType":"section","heading":"Costs where order obtained by fraud","content":"42 Costs where order obtained by fraud\n\n(1) Where it appears to the Court or a Justice that the order allowing a person to sue or defend or be a party as a poor person was obtained by fraud or misrepresentation, the Court or Justice may order that person to pay the costs of another party.\n\n(2) Where such an order is made, the costs shall be taxed as if the party ordered to pay them were not a person in whose favour an order allowing him to sue, defend or be a party as a poor person had been made.\n\n","sortOrder":41},{"sectionNumber":"43","sectionType":"section","heading":"Costs to solicitor from proceeds of action","content":"43 Costs to solicitor from proceeds of action\n\n(1) Subject to the next succeeding subrule, the Court or a Justice may order to be paid to the solicitor for a poor person out of money recovered by that poor person, or may charge in favour of the solicitor upon real or personal property recovered by the poor person, such sum in respect of costs (including a fee to counsel which is reasonable in the circumstances) 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 may be recovered by way of costs from another party, or such other sum in respect of costs as to the Court or a Justice seems fit.\n\n(2) The total amount so to be paid out for profit costs, or so charged upon property for profit costs, shall not in either case exceed one fourth of the amount or value recovered and remaining after the deduction from that amount or value of all proper disbursements made by the solicitor.\n\n(3) In this rule, money recovered and property recovered include respectively money recovered and property recovered by virtue of a settlement or compromise.\n\nIV Administration and execution of trusts\n\n","sortOrder":42},{"sectionNumber":"44","sectionType":"section","heading":"Appointment of person to represent next of kin or a class","content":"44 Appointment of person to represent next of kin or a class\n\n(a) the right of the next of kin, or a class, depends upon the construction which the Court or a Justice may put upon an instrument; and\n\n(b) it is not known, or is difficult to ascertain, who is or are that next of kin or class; and\n\n(c) the Court or a Justice considers that, in order to save expense or for some other reason, it is convenient to have the questions of construction determined before that next of kin or class have been ascertained by means of inquiry or otherwise;\n\nthe Court or Justice may appoint a person to represent the next of kin or class, and the judgment of the Court or Justice in the presence of that person is binding upon the next of kin or class so represented.\n\n(2) In any other case where next of kin, or a class, is interested in proceedings, the Court or Justice may (if it appears expedient by reason of the nature and extent of the interest of, and the difficulty of ascertaining, those persons, or any of them, or in order to save expense) appoint a person to represent all or any of the next of kin or class, and the judgment or order of the Court or Justice in the presence of the person so appointed is binding upon the persons so represented.\n\n","sortOrder":43},{"sectionNumber":"45","sectionType":"section","heading":"Residuary legatee and next of kin","content":"45 Residuary legatee and next of kin\n\nWhere a residuary legatee or next of kin is entitled to a judgment or order for the administration of the personal estate of a deceased person, he may have the judgment or order without serving the remaining residuary legatees or next of kin.\n\n","sortOrder":44},{"sectionNumber":"46","sectionType":"section","heading":"Person interested in proceeds of realty","content":"46 Person interested in proceeds of realty\n\n(a) a legatee is interested in a legacy charged upon real estate; or\n\n(b) a person is interested in the proceeds of real estate directed to be sold;\n\nand that legatee or that person is entitled to a judgment or order for the administration of the estate of a deceased person, the legatee or person may have the judgment or order without serving any other legatee or person interested in the proceeds of the estate.\n\n","sortOrder":45},{"sectionNumber":"47","sectionType":"section","heading":"Residuary devisee or next of kin","content":"47 Residuary devisee or next of kin\n\nWhere a residuary devisee or next of kin is entitled to a judgment or order for the administration of the estate of a deceased person, he may have that judgment or order without serving a co-residuary devisee or other next of kin.\n\n","sortOrder":46},{"sectionNumber":"48","sectionType":"section","heading":"Cestuis que trust","content":"48 Cestuis que trust\n\nWhere one of several cestuis que trust under a deed or instrument is entitled to a judgment or order for the execution of the trusts of the deed or instrument, he may have that judgment or order without serving any other cestui que trust.\n\n","sortOrder":47},{"sectionNumber":"49","sectionType":"section","heading":"Waste","content":"49 Waste\n\nIn proceedings for the prevention of waste or otherwise for the protection of property, one person may sue on behalf of himself and other persons having the same interest.\n\n","sortOrder":48},{"sectionNumber":"50","sectionType":"section","heading":"Executor, administrator or trustee","content":"50 Executor, administrator or trustee\n\nWhere an executor, administrator or trustee is entitled to 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, he may have that judgment or order.\n\n","sortOrder":49},{"sectionNumber":"51","sectionType":"section","heading":"Notice of judgment to be served on certain persons and its effect","content":"51 Notice of judgment to be served on certain persons and its effect\n\n(1) Where, in a proceeding for the administration of the estate of a deceased person or the execution of the trusts of a deed or instrument, or for the partition or sale of hereditaments, a judgment or order has been pronounced or made:\n\n(a) under Order 15 or Order 34; or\n\n(b) affecting the right or interests of persons not parties to the action;\n\nthe Court or a Justice may direct that persons interested in the estate or under the trust or in the hereditaments shall be served with notice of the judgment or order.\n\n(2) After service with notice of the judgment or order, those persons shall be bound by the proceedings in the same manner as if they had originally been made parties, and they may attend the proceedings under the judgment or order.\n\n(3) A person so served may, within twenty-eight days after the service, apply to the Court or Justice to set aside or vary the judgment or order.\n\n","sortOrder":50},{"sectionNumber":"52","sectionType":"section","heading":"Order for liberty to attend not necessary, but appearance to be entered","content":"52 Order for liberty to attend not necessary, but appearance to be entered\n\nA person served with notice of a judgment or order need not obtain an order for liberty to attend the proceedings under that judgment or order, but may attend the proceedings upon entering an appearance in the same manner, and subject to the same provisions, as a defendant entering an appearance.\n\n","sortOrder":51},{"sectionNumber":"53","sectionType":"section","heading":"Memorandum of service to be entered in the Registry","content":"53 Memorandum of service to be entered in the Registry\n\nA memorandum of the service upon a person of notice of a judgment or order under rule 51 of this Order shall, upon due proof by affidavit of that service, be entered in the Registry in which the proceeding is pending.\n\n","sortOrder":52},{"sectionNumber":"54","sectionType":"section","heading":"Form of memorandum","content":"54 Form of memorandum\n\nNotice of a judgment or order served pursuant to rule 51 of this Order shall be entitled in the proceeding, and shall be endorsed with a memorandum in the form numbered 36 in the First Schedule.\n\n","sortOrder":53},{"sectionNumber":"55","sectionType":"section","heading":"Service of notice of judgment on infants etc","content":"55 Service of notice of judgment on infants etc\n\nService of a judgment or order, or of notice of a judgment or order, shall be effected on an infant or a person of unsound mind in the same manner as in the case of a writ of summons.\n\n","sortOrder":54},{"sectionNumber":"56","sectionType":"section","heading":"Court may appoint or dispense with legal personal representative","content":"56 Court may appoint or dispense with legal personal representative\n\n(1) Where in a proceeding it appears to the Court or a Justice that a deceased person who was interested has no legal personal representative, the Court or Justice may (on such notice to such persons, if any, as the Court or Justice thinks fit, either specially or generally by public advertisement) proceed in the absence of a person representing the estate of the deceased person, or may appoint some person to represent his estate for the purposes of the proceeding.\n\n(2) An order made under this rule, and an order consequent on that order, 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 proceeding.\n\n","sortOrder":55},{"sectionNumber":"57","sectionType":"section","heading":"Administration — appearance at chambers in respect of creditor’s claims","content":"57 Administration — appearance at chambers in respect of creditor’s claims\n\n(1) In a proceeding for the administration of the estate of a deceased person, a party (other than the executor or administrator) may not, unless by leave of the Court or a Justice, appear either in Court or in Chambers on the claim of a person, not a party to the proceeding, against the estate of the deceased person in respect of a debt or liability.\n\n(2) The Court or a Justice may direct or allow another party to the proceeding to appear, either in addition to or in place of the executor or administrator, upon such terms as to costs, or otherwise, as it or he thinks fit.\n\n  \n\nOrder 17 Third party procedure\n\n1 Third party procedure\n\n(1) Where in an action a defendant claims as against a person not already a party to the action (in this Order called the third party):\n\n(a) that he is entitled to contribution or indemnity;\n\n(b) that he is entitled to relief or a remedy relating to or connected with the original subject-matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or\n\n(c) that a question or issue relating to or connected with that subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any of them;\n\nthe Court or a Justice may give leave to the defendant to issue and serve a third party notice.\n\n(2) The Court or Justice may give leave to issue and serve a third party notice on an ex parte application supported by affidavit or, where the Court or Justice directs a summons to the plaintiff to be issued, upon the hearing of the summons.\n\n2 Form and issue of notice\n\n(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.\n\n(2) The notice shall be in accordance with form numbered 24 or form numbered 25 in the First Schedule, with such variations as the circumstances require, and shall be sealed and served on the third party in the same manner as a writ of summons is sealed and served.\n\n(3) A copy of the notice shall be filed in the Registry in which the action is then pending.\n\n(4) The notice shall, unless otherwise ordered by the Court or Justice, be served within the time limited for delivering the defence or, where the notice is served by a defendant to a counterclaim, the reply, and with it there shall be served a copy of the writ of summons and of any pleadings delivered.\n\n3 Effect of notice\n\nThe 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 a claim made against him, and otherwise, as if he had been duly sued in the ordinary way by the defendant.\n\n4 Appearance\n\n(1) The third party may enter an appearance in the action within such number of days from service of the notice upon him as is directed by the Court or Justice and specified in the notice.\n\n(2) The third party shall give notice of appearance to the plaintiff and the defendant and any other party to the action in the same manner as if the third party notice were a writ of summons.\n\n(3) Where a third party fails to appear within the time directed, he may apply to the Court or Justice for leave to appear, and that leave may be given upon such terms, if any, as the Court or Justice thinks fit.\n\n5 Default by third party\n\nIf a third party duly served with a third party notice does not enter an appearance or makes default in delivering or pleading which he has been ordered to deliver:\n\n(a) he shall be deemed to admit the validity of, and shall be bound by, a judgment given in the action (whether by consent or otherwise) and by a decision in the action on any question specified in the notice; and\n\n(b) where contribution, indemnity or other relief or remedy is claimed against him in the notice, he shall be deemed to admit his liability in respect of that contribution, indemnity or other relief or remedy.\n\n6 Where judgment by default against defendant\n\n(1) Where a third party makes default in entering an appearance or delivering a pleading which he has been ordered to deliver and the defendant giving the notice suffers judgment by default, that defendant may, at any time, after satisfaction of the judgment against himself, or before such satisfaction by leave of the Court or a Justice:\n\n(a) enter judgment against the third party to the extent of any contribution or indemnity claimed in the third party notice; and\n\n(b) by leave of the Court or a Justice, enter such judgment in respect of any other relief or remedy claimed as the Court or a Justice directs.\n\n(2) The Court or a Justice may set aside or vary a judgment entered against a third party under this rule upon such terms as are just.\n\n7 Third party directions\n\n(1) If a 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 Justice for directions.\n\n(2) The Court or Justice may:\n\n(a) where the liability of the third party to the defendant giving the notice is established on the hearing of the application — order such judgment as the nature of the case requires to be entered against the third party in favour of the defendant giving the notice;\n\n(b) if satisfied:\n\n(i) that there is a question or issue proper to be tried as between the plaintiff and the defendant and the third party, or between any of them, as to the liability of the defendant to the plaintiff or as to the liability of the third party to make any contribution or indemnity claimed, in whole or in part, or as to other relief or remedy claimed in the notice by the defendant; or\n\n(ii) that a question or issue stated in the notice should be determined not only as between the plaintiff and the defendant but as between the plaintiff, the defendant and the third party, or any of them;\n\norder that question or issue to be tried in such manner as the Court or Justice directs; or\n\n(c) dismiss the application.\n\n(3) Directions given pursuant to this rule may:\n\n(a) be given either before or after any judgment has been signed by the plaintiff against the defendant in the action;\n\n(b) be varied from time to time; and\n\n(c) be rescinded.\n\n(4) The third party proceedings may at any time be set aside by the Court or a Justice.\n\nThe Court or a Justice, upon the hearing of the application for directions, may, if it appears desirable to do so:\n\n(a) 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 in the trial as may be just; and\n\n(b) 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 Justice appears 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.\n\n9 At trial\n\n(1) Where the action is tried, the Justice who tries the action may, at or after the trial:\n\n(a) 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\n\n(b) 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 brought against him by the defendant.\n\n(2) Execution shall not be issued without leave of the Court or a Justice until after satisfaction by the defendant of the judgment against him.\n\n(3) Where the action is decided otherwise than by trial, the Court or Justice 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.\n\n10 Costs\n\nThe Court or Justice may decide 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.\n\n11 Fourth and subsequent parties\n\n(1) Where a third party makes, as against a person not already a party to the action, such a claim as is defined in rule 1 of this Order, the provisions of this Order regulating the rights and procedure as between the defendant and the third party apply, mutatis mutandis, as between the third party and that other person, and the Court or Justice may give leave to the third party to issue a third party notice, and the preceding rules of this Order apply, mutatis mutandis, and the expressions third party notice and third party apply to and include a notice so issued and a person served with the notice, respectively.\n\n(2) Where a person served with a notice under this rule by a third party in turn makes such a claim as is defined in rule 1 of this Order against another person not already a party to the action, this Order, as applied by this rule, has effect with respect to that other person and any other further person or persons so served and so on successively.\n\n12 Co-defendants\n\n(1) Where a defendant claims against another defendant:\n\n(a) that he is entitled to contribution or indemnity;\n\n(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or\n\n(c) that a question or issue relating to or connected with that subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant making the claim and should properly be determined, not only as between the plaintiff and the defendant making the claim, but as between the plaintiff and that defendant and another defendant or between any of them;\n\nthe defendant making the claim may, without leave, issue and serve on that other defendant a notice making that claim or specifying that question or issue.\n\n(2) An appearance to the notice is not necessary and the same procedure shall be adopted for the determination of that claim, question or issue between the defendants as would be appropriate under this Order if such other defendant were a third party.\n\n(3) This rule does not prejudice the rights of the plaintiff against any defendant to the action.\n\n13 Counterclaim\n\nWhere a defendant makes a counterclaim against the plaintiff or against the plaintiff and other persons, the provisions of this Order apply as if the plaintiff or the plaintiffs and those other persons were defendants, and the defendant a plaintiff, in an action.\n\n  \n\nOrder 18 Change of parties by death etc\n\n1 Proceeding not abated where cause of action continued\n\n(1) Where the cause of action survives or continues, a proceeding does not become abated by reason of the marriage, death or bankruptcy of a party, and does not become defective by the assignment, creation or devolution of an estate or title pendente lite.\n\n(2) Whether the cause of action survives or continues or not, there is no abatement of action by reason of the death of a party between the verdict of a jury, or finding of issues of fact by a jury, and the judgment, and judgment may in such case be entered, notwithstanding the death.\n\n2 Order to carry on proceeding\n\n(a) by reason of marriage, death, bankruptcy or any other event occurring after the commencement of a proceeding and causing a change or transmission of interest or liability; or\n\n(b) by reason of a person interested coming into existence after the commencement of the proceeding;\n\nit becomes necessary or desirable that a person not already a party should be made a party or that a person already a party should be made a party in another capacity, an order that the proceeding be carried on between the continuing parties and that new party or parties may be obtained ex parte either by a continuing party or by a person who may be made a party on application to the Court or a Justice upon proof of:\n\n(c) the change or transmission of interest or liability; or\n\n(d) the person interested having come into existence.\n\n(2) Where the party applying to be made a party as a plaintiff is an infant, the application shall be made by him by his next friend.\n\n3 Service of order to continue proceeding\n\n(1) An order obtained under the last preceding rule shall, unless the Court or a Justice otherwise directs, be served upon:\n\n(a) the continuing party or parties or his or their solicitor or solicitors; and\n\n(b) unless the person making the application be himself the only new party — upon each new party.\n\n(2) Subject to the next two succeeding rules, the order shall, from the time of service, be binding on the persons served with the order, and a person so served who is not already a party shall enter an appearance to the order within the same time and in the same manner as if he had been served with the writ of summons or other originating process by which the proceeding was commenced.\n\n(3) Before the service of the order, it shall be endorsed with a notice to every person to be served with it who is not already a party that an appearance must be entered by him and of the time within which, and the manner in which, the appearance must be entered.\n\n4 Application to discharge order by person under no disability or having a guardian\n\nWhere a person who:\n\n(a) is not under a disability;\n\n(b) is not under a disability, other than coverture; or\n\n(c) is under a disability, other than coverture, but has a guardian ad litem in the proceeding;\n\nis served with an order obtained under rule 2 of this Order, that person or his guardian ad litem, as the case may be, may apply to the Court or a Justice to discharge or vary that order at any time within fourteen days from the service of the order.\n\n5 By person under disability having no guardian\n\n(1) Where a person who is under a disability, other than coverture, and has not a guardian ad litem in the proceeding, is served with an order obtained under rule 2 of this Order, that person may, at any time within fourteen days from the appointment of a guardian ad litem for that person, apply by his guardian ad litem to the Court or a Justice to discharge or vary that order.\n\n(2) Until the period of fourteen days has expired, the order shall have no force or effect as against that person.\n\n6 Death of sole plaintiff or defendant\n\n(a) the plaintiff or defendant in a proceeding dies and the cause of action survives; and\n\n(b) the person entitled to proceed fails to proceed;\n\nthe defendant, or the person against whom the proceeding 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.\n\n(2) In default of such proceeding, judgment may be entered, with or without costs, for the defendant or, as the case may be, for the person against whom the proceeding might have been continued.\n\n(3) Where judgment is so continued and the plaintiff has died, execution may issue as in the case provided for by Order 45, rule 2.\n\n7 Solicitor of plaintiff to give notice of abatement\n\n(1) Where a proceeding becomes abated or there is a change of interest as provided for by this Order, the solicitor for the plaintiff or person having the conduct of the proceeding, as the case may be, shall certify the fact to the proper officer.\n\n(2) The proper officer shall cause an entry of the abatement or the change of interest, as the case may be, to be made in the Cause Book or in the Court Book, as the case may be, opposite to the name of the proceeding.\n\n8 Abated proceeding to be struck out\n\nWhere a proceeding has been standing for one year in the Cause Book or the Court Book marked as “abated”, or standing over generally, the proceeding shall, at the expiration of the year, be struck out of the Cause Book or the Court Book, as the case may be.\n\n  \n\nOrder 19 Joinder of causes of action\n\n1 All causes of action may be joined\n\n(1) Subject to this rule and the succeeding rules of this Order, the plaintiff may join in the same action several causes of action.\n\n(2) Where it appears to the Court or a Justice that those causes of action, or any of them, cannot be conveniently tried or disposed of together, the Court or Justice may:\n\n(a) order separate trials of any of those causes of action to be had; or\n\n(b) make such other order as is necessary or expedient for the most convenient and expeditious separate trial and disposal of the several causes of action.\n\n2 Claims of trustees in bankruptcy etc\n\nA claim by a trustee in bankruptcy or a trustee under a deed of arrangement, composition, scheme of arrangement or deed of assignment shall not, unless by leave of the Court or a Justice, be joined with a claim in another capacity.\n\n3 Husband and wife\n\nSubject to rules 1, 6 and 7 of this Order, a claim by or against husband and wife may be joined with a claim by or against either of them separately.\n\n4 Executor and administrator\n\nSubject to rules 1, 6 and 7 of this Order, a claim by or against an executor or administrator as such may be joined with a claim by or against him personally if the claim by or against him personally is alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator.\n\n5 Claims by joint plaintiffs\n\nSubject to rules 1, 6 and 7 of this Order, a claim by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant.\n\n6 Remedy for misjoinder\n\nWhere a defendant alleges that the plaintiff has joined in the same action several causes of action which cannot be conveniently disposed of together, the defendant may at any time apply to the Court or a Justice for an order confining the action to such of the causes of action as may be conveniently disposed of together.\n\n7 Order for exclusion\n\nWhere, on the hearing of an application made under the last preceding rule, it appears to the Court or a Justice that the causes of action are such as cannot all be conveniently disposed of together, the Court or Justice may:\n\n(a) order any of those causes of action to be excluded and consequential amendments to be made; and\n\n(b) make such order as to costs as is just.\n\n  \n\nOrder 20 Pleading generally\n\n1 Pleadings in High Court\n\nThe rules of pleading set out in this Order shall be used in the Court.\n\n2 Delivery of pleadings — costs of prolix pleadings\n\n(1) The plaintiff shall, in accordance with the provisions of Order 21, and at such time and in such manner as is prescribed in that Order, deliver to the defendant a statement of his claim and of the relief or remedy to which he claims to be entitled.\n\n(2) The defendant shall, in accordance with the provisions of Order 22, and at such time and in such manner as is prescribed in that Order, deliver to the plaintiff his defence, set-off or counterclaim, if any.\n\n(3) The plaintiff shall, in accordance with the provisions of Order 24, and at such time and in such manner as is prescribed in that Order, deliver his reply to the defence, set-off or counterclaim.\n\n(4) The pleadings 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 a request, inquire into unnecessary prolixity and order the costs occasioned by that prolixity to be borne by the party chargeable with it.\n\n3 Set-off and counterclaim\n\n(1) By way of defence to a claim for a liquidated demand whether at law or in equity, a defendant may, unless the Court or a Justice otherwise orders, rely upon a set-off consisting of a liquidated demand at law or in equity.\n\n(2) Subject to the provisions of Order 22, rule 14, a defendant in an action may set up by way of counterclaim against the claims of a plaintiff any right or claim, whether the counterclaim sounds in damages or not.\n\n(3) The counterclaim 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 upon the original and upon the cross-claim.\n\n4 Pleading to state material facts and not evidence\n\n(1) A 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.\n\n(2) The pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each paragraph containing as nearly as may be a separate allegation.\n\n(3) Dates, sums and numbers shall be expressed in figures and not in words.\n\n(4) Where 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.\n\n5 Particulars to be given where necessary\n\n(1) Where the party pleading relies on a contract or on misrepresentation, fraud, breach of trust, wilful default or undue influence, and in other cases in which particulars are necessary, particulars, with dates and items if necessary, shall be stated in the pleading.\n\n(2) Where the particulars are of debt, expenses or damages, and exceed three folios, the fact that they exceed three folios must be stated, with a reference to full particulars already delivered or to be delivered with the pleading.\n\n(3) In an action for libel or slander, if the plaintiff alleges that the words or matter complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of that sense.\n\n6 Further and better statement or particulars\n\nA further and better statement of the nature of a claim or defence, or further and better particulars of a matter stated in a pleading, notice or written proceeding requiring particulars, may be ordered upon such terms as to costs, and otherwise, as is just.\n\n7 Letter for particulars\n\n(1) Before applying for particulars by summons or notice, a party may apply by letter for them and the costs of the letter and of particulars delivered pursuant to the letter shall be allowable on taxation.\n\n(2) ln dealing with the costs of an application for particulars by summons or notice, the provisions of this rule shall be taken into consideration by the Court or Justice.\n\n(3) Costs shall not be allowed on taxation of an application for particulars which is prolix, unreasonable or unnecessary.\n\n8 Particulars before defence\n\nParticulars of a claim shall not, under rule 6 of this Order, be ordered to be delivered before defence unless the Court or Justice is of opinion that they are necessary or desirable to enable the defendant to plead or ought, for any other special reason, to be so delivered.\n\n9 Order for particulars when a stay\n\n(1) The party at whose instance particulars have been delivered under a Justice’s order 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.\n\n(2) Except as provided in this rule, an order for particulars does not, unless the order otherwise provides, operate as a stay of proceedings or give an extension of time.\n\n10 Printing etc of pleadings\n\nA pleading shall be printed, typewritten or written.\n\n11 Delivery of pleadings\n\n(1) A pleading or other document required to be delivered to a party shall be delivered at the address for service to the solicitor of a party who sues or appears by a solicitor, or to the party if he does not sue or appear by a solicitor.\n\n(2) Where no appearance has been entered for a party, the pleading or document shall be deemed to be delivered to the party if it is filed in the Registry in which the proceeding is then pending.\n\n12 Marking pleadings\n\n(1) Every pleading shall be delivered between parties, and:\n\n(a) 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\n\n(b) shall be endorsed with the name and place of business of the solicitor and agent, if any, delivering the pleading, or the name and address of the party delivering the pleading if he does not act by a solicitor.\n\n(2) At the beginning of a statement of claim, there shall be a memorandum of the date of the issue of the writ.\n\n13 “Not guilty by statute” abolished\n\nThe defence of “Not guilty by statute” shall not be used.\n\n14 Specific denial\n\nWhere an allegation of fact in a pleading:\n\n(a) is not denied specifically or by necessary implication; or\n\n(b) is not stated to be not admitted;\n\nin the pleading of the opposite party, it shall be taken to be admitted, except as against an infant or a person of unsound mind.\n\n15 Condition precedent\n\n(1) A 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.\n\n(2) Subject to the last preceding subrule, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant is implied in his pleading.\n\n16 What must be specially pleaded\n\nThe defendant or plaintiff, as the case may be, shall raise by his pleading:\n\n(a) all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law; and\n\n(b) such grounds of defence or reply, as the case may be, as, if not raised, would:\n\n(i) be likely to take the opposite party by surprise; or\n\n(ii) raise issues of fact not arising out of the preceding pleadings as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or a law requiring contracts to be made in or evidenced by writing.\n\n17 Departure\n\nA pleading of a party shall not, except by way of amendment, raise a new ground of claim or contain an allegation of fact inconsistent with the previous pleadings of that party.\n\n18 Denial to be specific\n\nIt is not sufficient for a defendant in his defence to deny generally the allegations in the statement of claim, or for a plaintiff in his reply to deny generally the allegations in a defence by way of counterclaim, but each party shall deal specifically with each allegation of fact of which he does not admit the truth, except damages.\n\n19 Joinder of issue\n\n(1) 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.\n\n(2) The joinder of issue operates as a denial of every material allegation of fact in the pleading upon which issue is joined, but it may except facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted.\n\n20 Evasive denial\n\n(1) When a party in a pleading denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively, but shall answer the point of substance; thus, if it is alleged that he received a certain sum of money, it is not sufficient to deny that he received that particular amount, but he shall deny that he received that sum or any part of that sum, or set out how much he received.\n\n(2) Where an allegation is made with divers circumstances, it is not sufficient to deny it along with those circumstances.\n\n21 Denial of contract\n\nWhere a contract, promise or agreement is alleged in a pleading or particulars, a bare denial of that contract, promise or agreement by the opposite party:\n\n(a) 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 contract, promise or agreement may be implied by law; and\n\n(b) shall not be construed as a denial of the legality or sufficiency in law of that contract, promise or agreement, whether with reference to a law requiring contracts to be made in, or evidenced by, writing or otherwise, or of the authority of a person by whom the contract, promise or agreement is alleged to have been made.\n\n22 Effect of documents to be stated\n\nWhere the contents of a document are material, it is sufficient in a pleading to state the effect of the document as briefly as possible, without setting out the whole or any part of it unless the precise words of the document or any part of it are material.\n\n23 Malice, knowledge, condition of mind etc\n\n(1) Where it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of a person, it is sufficient to allege that malice, intention, knowledge or condition of mind as a fact without setting out the circumstances from which it is to be inferred.\n\n(2) Where, in an action for libel or slander, the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, the plaintiff, if he alleges in his reply that the defendant was actuated by express malice, shall give particulars of the facts and matters from which that malice is to be inferred.\n\n24 Rolled-up plea\n\nWhere in an action for libel or slander the defendant alleges that:\n\n(a) in so far as the words complained of consist of statements of fact, they are true in substance and in fact; and\n\n(b) in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest;\n\nor pleads to the like effect, he shall give particulars stating which of the words complained of he alleges are true in substance and in fact and of the facts and matters he relies on in support of the allegation that the words are true.\n\n25 Notice\n\nWhere it is material to allege notice to a person of a fact, matter or thing, it is sufficient to allege that notice as a fact, unless the form or the precise terms of the notice, or the circumstances from which the notice is to be inferred, are material.\n\n26 Implied contract or relation\n\n(1) Where a contract or a relation between persons is to be implied from a series of letters or conversations, or otherwise from a number of circumstances, it is sufficient to allege that contract or relation as a fact, and to refer generally to those letters, conversations or circumstances without setting them out in detail.\n\n(2) If the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from those circumstances, he may state those contracts or relations in the alternative.\n\n27 Presumptions of law\n\nNeither party need, in a pleading, allege a matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless that matter of fact has first been specifically denied, for example, consideration for a bill of exchange where the plaintiff sues only on the bill, and not upon the consideration as a substantive ground of claim.\n\n28 Actions for trespass\n\nIn actions for trespass to land, the close or place in which the trespass is alleged to have been committed shall be designated in the statement of claim by name or abuttals or other sufficient description or by a plan drawn in the margin.\n\n29 Striking out pleadings\n\nThe Court or a Justice may, at any stage of the proceedings:\n\n(a) order to be struck out or amended any matter in an endorsement or pleading which is unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the action; and\n\n(b) if the Court or Justice thinks fit, order the costs of the application to be paid as between solicitor and client.\n\n30 Preliminary Act\n\n(1) In an action for damage by collision between vessels, unless the Court or a Justice otherwise orders, the plaintiff or his solicitor shall, within seven days after the commencement of the action, and the defendant or his solicitor shall, within seven days after appearance and before any pleading is delivered, respectively file in the Registry in which the action is then pending a document to be called a Preliminary Act.\n\n(2) The Preliminary Act shall be sealed up and shall not be opened until the pleadings are completed and a consent signed by the respective parties or their solicitors that the Preliminary Act shall be opened is filed in the Registry in which the action is then pending.\n\n(3) The Preliminary Act shall contain a statement as to:\n\n(a) the names of the vessels which came into collision and the names of their masters;\n\n(b) the time of the collision;\n\n(c) the place of the collision;\n\n(d) the direction and force of the wind;\n\n(e) the state of the weather;\n\n(f) the state and force of the tide;\n\n(g) the course and speed of the vessel when the other was first seen;\n\n(h) the lights (if any) carried by her;\n\n(i) the distance and bearing of the other vessel when first seen;\n\n(k) the lights (if any) of the other vessel which were first seen;\n\n(l) whether any lights of the other vessel other than those first seen, came into view before the collision;\n\n(m) what measures were taken, and when, to avoid the collision;\n\n(n) the parts of each vessel which first came into contact;\n\n(o) what sound signals (if any) were given, and when; and\n\n(p) what sound signals (if any) were heard from the other vessel, and when.\n\n(4) The Court or a Justice may at any time, on the application of a party, order the Preliminary Act to be opened and the evidence to be taken thereon without its being necessary to deliver any pleadings, and as soon as that order has been made, the pleadings as between the parties shall be deemed to be closed.\n\n(5) Where an order is made under the last preceding subrule and either party intends to rely on the defence of compulsory pilotage, he may do so, and shall give notice in writing of that intention to the other party within two days from the opening of the Preliminary Act, or within such further time as the Court or a Justice allows.\n\n  \n\nOrder 21 Statement of claim\n\n1 Statement of claim\n\n(1) Subject to the next succeeding subrule and to the provisions of Order 12, rule 13, as to filing a statement of claim where there is no appearance, the plaintiff shall deliver a statement of claim:\n\n(a) with the writ of summons or notice in lieu of writ of summons; or\n\n(b) within twenty-one days after appearance or such other time as is fixed by consent in writing or by the Court or a Justice.\n\n(2) A statement of claim delivered under paragraph (a) of the last preceding subrule may be endorsed upon the writ.\n\n(3) Where the writ is specially endorsed with or accompanied by a statement of claim under Order 13, rule 1, a further statement of claim shall not be delivered unless the Court or a Justice so orders, and the endorsement on the writ shall be deemed to be the statement of claim.\n\n2 Allegation of jurisdiction\n\nA statement of claim, whether endorsed on the writ or not, shall allege that the matter is one within the original jurisdiction of the Court and the facts upon which that allegation is based.\n\n3 Claim beyond endorsement\n\nWhere a statement of claim not endorsed upon the writ is delivered, the plaintiff may in that statement of claim alter, modify or extend his claim without amendment of the endorsement of the writ.\n\n4 Relief to be specifically stated\n\n(1) A statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and it is not necessary to ask for general or other relief which may always be given, as the Court or a Justice thinks just, to the same extent as if it had been asked for.\n\n(2) This rule applies to a counterclaim made, or relief claimed, by the defendant in his defence.\n\n5 Relief founded on separate grounds\n\n(1) 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.\n\n(2) This rule applies where the defendant relies upon several distinct grounds of defence, set-off or counterclaim founded upon separate and distinct facts.\n\n6 Stated or settled account\n\n(1) Where the cause of action is a stated or settled account, it shall be alleged with particulars.\n\n(2) Where a statement of account is relied on by way of evidence or admission of another cause of action which is pleaded, it shall not be alleged in the pleadings.\n\n  \n\nOrder 22 Defence and counterclaim\n\n1 Mere denial insufficient\n\nIn an action for a debt or liquidated demand in money comprised in Order 13, rule 1, a mere denial of the debt is inadmissible.\n\n2 Defences to actions on bills etc\n\nIn an action upon a bill of exchange, promissory note or cheque, a defence in denial must deny some matter of fact, for example, the drawing, making, endorsing, accepting, presenting, or notice of dishonour of the bill, note or cheque.\n\n3 Defences to actions under Order 13, r. 1 (1) (a) and (b)\n\nIn an action comprised in paragraphs (a) and (b) of subrule (1) of Order 13, rule 1, a defence in denial shall deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed, for example, in an action for goods bargained and sold or sold and delivered, the defence shall deny the order or contract, the delivery or the amount claimed, and 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 that receipt by the defendant a receipt to the use of the plaintiff.\n\n4 Pleading to damage\n\nA denial or defence is not necessary as to damages claimed or their amount, but they are in issue in all cases unless expressly admitted.\n\n5 Persons in representative capacity\n\nWhere a party wishes to deny:\n\n(a) the right of another party to claim as executor, administrator or trustee (whether in bankruptcy or otherwise) or in a representative or other alleged capacity; or\n\n(b) the alleged constitution of a partnership firm;\n\nhe shall deny that right or constitution specifically.\n\n6 Time for delivery of defence\n\nWhere a defendant has entered an appearance, he shall deliver his defence:\n\n(a) within twenty-one days from the time limited for appearance or for the delivery of the statement of claim, whichever is the later; or\n\n(b) within such other time as is fixed by consent in writing or by the Court or a Justice, unless, in an action in which the writ of summons has been specially endorsed with or accompanied by a statement of claim under Order 13, rule 1, the plaintiff in the meantime serves a summons for judgment under Order 13.\n\n7 Where leave to defend given under Order 13 or 14\n\nWhere leave has been given to a defendant to defend under Order 13 or Order 14, he shall deliver his defence, if any, within such time as is limited by the order giving him leave to defend, or if no time is thereby limited, within twenty-one days after the order.\n\n8 Proper admissions not made\n\nWhere the Court or a Justice is of opinion that an allegation of fact denied or not admitted by the defence ought to have been admitted, the Court or Justice may make such order as is just with respect to any extra costs occasioned by the allegation having been denied or not admitted.\n\n9 Allowable counterclaim\n\nA counterclaim shall not be pleaded which would not, if the claim in that counterclaim were made by a plaintiff in an action, be within the jurisdiction of the Court.\n\n10 Title on counterclaim\n\nWhere a defendant sets up a counterclaim which raises questions between himself and the plaintiff with any other persons, he shall:\n\n(a) add to the title of his defence a further title similar to the title in a statement of claim, setting forth as defendants the names of the persons who, if the counterclaim were to be enforced by cross action, would be defendants to that cross action; and\n\n(b) deliver his defence and counterclaim to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff.\n\n11 Counterclaim against person not party\n\n(1) Where such a 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 counterclaim, and that service shall be regulated by the same rules as are contained in these rules with respect to the service of a writ of summons.\n\n(2) A defence and counterclaim so served shall be endorsed in the form numbered 26 in the First Schedule, with such variations as the circumstances require.\n\n12 Appearance by added parties\n\nWhere a person not already a party to the action is served with a defence and counterclaim under the last preceding rule, he shall appear and may be proceeded against as if he had been served with a writ of summons, or notice of a writ, to appear in an action.\n\n13 Reply to counterclaim\n\nA person against whom a counterclaim is made shall deliver a defence to the counterclaim within the time within which he might deliver a defence if it were a statement of claim.\n\n14 Exclusion of counterclaim\n\nWhere a person against whom a counterclaim is made contends that the claim raised by the counterclaim ought not be disposed of by way of counterclaim, but in an independent action, the Court or a Justice may at any time order that the counterclaim be excluded.\n\n15 Discontinuance\n\nWhere the defendant sets up a counterclaim and the action of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.\n\n16 Judgment for balance\n\nWhere in an action a counterclaim is established against the plaintiff’s claim, the Court or a Justice may, if the balance is in favour of the defendant, give judgment for the defendant for that balance, or may otherwise adjudge to the defendant such relief as he is entitled to upon the merits of the case.\n\n17 Plea in abatement\n\nA plea or defence shall not be pleaded in abatement.\n\n18 Plea of possession\n\n(1) Where a defendant in an action for the recovery of land is in possession by himself or his tenant, he need not plead his title unless:\n\n(a) he is in possession by virtue of a lease or tenancy granted by the plaintiff or his predecessor in title;\n\n(b) his defence depends upon an equitable estate or right; or\n\n(c) he claims relief upon some equitable ground against a right or title asserted by the plaintiff.\n\n(2) Except in the cases mentioned in the last preceding subrule, it is sufficient to state by way of defence that he is in possession and it shall be taken to be implied in that statement that he denies, or does not admit, the allegations of fact contained in the plaintiff’s statement of claim, but he may, nevertheless, rely upon any other ground of defence.\n\n  \n\nOrder 23 Payment into and out of court and tender\n\n1 Payment into Court\n\n(1) In an action for a debt or damages or in an Admiralty action, 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.\n\n(2) Where a defence sets up tender before action, the sum of money alleged to have been tendered shall be brought into Court.\n\n(3) Where the money is paid into Court in satisfaction of one or more of several causes of action, the notice shall, unless the Court or a Justice otherwise orders, specify the cause or causes of action in respect of which payment is made and the sum paid in respect of each such cause of action.\n\n(4) The notice shall be in the form numbered 27 in the First Schedule and shall state whether liability is admitted or denied.\n\n(5) Receipt of the notice shall be acknowledged by the plaintiff in writing, specifying the date of that receipt, within three days of the receipt.\n\n2 Plaintiff may take out money\n\n(1) Where money is paid into Court under the last preceding rule, the plaintiff may:\n\n(a) within seven days of the receipt of the notice of payment into Court; or\n\n(b) where more than one payment into Court has been made — within seven days of the receipt of the notice of the last payment into Court;\n\naccept the whole sum, or any one or more of the sums paid in in satisfaction of the claim or in satisfaction of the cause or causes of action to which the sum or sums relate, by giving notice to the defendant in the form numbered 28 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.\n\n(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.\n\n(3) Where the plaintiff:\n\n(a) accepts money paid into Court in satisfaction of his claim or accepts a sum or sums paid in respect of one or more of specified causes of action; and\n\n(b) gives notice that he abandons the other cause or causes of action;\n\nhe may, after seven days from payment-out, and unless the Court or a Justice otherwise orders, tax his costs incurred to the time of payment into Court, and two days after taxation may sign judgment for his taxed costs.\n\n(4) Where a plaintiff in an action for libel or slander takes money out of Court, he may apply by a summons to a Justice in Chambers for leave to make in open court a statement in terms approved by a Justice.\n\n(5) This rule does not apply to an Admiralty action or to an action or cause of action to which a defence of tender before action is pleaded.\n\n3 Money remaining in Court\n\nWhere the whole of the money in Court is not taken out under the last preceding rule, 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 Justice, which may be made at any time before, at or after trial.\n\n4 Several defendants\n\n(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.\n\n(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 shall give notice in the form numbered 28 in the First Schedule to each defendant.\n\n(3) Further proceedings in respect of the 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 Justice dealing with the whole costs of the action or cause or causes of action, as the case may be.\n\n5 Counterclaim\n\nA plaintiff or other person made defendant to a counterclaim may pay money into Court in accordance with the preceding rules of this Order, with the necessary modifications.\n\n6 Non-disclosure of payment into Court\n\n(1) Except in an action to which a defence of tender before action is pleaded or in which a plea under the provisions of a law corresponding with the Acts of the Parliament of the United Kingdom known as the Libel Acts, 1843 and 1845, has been filed:\n\n(a) a statement of the fact that money has been paid into Court under the preceding rules of this Order shall not be inserted in the pleadings; and\n\n(b) a communication of that fact shall not, at the trial of an action, be made to the Justice or jury until all questions of liability and the amount of debt or damages have been decided.\n\n(2) The Justice 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 that payment.\n\n7 Payment into Court under certificate\n\nMoney shall not be paid into Court under the certificate of a Registrar unless that payment is expressly authorized in the certificate.\n\n8 Money paid into Court under order\n\n(1) Money paid into Court under an order of the Court or a Justice, or certificate of a Registrar, shall not be paid out of Court except in pursuance of an order of the Court or a Justice.\n\n(2) Where, before the delivery of defence, money has been paid into Court by the defendant pursuant to an order under Order 13, he may (unless the Court or a Justice otherwise orders):\n\n(a) by his pleading or by notice in writing appropriate the whole or any part of that money, and any additional payment if necessary, to the whole or a specified portion of the plaintiff’s claim; or\n\n(b) if he pleads a tender, by his pleading appropriate the whole or any part of the money in Court as payment into Court of the money alleged to have been tendered.\n\n(3) 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, or money paid into Court with a plea of tender, as the case may be, and shall be subject in all respects to those rules.\n\n9 Notice of payment in\n\nWhere a person pays money into Court under an order, he shall forthwith give notice of that payment to such parties and in such manner as is specified in the order.\n\n10 Duty\n\nThe affidavit in support of a summons for dealing with money or securities in Court, chargeable with a duty payable under the laws of the Commonwealth or of a State or Territory, or the dividends of those securities, shall contain a statement showing whether that duty has or has not been paid.\n\n11 Money recovered by or paid into account for infant or person of unsound mind\n\n(1) In an action in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or with other parties, a settlement, compromise, payment or acceptance of money paid into Court, whether before, at or after the trial, are not, with respect to the claims of the infant or person of unsound mind, valid without the approval of the Court or a Justice.\n\n(2) Where money, including damages, is recovered, adjudged, ordered, awarded or agreed to be paid in an action of the kind referred to in the last preceding subrule in respect of the claims of the infant or person of unsound mind, whether by judgment, order, settlement, compromise, payment, payment into Court or otherwise, before, at or after the trial, it shall not be paid to the plaintiff, the committee or next friend of the plaintiff, or the plaintiff’s solicitor, unless the Court or a Justice so directs.\n\n(3) Money so recovered, adjudged, ordered, awarded or agreed to be paid shall be dealt with as the Court or a Justice directs and the money, or any part of it, may be directed:\n\n(a) to be paid into Court to the credit of an account intituled in the action and to be invested or otherwise dealt with there; or\n\n(b) to be otherwise dealt with.\n\n(4) The directions referred to in the last preceding subrule may be given from time to time and may include any general or special directions that the Court or Justice thinks fit to give, including (without prejudice to the generality of the above provision) directions as to how the money is to be applied or dealt with and as to any payment to be made, out of the amount paid into Court, to the plaintiff or to the committee or next friend in respect of moneys paid or expenses incurred or for maintenance or otherwise for or on behalf of or for the benefit of the infant or person of unsound mind, or otherwise, or to the plaintiff’s solicitor in respect of costs or of the difference between party and party and solicitor and client costs.\n\n(5) Where, in a proceeding in a District Registry in which money is recovered by or on behalf of an infant or person of unsound mind, that money is ordered to be paid into the Court and invested on behalf of the infant or person of unsound mind, the Court or Justice may order:\n\n(a) that the money be invested by the Principal Registrar in such names and in such securities as are specified in the order or in a subsequent order;\n\n(b) that the interest as it accrues shall be paid to the infant or to the next friend of the infant or person of unsound mind or to such other person as the Court or Justice orders; or\n\n(c) that the dividends be accumulated in the like securities for the benefit of the infant during minority.\n\n(6) The Court or a Justice may also make an order directing the transfer or sale of the securities, or any part of them, and the payment out of the proceeds of the sale to the infant, or to such person as it or he directs, for the benefit of the infant or the person of unsound mind.\n\n(7) This rule also applies:\n\n(a) to an action in which damages are claimed or recovered by or on behalf of, or are adjudged, ordered, awarded or agreed to be paid to, an infant or person of unsound mind under the provisions of a law corresponding with the Acts of the Parliament of the United Kingdom known as the Fatal Accidents Acts, 1846 to 1908; and\n\n(b) in the same way as it applies to money recovered by or adjudged or ordered to be paid to an infant — to money, which in an action under those provisions, is recovered by or adjudged to be paid to the widow of the person killed.\n\n(8) Where such an action is taken by or for the benefit of more than one person and the amount recovered is to be divided amongst those persons, the Justice or jury, as the case may be, shall divide and apportion the share to be paid to each of those persons and the amount so apportioned shall be specified in the order or judgment made or directed in the Court.\n\n(9) This rule does not prejudice the lien of a solicitor for costs.\n\n(10) This rule applies to a counterclaim by an infant or a person of unsound mind, and when so applied the expressions “plaintiff, plaintiff’s solicitor” and “committee” or “next friend” shall be read as applying to a defendant setting up the counterclaim or his guardian ad litem or committee, as the case may be.\n\n(11) The provisions of this rule apply, mutatis mutandis, to an action which is settled on behalf of an infant or person of unsound mind before trial.\n\n  \n\nOrder 24 Reply\n\n1 Time for reply\n\nA plaintiff shall deliver his reply:\n\n(a) within fourteen days from the delivery of the defence or the last of the defences; or\n\n(b) within such other time as is fixed by consent in writing or by the Court or a Justice.\n\n2 Reply to counterclaim\n\nWhere a counterclaim is pleaded, a reply to the counterclaim is subject to the rules applicable to defences.\n\n3 Subsequent pleadings — time for pleading after reply\n\nA pleading subsequent to reply shall not be pleaded without leave of the Court or a Justice, and then only within such time and upon such terms as the Court or Justice thinks fit.\n\n4 New assignment\n\nA new assignment is not necessary and shall not be 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 a reply.\n\n  \n\nOrder 25 Matters arising pending the action\n\n1 New grounds of defence arising\n\n(1) A ground of defence which has arisen after action brought, but before the defendant has delivered his defence and before the time limited for his doing so has expired, may be raised by the defendant in his defence, either alone or together with any other ground of defence.\n\n(2) Where, after a defence has been delivered, a ground of defence arises to a set-off or counterclaim alleged in that defence by the defendant, it may be relied upon by the plaintiff, or another defendant to the counterclaim, in his reply, either alone or together with any other ground of reply.\n\n2 Further defence or reply\n\n(1) Where a ground of defence arises after the defendant has delivered a defence, or after the time limited for his doing so has expired, the defendant may, within fourteen days after that ground of defence has arisen, or at a subsequent time by leave of the Court or a Justice, deliver a further defence setting forth that ground of defence.\n\n(2) Where a ground of defence to a counterclaim or answer to a set-off arises after reply, or after the time limited for delivering a reply has expired, the plaintiff or another defendant to the counterclaim may, within fourteen days after that ground of defence or answer has arisen, or at a subsequent time by leave of the Court or a Justice, deliver a further reply setting forth that ground of defence or answer.\n\n3 Confession of defence\n\n(1) Where a defendant, in his defence or in a further defence as mentioned in the last preceding rule, alleges a ground of defence which has arisen after the commencement of the action, the plaintiff:\n\n(a) may deliver a confession of that defence; and\n\n(b) may thereupon, unless the Court or a Justice, either before or after the delivery of the confession, otherwise orders, sign judgment for his costs up to the time of the pleading of that defence with costs of judgment.\n\n(2) A confession of defence may be in the form numbered 29 in the First Schedule with such variations as the circumstances require.\n\n(3) This rule applies, mutatis mutandis, to a reply to a counterclaim.\n\n  \n\nOrder 26 Demurrer and objections to pleadings\n\n1 Demurrer\n\nA party may demur:\n\n(a) to a pleading of the opposite party;\n\n(b) to a part of a pleading which sets up a distinct cause of action;\n\n(c) to a distinct and severable claim for damages;\n\n(d) to a claim for damages exceeding an amount named by the demurring party; or\n\n(e) to a pleading or part of a pleading of the opposite party which sets up a distinct ground of defence, set-off, counterclaim or reply, as the case may be;\n\non the ground that the facts alleged do not show a cause of action, claim for damages, ground of defence, set-off, counterclaim or reply, as the case may be, to which effect can be given by the Court as against the party demurring.\n\n2 Demurrer to state whether the whole or part — frivolous demurrer may be set aside with costs\n\n(1) A demurrer shall state:\n\n(a) whether it is to the whole or to a part, and if so to what part, of the claim or pleading of the opposite party; and\n\n(b) some ground in law for the demurrer.\n\n(2) The party demurring shall not on the argument of the demurrer be limited to the ground so stated.\n\n(3) Where no ground or only a frivolous ground of demurrer is stated, the Court or a Justice may set the demurrer aside with costs.\n\n3 Delivery\n\nA party demurring to the pleading of another party shall deliver his demurrer to that other party:\n\n(a) within the time within which the demurring party is required to answer that pleading; or\n\n(b) within such time as is fixed by consent in writing or by the Court or a Justice.\n\n4 Demurrer and pleading in one document\n\nWhere a party entitled to deliver a pleading desires both to demur and plead to the last pleading of the opposite party, or to demur to part of the last pleading of the opposite party and to plead to other part of that pleading, he shall combine the demurrer and other pleading.\n\n5 Leave to plead and demur together not necessary\n\n(1) A party may plead and demur to the same matter without leave.\n\n(2) Where a party demurring pleads as well as demurs, it is in the discretion of the Court or a Justice to direct whether the issues of law or fact shall be first disposed of.\n\n6 Demurrer to claim founded on document\n\n(1) Where the claim or defence of a party depends, or may depend, upon the construction of a written document, and the party in his pleading refers to the document but does not set it out at length, the opposite party may, in his demurrer, set out the document at length or so much of the document as is material, and demur to the claim or defence founded upon it, in the same manner as if it had been pleaded at length by the other party.\n\n(2) If he does not set out the document truly or sufficiently, the Court or a Justice may order the demurrer to be struck out or amended.\n\n7 Demurrer not entered for argument to be held sufficient\n\n(1) When a demurrer, either to the whole or part of a pleading, is delivered, either party may set down the demurrer for argument before the Court immediately, and the party setting down the demurrer shall on the same day give notice of the setting down to the other party.\n\n(2) If:\n\n(a) the demurrer is not set down and notice given within fourteen days after delivery; and\n\n(b) the party whose pleading or claim is demurred to does not within that time amend;\n\nthe demurrer is sufficient for the same purposes and with the same result as to costs as if it had been allowed on argument, and the same judgment may be entered thereon.\n\n8 Form of setting down for argument\n\nA demurrer shall be set down by filing in the Registry in which the action is then pending:\n\n(a) a memorandum requiring the demurrer to be set down either before a Full Court or a single Justice; and\n\n(b) a copy of the pleadings so far as they relate to the matters of law raised by the demurrer.\n\n9 When demurrer required to be heard before Full Court\n\n(1) Where the party setting down a demurrer for argument sets it down to be heard before a single Justice, and another party desires it to be heard before a Full Court, that other party may, within seven days after receiving notice that the demurrer has been so set down, file in the Registry in which the action is then pending a memorandum to that effect and deliver to the other party a copy of the memorandum.\n\n(2) The demurrer shall thereupon be deemed to have been set down to be heard before a Full Court.\n\n(3) If the originating process in the action was issued by an office of the Registry other than that where the seat of the Court is located, the pleadings shall be forthwith transmitted to the Principal Registry unless a sitting of a Full Court is appointed to be held at the place where the District Registry is situated either within sixty days or prior to the next sitting of a Full Court appointed to be held at the place where the Principal Registry is situated.\n\n(4) The pleadings shall, after the decision of the Full Court, be returned to the District Registry with a certificate of the judgment or order of the Full Court.\n\n10 Copy pleadings for Justices\n\nAfter a demurrer has been set down for argument, the party setting it down shall forthwith lodge in the Principal Registry or the District Registry, as the case may be, for the Justice, or each Justice, who is to sit on the hearing of the argument, a copy of the pleadings so far as they relate to the matters of law raised by the demurrer.\n\n11 Amendment pending demurrer\n\nWhile a demurrer to the whole or part of a pleading is pending, that pleading shall not be amended except on payment of the costs of the demurrer, unless by leave of the Court or a Justice.\n\n12 Costs\n\nWhere a demurrer to the whole or part of a pleading or claim is allowed upon an argument, the party whose pleading or claim is demurred to shall pay to the demurring party the costs of the demurrer, and, where a demurrer is overruled, the demurring party shall pay to the opposite party the costs occasioned by the demurrer, unless in either case the Court otherwise orders.\n\n13 Effect of decision on demurrer going to whole action\n\nSubject to the power of amendment, when a demurrer to the whole of a pleading, so far as it relates to a separate cause of action, is allowed or overruled, the Court shall give such judgment as to that cause of action as upon the pleadings the successful party appears to be entitled to, and, if the judgment is for the defendant with respect to the whole action, the plaintiff shall pay to the defendant the costs of the action, unless the Court otherwise orders.\n\n14 Where demurrer allowed to part of a pleading, that part is to be deemed to be struck out\n\nWhere a demurrer to a pleading or claim, or part of a pleading or claim, is allowed in a case not falling within the last preceding rule, then, subject to the power of amendment, the matter demurred to, shall, as between the parties to the demurrer, be deemed to be struck out of the pleadings, and the rights of the parties are the same as if it had not been pleaded.\n\n15 Demurrer overruled with leave to plead\n\nWhere a demurrer is overruled, the Court may make such order, and upon such terms as the Court thinks fit, for allowing the demurring party to raise by further pleading any case which he desires to set up in opposition to the matter demurred to.\n\n16 Points of law may be raised by pleadings\n\nA party is entitled to raise by his pleading any point of law, and a point so raised shall, subject to section 18 of the Judiciary Act 1903-1950:\n\n(a) be disposed of by the Justice who tries the action; or\n\n(b) by consent of the parties or by order of the Court or a Justice on the application of either party, be set down for hearing and disposed of at any time before the trial.\n\n17 Dismissal of action\n\nWhere, in the opinion of the Court or a Justice, the decision of that point of law substantially disposes of the whole action or a distinct cause of action, ground of defence, set-off, counterclaim or reply in the action, the Court or Justice may thereupon dismiss the action or make such other order in that action as is just.\n\n18 Striking out pleading where no reasonable cause of action disclosed\n\n(1) The Court or a Justice may order a pleading to be struck out on the ground that it does not disclose a reasonable cause of action or answer.\n\n(2) In that case, or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Justice may order the action to be stayed or dismissed, or judgment to be entered accordingly, as is just.\n\n19 Declaratory judgment\n\nA proceeding is not open to objection on the ground that a merely declaratory judgment or order is sought by the proceeding, and the Court may make binding declarations of right in an action or other proceeding whether any consequential relief is or could be claimed in that action or proceeding or not.\n\n  \n\nOrder 27 Discontinuance\n\n1 Discontinuance by a party\n\n(1) A party to an action or proceeding may, by notice in writing, wholly discontinue or withdraw his action, counterclaim or defence as against another party, or withdraw part or parts of his claim or cause of complaint, counterclaim or defence.\n\n(2) The party so discontinuing or withdrawing his action, counterclaim or defence, or a part or parts of his claim or cause of complaint, counterclaim or defence, shall pay the other party his costs in the action or proceeding, or, if the action, counterclaim or defence is not wholly discontinued or withdrawn, the costs occasioned by the matter so withdrawn.\n\n(3) The costs shall be taxed, and the discontinuance or withdrawal, as the case may be, shall not be a defence to a subsequent action for the same cause.\n\n2 Withdrawal by consent\n\nAn action or proceeding may be discontinued at any time upon the filing in the Registry in which it is then pending of a consent in writing signed by all parties.\n\n3 Entering judgment on discontinuance\n\nA party may enter judgment:\n\n(a) for the costs of the action or proceeding if it is wholly discontinued against him; or\n\n(b) for the costs occasioned by the matter withdrawn if the action or proceeding is not wholly discontinued;\n\nif the said costs are not paid within seven days after taxation.\n\n  \n\nOrder 28 Default in pleading\n\n1 Default of plaintiff in delivering statement of claim\n\n(1) Where the plaintiff is bound to deliver a statement of claim and he does not deliver it within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court or a Justice to dismiss the action, with costs, for want of prosecution.\n\n(2) On the hearing of the application, the Court or Justice may, if a statement of claim has not been delivered, order the action to be dismissed accordingly or may make such other order on such terms as the Court or Justice thinks just.\n\n2 Claim for debt or liquidated demand\n\n(a) the plaintiff’s claim is for a debt or liquidated demand only; and\n\n(b) the defendant is bound to deliver a defence and he does not, within the time allowed for that purpose, deliver a defence;\n\nthe plaintiff may, at the expiration of that time, upon filing an affidavit showing the facts referred to in paragraph (a) and (b) of this subrule, enter final judgment for the amount claimed, with costs.\n\n(2) In an action by a money-lender or an assignee for the recovery of money lent by a money-lender or the enforcement of an agreement or security relating to that money, judgment shall not be entered in default of defence unless the leave of the Court or Justice has been obtained.\n\n3 Several defendants, default of one\n\nWhere, in an action such as is mentioned in subrule (1) of the last preceding rule, there are several defendants and one of them makes default as mentioned in that subrule, the plaintiff may, subject to subrule (2) of that rule, enter final judgment against the defendant so making default and issue execution upon that judgment without prejudice to his right to proceed with his action against the other defendants.\n\n4 Damages — detention of goods\n\n(a) the plaintiff’s claim is for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages; and\n\n(b) the defendant, or all the defendants, if more than one, make default as mentioned in subrule (1) of rule 2 of this Order;\n\nthe plaintiff may enter an interlocutory judgment against the defendant or defendants so making default, and the value of the goods and the amount of the damages, or either of them, as the case may be, shall be assessed by the Registrar, unless the Court or a Justice otherwise directs.\n\n(2) The Court or a Justice may order that instead of assessment by a Registrar, the value of the goods and amount of damages, or either of them, shall be ascertained in a way which the Court or Justice directs.\n\n5 Default of one or more defendants\n\n(1) Where, in an action such as is mentioned in the last preceding rule, there are several defendants and one or more of them make default as mentioned in subrule (1) of rule 2 of this Order, the plaintiff may enter an interlocutory judgment against the defendant or defendants so making default and proceed with his action against the others.\n\n(2) The value and amount of damages against a defendant so making default shall be assessed at the same time as the trial of the action, or issues in the action, against the other defendants, unless the Court or a Justice otherwise directs.\n\n6 Debt or damages and detention of goods or damages\n\n(a) the plaintiff’s claim is for a debt or liquidated demand, and also for pecuniary damages, or for detention of goods with or without a claim for pecuniary damages; and\n\n(b) a defendant makes default as mentioned in subrule (1) of rule 2 of this Order;\n\nthe plaintiff may, subject to subrule (2) of that rule:\n\n(c) enter final judgment against that defendant for the debt or liquidated demand; and\n\n(d) enter interlocutory judgment for the value of the goods and the damages, or either of them, as the case may be, and proceed as provided in rules 4 and 5 of this Order.\n\n7 Recovery of land\n\nWhere, in an action for the recovery of land, the defendant makes default as mentioned in subrule (1) of rule 2 of this Order, the plaintiff may enter a judgment that he shall recover possession of the land, with his costs.\n\n8 Claims joined with claim for recovery of land\n\nWhere the plaintiff has endorsed another claim upon a writ for the recovery of land and a defendant makes default in delivering a defence, the plaintiff may:\n\n(a) enter judgment against that defendant with respect to the land as provided in the last preceding rule; and\n\n(b) proceed with respect to the other claim as provided in this Order with respect to such a claim.\n\n9 Where a defence is delivered to part of claim only\n\n(a) the plaintiff’s claim is for a debt or liquidated demand, or for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, or for any of those matters, or for the recovery of land;\n\n(b) the defendant delivers a defence in answer to part only of the plaintiff’s alleged cause of action; and\n\n(c) the part unanswered consisted of a separate cause of action, or is severable from the rest, as in the case of part of a debt or liquidated demand;\n\nthe plaintiff may, by leave of the Court or a Justice, enter judgment, final or interlocutory, as the case may be, for the part unanswered.\n\n(2) Where there is a counterclaim, execution on judgment entered under the last preceding subrule in respect of the plaintiff’s claim shall not issue without leave of the Court or a Justice.\n\n10 Admiralty actions in rem\n\n(1) When, in an Admiralty action in rem, the defendant makes default in delivering a defence within the time limited by or under these rules, the plaintiff may, on the expiration of twenty-one days after the expiration of the time so limited, and on filing an affidavit on non-delivery of defence, set down the action for judgment by default.\n\n(2) Order 12, rule 15, applies to an action set down under this rule.\n\n11 Defendant in default\n\nWhere, in an action not being an action mentioned in the preceding rules of this Order, the defendant is bound to deliver a defence and makes default in delivering it, the plaintiff may set down the action on motion for judgment, and shall recover the judgment to which, upon the writ or statement of claim, he is entitled.\n\n12 One of several defendants default\n\nWhere, in an action such as is mentioned in the last preceding rule, there are several defendants, then, if one of the defendants makes default as mentioned in that rule, the plaintiff may, if the cause of action is severable:\n\n(a) set down the action at once on motion for judgment against the defendant so making default; or\n\n(b) 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.\n\n13 Close of pleadings on default\n\n(1) Where a party makes default in delivering a reply or a subsequent pleading, the pleadings shall be deemed to be closed and all material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue.\n\n(2) This rule does not apply to a reply to a counterclaim.\n\n(3) Unless the plaintiff, or other person defendant to a counterclaim, delivers a reply or defence to the counterclaim, the statements of fact contained in the counterclaim shall, at the expiration of twenty-one days from its delivery or of such time, if any, as may by order be allowed for delivery of the reply or defence, be deemed to be admitted, but the Court or Justice may, at any subsequent time, give leave to the plaintiff to deliver a reply.\n\n14 Default of third party\n\n(1) Where an issue arises other than between plaintiff and defendant and a party to that issue makes default in delivering a pleading which he is bound to deliver, the opposite party may set down the action on motion for such judgment, if any, as upon the pleadings he appears to be entitled to.\n\n(2) The Court or Justice may order judgment to be entered accordingly or may make such other order as is necessary to do complete justice between the parties.\n\n15 Setting aside judgment by default\n\nA judgment by default, whether under this Order or under any other of these rules, may be set aside or varied by the Court or a Justice upon such terms as to costs or otherwise as the Court or Justice thinks fit.\n\n16 Effect of judgment by default\n\nWhere a plaintiff enters judgment under the provisions of this Order against a defendant who has made default in delivering a defence, that entry of judgment does not, nor does the issue of execution on the judgment, prejudice his right to proceed against another defendant.\n\n17 Counterclaims\n\nThis Order applies to counterclaims, and to proceedings on counterclaims, as if the counterclaim were a statement of claim and the defendant or other party setting up the counterclaim were a plaintiff.\n\n  \n\nOrder 29 Amendment\n\n1 Amendment of endorsement\n\n(1) The Court or a Justice may, at any stage of the proceedings, allow a party to amend his endorsement or pleadings in such manner, and on such terms, as is just.\n\n(2) All such amendments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties.\n\n2 When plaintiff may amend without leave\n\nThe plaintiff may, without leave, amend his statement of claim, whether endorsed on the writ or not:\n\n(a) once at any time before the expiration of the time limited for reply and before replying; or\n\n(b) where a defence is not delivered, at any time before the expiration of twenty-eight days from the appearance of the defendant who last appeared.\n\n3 By defendant\n\nA defendant may, without leave, amend his defence or counterclaim once at any time before the expiration of fourteen days from delivery of the reply.\n\n4 Disallowance of amendment, application for, within 14 days\n\n(1) When a party has amended his pleading under either of the last two preceding rules, the opposite party may, within fourteen days after the delivery to him of the amended pleading, apply to the Court or a Justice to disallow the amendment or a part of the amendment.\n\n(2) The Court or Justice may, if satisfied that the justice of the case requires it, disallow the amendment, or allow it upon such terms as to costs, or otherwise, as are just.\n\n5 Pleading to amendment\n\n(1) When a party has amended his pleading under rule 2 or rule 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 fourteen days from the delivery of the amendment, whichever period last expires.\n\n(2) Where the opposite party has pleaded before the delivery of the amendment, and does not plead again or amend within the time mentioned in the last preceding subrule, he shall be deemed to rely on his original pleading in answer to the amendment.\n\n6 Other cases\n\nIn a case not provided for by the preceding rules of this Order, application for leave to amend may be made by a party to the Court or a Justice, or to the Justice at the trial of the action, and the amendment may be allowed upon such terms as to costs, or otherwise, as are just.\n\n7 Failure to amend under order\n\nIf a party who has obtained an order for leave to amend does not amend accordingly:\n\n(a) within the time limited for that purpose by the order; or\n\n(b) if no time is so limited, then within fourteen days from the date of the order;\n\nthe order to amend, on the expiration of the time so limited or of fourteen days from the date of the order, as the case may be, becomes void, unless the time is extended by the Court or a Justice.\n\n8 How amendments made\n\n(1) An amendment in a document may be made:\n\n(a) by a written alteration in the document and copies of the document which have been filed, served or delivered; or\n\n(b) by an addition on paper to be interleaved with the document and copies.\n\n(2) A party on or to whom the document or a copy of the document has been served or delivered shall produce it to the party desiring to make the amendment.\n\n(3) If 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 making them in writing would render the document difficult or inconvenient to read, a copy of the document as amended shall be filed, served or delivered.\n\n(4) An amendment shall be made in red ink or otherwise in such manner as to distinguish the amendment from the original matter.\n\n9 Date of order and date of amendment to be marked\n\nWhen a document is amended, it shall be marked with the date of the order, if any, under which it is amended and of the day on which the amendment is made, in manner following, namely:\n\n“Amended the day of\n\npursuant to order of dated\n\nthe day of .”.\n\n10 Delivery of amended document\n\nWhen it is necessary to serve or deliver a copy of a document as amended, the amended document shall be served on or delivered to the opposite party within the time allowed for amending the document.\n\n11 Clerical mistakes and accidental omissions\n\nA clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons.\n\n12 General power to amend\n\nThe Court or a Justice may at any time, and upon such terms as to costs or otherwise as the Court or Justice thinks just, amend a 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 proceeding.\n\n13 Costs\n\nThe costs of and occasioned by an amendment made pursuant to rules 2 and 3 of this Order shall be borne by the party making the amendment, unless the Court or a Justice otherwise orders.\n\n  \n\nOrder 30 Caveats and releases in admiralty actions\n\n1 Caveat against warrant to arrest\n\nWhere a party desires to prevent the arrest of property, he may cause a caveat against the issue of a warrant for the arrest of the property to be entered in the Principal Registry.\n\n2 Caveat Warrant Book\n\n(1) For the purpose mentioned in the last preceding rule, the party shall cause to be filed in the Registry a notice, signed by himself or his solicitor, undertaking:\n\n(a) to enter an appearance in any action that may be commenced against the property; and\n\n(b) to give security in that action in a sum not exceeding an amount to be stated in the notice or to pay that sum into Court.\n\n(2) A caveat against the issue of a warrant for the arrest of the property shall thereupon be entered in a book to be kept in the Registry, called the Caveat Warrant Book.\n\n3 Search for caveat before issue of arrest warrant in District Registry\n\nWhen an action is proceeding in a District Registry, the District Registrar, unless required to act under rule 18 of this Order, shall, before issuing a warrant for the arrest of the property, ascertain by telegraph, or otherwise, from the Principal Registry whether or not a caveat has been entered against the issue of a warrant for the arrest of the property.\n\n4 Writ to be served on party entering caveat\n\nWhere a plaintiff commences an action against property in respect of which a caveat has been entered in the Caveat Warrant Book, he shall forthwith serve a copy of the writ upon the party on whose behalf the caveat has been entered, or upon his solicitor.\n\n5 Security to be given within 3 days\n\nThe party on whose behalf the caveat has been entered shall, if the sum in respect of which the action is commenced does not exceed the amount for which he has undertaken to give security or pay into Court, give security in that sum within three days from the service of the writ.\n\n6 If security not given, action may proceed as on default\n\nWhere, after the expiration of fourteen days from the filing of the notice mentioned in rule 2 of this Order, the party on whose behalf the caveat has been entered has not, within three days from the service of the writ, given security as required by the last preceding rule, the plaintiff may proceed with the action as upon default of appearance.\n\n7 Judgment may be enforced by attachment and warrant\n\nIf, when the action comes before the Court, the Court is satisfied that the claim is well founded, it may pronounce for the amount which appears to be due, and may enforce payment of that amount by attachment against the party on whose behalf the caveat has been entered, as well as by the arrest of the property, if it then is, or thereafter comes, within the jurisdiction of the Court.\n\n8 Release\n\n(1) Property arrested by warrant in an Admiralty action shall not be released except under the authority of an instrument, to be called a release issued from the Registry from which the warrant for arrest issued.\n\n(2) A party, or the solicitor of a party, at whose instance property has been arrested may, before an appearance has been entered, obtain the release of that property by filing a notice that he withdraws the warrant.\n\n9 Caveat against release\n\n(1) Where a party desires to prevent the release of property under arrest, he shall file a notice objecting to the release in the Registry from which the warrant for arrest issued.\n\n(2) Thereupon a caveat against the release of the property shall be entered in a book to be kept in the Registry, called the Caveat Release Book.\n\n10 Payment into Court\n\nExcept as provided by the succeeding rules of this Order, a party may obtain the release of property by paying into Court the sum in respect of which the action has been commenced, or giving security for that sum.\n\n11 Release of cargo arrested for freight only\n\nWhere cargo is arrested for freight only, it may be released:\n\n(a) by filing an affidavit as to the value of the freight, and paying the amount of the freight into Court; or\n\n(b) upon an order of the Court or a Justice upon proof that the freight has already been paid.\n\n12 In salvage actions\n\nIn an action for salvage, the value of the property under arrest shall be agreed, or an affidavit of value filed, before the property is released, unless the Court or a Justice otherwise orders.\n\n13 On giving security\n\nA party:\n\n(a) who has given security in the sum in respect of which the action has been commenced, or has paid that sum into Court; and\n\n(b) if the action is one of salvage, who has also filed an affidavit as to the value of the property arrested;\n\nis entitled to a release for that property, unless a caveat against the release is outstanding in the Caveat Release Book.\n\n14 On consent or discontinuance or dismissal of action\n\nUnless a caveat against the release is outstanding in the Caveat Release Book, a release may also be issued by the Registrar:\n\n(a) on a consent in writing being filed, signed by the party at whose instance the property was arrested; or\n\n(b) on discontinuance or dismissal of the action in which the property was arrested.\n\n15 Release to be left with Marshal\n\nWhen the release is obtained, the party taking it out shall:\n\n(a) leave it with the Marshal; and\n\n(b) at the same time pay all costs, charges and expenses attending the care and custody of the property while under arrest;\n\nand the property shall thereupon be released.\n\n16 Registrar may require Justice’s order\n\nThe Registrar may refuse to issue a release without the order of a Justice.\n\n17 Liability for delaying release\n\nWhere a party delays the release of property by the entry of a caveat, he is liable to be condemned in the costs and damages occasioned by the entry, unless he shows to the satisfaction of the Court or a Justice good and sufficient reason for having done so.\n\n18 Arrest notwithstanding caveat\n\n(1) Subject to the next succeeding subrule, these rules do not prevent a solicitor from taking out a warrant for the arrest of property, notwithstanding the entry of a caveat in the Caveat Warrant Book.\n\n(2) The party at whose instance property, in respect of which the caveat was entered, has been arrested is liable to have the warrant discharged, and to be condemned in costs and damages, unless he shows to the satisfaction of the Court or Justice good and sufficient reason for having so done.\n\n19 Caveat Payment Book\n\nA book shall be kept in each Registry, called the Caveat Payment Book, in which caveats shall be entered against the payment of money out of Court in Admiralty actions.\n\n20 Caveat against payment out of Court\n\nWhere a person desires to prevent the payment of money out of Court in an Admiralty action, he shall file a notice objecting to the payment, and thereupon a caveat shall be entered in the Caveat Payment Book.\n\n21 Liability for delaying payment\n\nThe party at whose instance a caveat against payment is entered is liable to be condemned in the costs and damages occasioned by that entry unless he shows to the satisfaction of the Court or Justice good and sufficient reason for entering the caveat.\n\n22 Address of caveator\n\nIf the person entering a caveat is not a party to the action, the notice shall state his name and address, and an address within three miles of the Registry in which the action is pending, at which documents required to be served upon him may be left.\n\n23 Withdrawal of caveats\n\nA caveat may at any time be withdrawn by the person at whose instance it has been filed on his filing a notice withdrawing it.\n\n24 Caveats may be overruled\n\nThe Court or a Justice may set aside a caveat.\n\n25 Caveat in Admiralty actions in force for 6 months\n\nIn an Admiralty action, a caveat, whether against the issue of a warrant, the release of property or the payment of money out of Court, shall not remain in force for more than six months from the date of the caveat.\n\n  \n\nOrder 31 Summons for directions and consolidation\n\n1 Summons for directions\n\n(1) A party to an action may take out a summons for directions at any time before judgment.\n\n(2) A summons for directions shall not be taken out by or against a defendant until after that defendant has entered an appearance.\n\n2 Interlocutory proceedings\n\n(1) Upon the hearing of the summons, the Court or a Justice may give such directions with respect to the proceedings as the Court or Justice thinks proper.\n\n(2) Without prejudice to the generality of the last preceding subrule, the Court or a Justice may:\n\n(a) make such order as is just with respect to:\n\n(i) discovery and inspection of documents;\n\n(ii) interrogatories;\n\n(iii) inspections of real or personal property;\n\n(iv) admissions of fact or of documents; and\n\n(v) the place, time and mode of trial;\n\n(b) order that evidence of a particular fact or facts, to be specified in the order, shall be given at the hearing or trial:\n\n(i) by statement on oath of information and belief;\n\n(ii) by production of documents or entries in books;\n\n(iii) by copies of documents or entries; or\n\n(iv) otherwise as the Court or Justice directs;\n\n(c) order that no more than a specified number of expert witnesses may be called;\n\n(d) appoint a Court expert under Order 38;\n\n(e) order the action to be set down for trial forthwith and settle the issues to be tried;\n\n(f) make such order as is just with respect to pleadings and particulars;\n\n(g) where two or more tortfeasors are sued together in respect of the same tort or damage and one of them in the same proceedings claims contribution from the other or others, order that a written offer of contribution made by one of those tortfeasors to the other or others of them shall be treated for the purposes of that claim as a notice of payment into Court; and\n\n(h) may revoke or vary an order made under this subrule.\n\n3 No affidavit to be used without leave\n\nAn affidavit shall not be used on the hearing of a summons for directions except by leave of the Court or a Justice.\n\n4 Parties to apply for directions\n\nOn the hearing of the summons, a party to whom the summons is addressed shall, so far as practicable, apply for any interlocutory order or directions.\n\n5 Subsequent applications\n\nAn application by a party subsequent to the original summons and before judgment for directions as to an interlocutory matter or thing shall be made under the summons by two clear days’ notice to the other party stating the grounds of the application.\n\n6 Costs of subsequent applications\n\nAn application by a party which might have been made at the hearing of the original summons shall, if granted on a subsequent application, be granted at the cost of the party applying unless the Court or a Justice is of opinion that the application could not properly and reasonably have been made at the hearing of the original summons.\n\n7 Consolidation of proceedings\n\nProceedings may be consolidated at any time by order of the Court or a Justice.\n\n  \n\nOrder 32 Discovery and inspection\n\n1 Discovery by interrogatories\n\n(1) In an action, and in any other proceeding by leave of the Court or a Justice, a party may deliver interrogatories in writing for the examination of an opposite party.\n\n(2) The interrogatories when delivered shall have a note at their foot stating which of the interrogatories a particular party is required to answer.\n\n(3) Interrogatories which do not relate to matters in question in the proceeding shall be deemed irrelevant notwithstanding that they might be admissible on the oral cross-examination of a witness.\n\n(4) Where, in an action for libel or slander, the defendant pleads that the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, interrogatories shall not be allowed as to the defendant’s sources of information or grounds of belief.\n\n2 Further interrogatories by leave\n\nA party shall not deliver more than one set of interrogatories to the same party without leave of the Court or a Justice.\n\n3 Copy to be filed\n\nA copy of the interrogatories delivered by a party shall be filed by him before the time at which they are delivered.\n\n4 Interrogatories to corporation or body politic\n\n(1) The affidavit in answer to interrogatories in the case of a body politic or corporate, or other body of persons empowered or allowed by law to sue or be sued, whether in its own name or in the name of an officer or other person, shall be made by the secretary or other proper officer, agent or servant of that body politic or corporate or other body.\n\n(2) An opposite party may apply for an order allowing him to deliver interrogatories to be answered by a specified officer, agent or servant of such a body as is mentioned in the last preceding subrule.\n\n5 Applications to set aside\n\n(1) 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.\n\n(2) An application to set aside interrogatories shall be made within fourteen days after service of the interrogatories.\n\n6 Affidavit in answer, filing\n\n(1) Interrogatories shall be answered by affidavit to be filed within fourteen days of their delivery or within such other time as a Justice allows.\n\n(2) A copy of the affidavit shall be delivered to the interrogating party before the time at which the affidavit is filed.\n\n7 Objections to interrogatories by answer\n\nAn objection to answering an interrogatory may be taken in the affidavit in answer:\n\n(a) on the ground that it is scandalous or irrelevant, not bona fide for the purpose of the proceeding, unreasonable, prolix, oppressive or unnecessary;\n\n(b) on the ground that the matters inquired into are not sufficiently material at that stage; or\n\n(c) on any other ground.\n\n8 Order to answer or answer further\n\nIf a person interrogated omits to answer or answers insufficiently, the party interrogating him may apply to the Court or a Justice for an order requiring him to answer, or to answer further, as the case may be, either by affidavit or upon oral examination.\n\n9 Application for discovery of documents\n\nA party may serve a notice in accordance with the form numbered 30 in the First Schedule upon another party to a proceeding requiring him to make discovery on oath of the documents which are or have been in his possession or power, relating to a matter in question in the proceeding.\n\n10 Affidavit of discovery\n\nWhere a party is served with a notice for discovery:\n\n(a) that party; or\n\n(b) where that party is a body politic or corporate, or any other body of persons empowered or allowed by law to sue or be sued whether in its own name or in the name of an officer or other person, the secretary or other proper officer, agent or servant of the body;\n\nshall, within fourteen days after service of the notice, make an affidavit in answer to the notice.\n\n11 Affidavit of documents\n\n(1) The affidavit to be made by a person on whom a notice for discovery of documents has been served shall specify which, if any, of the documents mentioned in the affidavit he objects to produce, and the grounds of his objection.\n\n(2) The affidavit shall be filed and a copy of the affidavit delivered to the party who served the notice for discovery within fourteen days of service of the notice.\n\n12 Production of documents\n\n(1) The Court or a Justice, at any time during the pendency of a proceeding, may order the production by a party to the proceeding, upon oath, of such of the documents in his possession or power, relating to a matter in question in the proceeding, as the Court or Justice thinks right.\n\n(2) The Court or Justice may deal with the documents, when produced, in such manner as appears just.\n\n13 Neglect to make discovery\n\nIf a party neglects or refuses to make discovery within the time limited or makes insufficient discovery, the Court or a Justice may order compliance with the notice for discovery upon such terms as it or he thinks fit.\n\n14 Inspection of documents referred to in pleadings or affidavits\n\n(1) A party may, at any time, by notice in writing, give notice to another party in whose writ, pleadings, particulars or affidavits reference is made to a document, to produce that document for the inspection of the party giving the notice, or of his solicitor, and to permit either of them to take copies of the document.\n\n(2) Where a party does not comply with a notice given under the last preceding subrule, he may not afterwards put a document referred to in the notice in evidence on his behalf in the proceeding except in accordance with the next succeeding subrule.\n\n(3) Where the party who has not complied with the notice satisfies the Court or a Justice that the document relates only to his own title, he being a defendant in the proceeding, or that he had some other cause or excuse which the Court or Justice deems sufficient for not complying with the notice, the Court or Justice may allow the document to be put in evidence on such terms as to costs and otherwise as the Court or Justice thinks fit.\n\n15 Time for inspection when notice given under rule 14; bank and trade books\n\nThe party to whom a notice to produce is given shall:\n\n(a) if all the documents referred to in the notice have been discovered by him in the affidavit referred to in rule 11 of this Order, within two days from the receipt of the notice; or\n\n(b) if any of the documents referred to in the notice have not been discovered by him in the affidavit, within fourteen days from the receipt of the notice to produce;\n\ndeliver to the party giving the notice to produce a notice stating:\n\n(c) a time within fourteen days from the delivery of that notice at which the documents, or such of them as he does not object to produce, may be inspected:\n\n(i) at the office of his solicitor;\n\n(ii) if he acts in person, at a place not more than three miles from the office of the Registry in which the proceeding is then pending; or\n\n(iii) in the case of banker’s books or other books of account or books in constant use for the purposes of a trade or business, at their usual place of custody; and\n\n(d) which, if any, of the documents he objects to produce, and on what ground.\n\n16 Order for inspection\n\n(1) If the party served with notice under rule 14 of this Order omits to give notice of a time for inspection under the last preceding rule, or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, or if he acts in person, elsewhere than at a place not more than three miles from the office of the Registry in which the proceeding is pending, the Court or Justice may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it or he thinks fit.\n\n(2) The order shall not be made unless the Court or a Justice is of the opinion that it is necessary either for disposing fairly of the proceeding or for saving costs.\n\n(3) An application for an order for inspection of documents, other than documents referred to in the writ, pleadings, particulars or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, shall be founded upon an affidavit showing:\n\n(a) the documents of which inspection is sought;\n\n(b) that the party applying is entitled to inspect them; and\n\n(c) that they are believed to be in the possession or power of the other party.\n\n(4) The Court or Justice shall not make an order for inspection of those documents unless the Court or Justice is of the opinion that it is necessary either for disposing fairly of the proceeding or for saving costs.\n\n17 Verified copies\n\n(1) Where inspection of business books is applied for, the Court or a Justice may, if it or he thinks fit, instead of ordering inspection of the original books, order a copy of any entries in those books to be furnished and verified by the affidavit of some person who has examined the copy with the original entries.\n\n(2) The affidavit shall state whether or not there are in the original book any, and what, erasures, interlineations and alterations.\n\n(3) Notwithstanding that the copy has been supplied, the Court or a Justice may order inspection of the book from which the copy was made.\n\n(4) When, on an application for an order for inspection, privilege is claimed for a document, the Court or a Justice may inspect the document for the purpose of deciding as to the validity of the claim of privilege.\n\n18 Power to order discovery of particular document or class of documents\n\n(1) The Court or a Justice may:\n\n(a) on the application of a party to a proceeding at any time; and\n\n(b) whether or not an affidavit of documents has already been made or ordered;\n\nmake an order requiring another party to state by affidavit:\n\n(c) whether a particular document or documents, or a class or classes of documents, specified or indicated in the application is or are, or has or have at any time been, in his possession, custody or power; and\n\n(d) if it or they is or are not then in his possession, custody or power, whether and when he parted with it or them and what has become of it or them.\n\n(2) The 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, custody or power the particular document or documents, or the class or classes of documents, specified or indicated in the application, and that they relate to a matter in question in the proceeding.\n\n19 Premature discovery\n\nIf the party from whom discovery of any kind or inspection is sought objects to the discovery or inspection, or a part of it, the Court or a Justice may, if satisfied:\n\n(a) that the right to the discovery or inspection sought depends on the determination of an issue or question in dispute in the proceeding; or\n\n(b) that for any other reason it is desirable that an issue or question in dispute in the proceeding should be determined before deciding upon the right to the discovery or inspection;\n\norder that that issue or question be determined first, and reserve the question as to the discovery or inspection.\n\n20 Non-compliance with order for discovery or inspection\n\n(1) If a party fails to comply with an order:\n\n(a) to answer interrogatories;\n\n(b) to give discovery or inspection of documents; or\n\n(c) to allow inspection of property;\n\nhe is liable to attachment.\n\n(2) If a party fails to answer interrogatories, to give discovery or inspection of documents or to allow inspection of property as required by these rules or by an order:\n\n(a) where that party is a plaintiff, his action may be dismissed for want of prosecution;\n\n(b) where that party is a defendant, his defence, if any, and counterclaim, if any, may be struck out;\n\n(c) where that party is a third party, his appearance may be set aside; and\n\n(d) where that party is a defendant who has given a third party notice, the notice may be set aside and the party placed in the same position as if he had not defended or appeared;\n\nand the party interrogating, seeking discovery or inspection of documents or inspection of property, as the case may be, may apply to the Court or a Justice for an order to that effect.\n\n21 Service on solicitor of order for discovery\n\n(1) Service of an order for interrogatories, discovery or inspection made against a party on his solicitor is sufficient service to found an application for an attachment for disobedience to the order.\n\n(2) 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.\n\n22 Attachment of solicitor\n\nWhen a solicitor to whom interrogatories for the examination of a party are delivered, or upon whom an order for interrogatories, a notice or order for discovery or an order for inspection is served, neglects, without reasonable excuse, to give notice of that delivery or service to his client, he is liable to attachment and the payment of such costs as the Court or a Justice thinks fit.\n\n23 Using answer to interrogatories at trial\n\n(1) Subject to the next succeeding subrule, a party may, at the hearing or trial of a proceeding, use in evidence any one or more of the answers, or part of an answer, of an opposite party to interrogatories without putting in the other answers, or the whole of that answer, as the case may be.\n\n(2) The Court or Justice may look at the whole of the answers and, if it or he is of opinion that any other of them, or the remaining part of an answer, is so connected with an answer, or part of an answer, proposed to be put in that that last-mentioned answer, or part of an answer, ought not to be used without the other answer, or part of answer, the Court or Justice may direct that an answer, or part of an answer, shall not be put in unless the other answer, or remaining part of an answer, is also put in.\n\n24 Discovery against Marshal\n\nIn an action against or by the Marshal or a Deputy Marshal in respect of a matter connected with the execution of his office, the Court or a Justice may, on the application of a party, order that the affidavit to be made in answer to interrogatories, or to a notice or order for discovery, shall be made by the officer actually concerned.\n\n25 Order to apply to infants\n\n(1) This Order applies to an infant plaintiff or defendant, and to the next friend of an infant plaintiff and the guardian ad litem of an infant defendant.\n\n(2) The Court or a Justice may order that any discovery or inspection of documents be made or given by some person on behalf of a party who is under a legal disability.\n\n  \n\nOrder 33 Admissions and notices to produce\n\n1 Notice of admission of facts\n\nA party may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or a part of the case of another party.\n\n2 Notice to admit documents\n\n(1) A party may, by notice in writing, at any time not later than seven days before the day for which the notice of trial has been given, or which otherwise has been appointed for trial, call upon another party to admit a document, saving all just exceptions.\n\n(2) If the other party desires to challenge the authenticity of the document, he shall, within seven days after service of the notice to admit, give notice that he does not admit the document and requires it to be proved at the trial.\n\n(3) If a notice given in pursuance of subrule (1) of this rule contains or is endorsed with a memorandum that, unless within seven days notice declining to admit the document is given, failure to give such notice will be deemed an admission of the document, and if the other party refuses or neglects to give notice of non-admission within the said last-mentioned seven days, he shall be deemed to have admitted the document, unless the Court or a Justice otherwise orders.\n\n(4) Where a party gives notice of non-admission within the time prescribed by subrule (2) of this rule and the document is proved at the trial, the Court or Justice may order the party who has not admitted the authenticity of the document to pay the costs of proving it.\n\n(5) Where a party proves a document without having given notice to admit under subrule (1) of this rule, the Court or Justice may order that that party shall not receive the costs of proving it.\n\n3 Notice to admit facts\n\n(1) A party may, by notice in writing, at any time not later than seven days before the day for which notice of trial has been given, or which has otherwise been appointed for trial, call upon another party to admit, for the purposes of the proceeding only, a specific fact or facts mentioned in the notice.\n\n(2) If that other party refuses or neglects to admit the fact or facts within three days after service of the notice, or within such further time as is allowed by the Court or a Justice, the Court may order the party who has not admitted the fact or facts to pay the costs of proving it or them.\n\n(3) An admission made in pursuance of a notice to admit facts shall be deemed to be made only for the purposes of the particular proceeding, and not as an admission to be used against the party on another occasion or in favour of a person other than the party giving the notice.\n\n(4) The Court or a Justice may at any time allow a party to amend or withdraw an admission made under this rule on such terms as are just.\n\n4 Judgment or order upon admissions of facts\n\n(1) A party may, at any stage of a proceeding where admissions of fact have been made, either on the pleadings or otherwise, apply to the Court or a Justice for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties.\n\n(2) The Court or a Justice may, upon an application under the last preceding subrule, make such order, or give such judgment, as the Court or Justice thinks just.\n\n5 Affidavit of signature to admissions\n\nAn affidavit of the solicitor for a party, or of the clerk of the solicitor, of the due signature of admissions made by that party in pursuance of a notice to admit documents or facts, is sufficient evidence of those admissions, if that evidence is required.\n\n6 Service of notice to produce documents\n\nAn affidavit of the solicitor for a party, or of the clerk of the solicitor, of the service of a notice to produce, and of the time when it was served, exhibiting a copy of the notice to produce, is sufficient evidence of the service of the notice, and of the time when it was served.\n\n7 Costs of notice where documents unnecessary\n\nlf a notice to admit or produce comprises documents which are not necessary, the costs occasioned by the inclusion of those documents in the notice shall be borne by the party giving the notice.\n\n  \n\nOrder 34 Issues, inquiries and accounts\n\n1 Issues may be prepared and settled\n\n(1) Where in a proceeding it appears to the Court or a Justice that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues.\n\n(2) The issues shall, if the parties differ, be settled by the Court or a Justice.\n\n2 lnquiries and accounts, when directed\n\nThe Court or a Justice may, at any stage of a proceeding, direct any necessary inquiries or accounts to be made or taken, notwithstanding that it appears that there is some special or further relief sought, or some special issue to be tried, as to which it is proper that ordinary procedure should apply.\n\n3 Special direction as to mode of taking account\n\nThe Court or a Justice may, either by the judgment or order directing an account to be taken or by a subsequent order:\n\n(a) give special directions with regard to the mode in which the account is to be taken or vouched; and\n\n(b) in particular, 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 contained in those books, with liberty to the parties to take such objections as they may be advised.\n\n4 Accounts to be verified by affidavit and items numbered\n\n(1) Where an account is directed to be taken, the accounting party, unless the Court or a Justice otherwise directs, shall make out his account and verify it by affidavit.\n\n(2) The items on each side of the account shall be numbered consecutively.\n\n(3) The account shall be referred to by the affidavit as an exhibit and filed in the Registry in which the proceeding is then pending.\n\n5 Mode of vouching accounts\n\nUpon the taking of an account, the Court or a Justice 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 may be contested or surcharged shall be brought before the Justice in Chambers.\n\n6 Surcharge\n\nA party intending to surcharge an accounting party shall give notice of his intention to the accounting party, stating, so far as he is able, the amount sought to be surcharged and the particulars of the amount in a concise manner.\n\n7 lnquiry as to outstanding personal estate\n\nA judgment or order for a general account of the personal estate of a testator or intestate shall contain a direction for an inquiry as to what parts, if any, of that personal estate are outstanding or undisposed of, unless the Court or a Justice otherwise directs.\n\n8 Accounts and inquiries to be numbered\n\nWhere by a judgment or order, whether made in Court or in Chambers, accounts are directed to be taken or inquiries to be made, the direction shall be numbered so that, as far as may be, each distinct account and inquiry may be designated by a number.\n\n9 Just allowances\n\nIn taking an account directed by judgment or order, all just allowances shall be made without any direction for that purpose.\n\n10 Registrar to report delay\n\nWhere there has been undue delay in the proceedings before the Registrar, he shall report to the Court or Justice by whom an account or inquiry was directed, or a matter or thing referred, the fact of that delay in the proceedings, and shall state, in his opinion, its cause.\n\n11 Expediting proceedings in case of undue delay\n\n(1) If it appears to the Court or a Justice, on the representation of a Registrar or otherwise, that there is undue delay in the prosecution of any accounts or inquiries, or in any other proceedings under a judgment or order, the Court or Justice may:\n\n(a) require the party having the conduct of the proceedings, or any other party, to explain the delay; and\n\n(b) thereupon make such order, as the circumstances of the case require, with regard to:\n\n(i) expediting the proceedings or the conduct or stay of the proceedings; and\n\n(ii) the costs of the proceedings.\n\n(2) For the purposes of the last preceding subrule, a party, or the Principal or a District Registrar, may be directed to summon the persons whose attendance is required, and to conduct such proceedings and carry out such directions as are given.\n\n(3) Any costs of the Registrar shall be paid by such parties or out of such funds as the Court or Justice directs and, if those costs be not otherwise paid, they shall be paid out of such moneys, if any, as may be provided by Parliament.\n\n  \n\nOrder 35 Questions of law and issues of fact without pleadings\n\nI Special case\n\n1 Special case by consent\n\n(1) The parties to a proceeding may concur in stating the questions of law arising in the proceeding in the form of a special case for the opinion of the Court or of the Full Court.\n\n(2) The 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 by the special case.\n\n(3) Upon the argument of the case the Court and the parties may refer to the whole contents of the documents stated.\n\n(4) The Court may draw from the facts and documents stated in the special case any inference, whether of fact or law, which might have been drawn from them if proved at a trial.\n\n2 Special case by order before trial\n\n(1) If it appears to the Court or a Justice that there is, in a proceeding, a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact determined, the Court or Justice may make an order accordingly and may direct that question of law to be raised for the opinion of the Court or of the Full Court, either by special case or in such other manner as the Court or Justice deems expedient.\n\n(2) Such other or further proceedings as the decision of the question of law may render unnecessary may thereupon be stayed.\n\n3 Special case to be prepared etc\n\n(1) A special case shall be:\n\n(a) prepared by the plaintiff or the party having the carriage of the proceedings;\n\n(b) signed by the several parties, their counsel or solicitors;\n\n(c) filed by the plaintiff or the party having the carriage of the proceedings in the Registry in which the proceeding is then pending.\n\n(2) A copy of the special case for the use of the Justice, or copies for the use of each of the Justices of the Full Court, shall be left in that Registry.\n\n4 Leave to set down where person under disability is a party\n\n(1) A special case in a proceeding to which an infant or person of unsound mind is a party shall not be set down for argument without leave of the Court or a Justice.\n\n(2) An application for leave under the last preceding subrule must be supported by sufficient evidence that the statements contained in the special case, so far as the same affect the interest of the infant or person of unsound mind, are true.\n\n5 Form of entry for argument\n\nA party may enter a special case for argument before the Court or the Full Court in accordance with the agreement of the parties or the order of the Court or a Justice:\n\n(a) by filing in the Registry in which the proceeding is then pending a memorandum of entry; and\n\n(b) if an infant or person of unsound mind is a party, by producing a copy of the order giving leave to enter the special case for argument.\n\n6 Notice of entry\n\nOn the day on which a special case is entered for argument the party entering it shall give written notice of the entry to all other parties.\n\n7 Agreement as to payment of money and costs\n\n(1) The parties to a special case may, if they think fit, enter into an agreement in writing that, on 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 a party to another party either with or without costs of the proceedings.\n\n(2) 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 upon that judgment forthwith unless otherwise agreed or unless stayed on appeal.\n\n8 Special case heard by Full Court in first instance\n\nA Justice may order that a special case, which has been set down for hearing before a single Justice, shall be argued before a Full Court.\n\nII Issues of fact without pleadings\n\n9 Trial of questions of fact agreed upon\n\n(1) When the parties to a proceeding 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 Justice, proceed to the trial of those questions of fact without formal pleadings.\n\n(2) The questions may be stated for trial in an issue in the form numbered 31 in the First Schedule, with such variations as the circumstances require.\n\n(3) The issue may be entered for trial and tried in the same manner as an issue joined in an ordinary action.\n\n(4) The proceedings shall be under the control and jurisdiction of the Court or Justice in the same way as the proceedings in an action.\n\n10 Order for payment of sum of money\n\nThe Court or a Justice may, by consent of the parties, order that, upon the finding in the affirmative or negative of the issue mentioned in the last preceding rule, 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 a party to another party either with or without the costs of the proceeding.\n\n11 Entry of judgment upon the finding\n\nUpon the finding on an issue such as is mentioned in rule 9 of this Order:\n\n(a) judgment may be entered for the sum so agreed or ascertained as mentioned in the last preceding rule, with or without costs, as the case may be; and\n\n(b) execution may issue upon that judgment forthwith;\n\nunless otherwise agreed or the Court or a Justice otherwise orders for the purpose of giving either party an opportunity for moving to set aside the finding or for a new trial or appealing.\n\n  \n\nOrder 36 Trial\n\nI Place\n\n1 Place of trial or hearing\n\nUnless the place of trial or hearing is fixed by an order of the Court or a Justice, the trial or hearing in a proceeding shall be at the place where is situated the Registry in which the proceeding is pending.\n\n2 Revoking or varying directions as to trial or hearing\n\nWhere an order has been made under this Order or Order 31 directing the place, time or mode of hearing or trial, the directions may be subsequently revoked or varied by the Court or a Justice.\n\nII Mode of trial\n\n3 Mode of trial\n\n(1) In every proceeding the mode of trial shall be by a Justice without a jury unless the Court or a Justice otherwise orders.\n\n(2) The Court or a Justice may at any time revoke or vary an order made under the last preceding subrule upon such terms as it or he thinks fit.\n\n4 Party seeking trial by jury\n\nA party to a proceeding may at any time, not (unless the Court or a Justice otherwise orders) being less than fourteen clear days before the date for which notice of trial has been given, apply to the Court or a Justice for an order under section 77B of the Judiciary Act for trial with a jury.\n\n5 Court may direct trial with jury at any time\n\nIf, in a proceeding, it appears to the Court or a Justice before or at the trial that an issue of fact could be more conveniently tried before a Justice with a jury, the Court or Justice may direct that it shall be so tried, and may for that purpose vary a previous order.\n\n6 Questions of fact may be tried differently, one before the other\n\n(1) Subject to the provisions of the preceding rules of this Order, the Court or a Justice may, in any proceeding, at any time or from time to time:\n\n(a) order that different questions or issues of fact arising in the proceeding be tried by different modes of trial, or that one or more questions or issues of fact be tried before the others; and\n\n(b) appoint the places for the trials.\n\n(2) The Court or Justice may, for any of the purposes specified in the last preceding subrule, vary a previous order.\n\n7 Number of Justices\n\nA trial of a question or issue of fact with a jury shall be by a single Justice unless the trial is specially ordered to be by two or more Justices.\n\nIII Notice of and entry for trial\n\n8 Notice of trial by plaintiff\n\nNotice of trial may be given with a joinder of issue closing the pleadings, or with the reply, or at any time after the close of pleadings or after the issues of fact are ready for trial.\n\n9 Notice of trial by defendant — motion to dismiss for want of prosecution\n\n(1) If the plaintiff does not give notice of trial:\n\n(a) within six weeks after he is first entitled to do so;\n\n(b) within the like period after a new trial is ordered; or\n\n(c) in either case, within such extended time as the Court or a Justice allows;\n\na defendant may, before notice of trial given by the plaintiff, give notice of trial or apply to the Court or a Justice to dismiss the action for want of prosecution.\n\n(2) On the hearing of the application the Court or a Justice may order the action to be dismissed accordingly or make any other appropriate order on such terms as are just.\n\n10 Form of notice of trial\n\nThe notice of trial shall state whether it is for the trial of the cause or of questions or issues in the cause, and shall name the place where, and the day on which, the trial is to be had.\n\n11 Length of notice\n\nTwenty-one days’ notice of trial shall be given unless the Court or a Justice otherwise orders or unless the party to whom it is given has consented, or is under terms, to take shorter notice.\n\n12 Entry of cause for trial\n\n(1) Notice of trial shall be given before entering the action or questions or issues for trial.\n\n(2) An action may be entered for trial, notwithstanding that the pleadings are not closed, provided that notice of trial has been given.\n\n13 Avoidance of notice of trial\n\nA notice of trial ceases to have effect unless the party making the entry for trial files in the Registry in which the proceeding is pending a copy of the notice of trial within seven days after the giving of the notice.\n\n14 Notice of trial\n\nNotice of trial of a cause or questions or issues before a Justice with a jury shall be for the first day of a sittings unless the Court or a Justice allows it to be given for a later day.\n\n15 Countermanding notice\n\nA notice of trial shall not be countermanded except by consent or by leave of the Court or a Justice, and that leave may be given subject to such terms as to costs, or otherwise, as are just.\n\n16 Entry for trial by party served with notice\n\nIf the party giving notice of trial omits to enter the action or questions or issues for trial on the day of, or the day after, giving notice of trial, the party to whom notice has been given may, within three days after the last-mentioned day, enter the same for trial unless in the meantime the notice has been countermanded under the last preceding rule.\n\n17 Entry by Registrar in list\n\nUpon the filing of the copy of notice of trial the Registrar shall, unless the Court or a Justice otherwise orders, enter the case in the list for trial upon the day mentioned in the notice or as soon after that day as is practicable.\n\n18 Time for entry before commencement of sittings\n\nUnless the Court or a Justice otherwise orders, a notice of trial shall cease to have effect if entry for trial required by these rules is not made at least seven clear days before the day appointed for the commencement of the sittings for which such notice has been given.\n\n19 Setting down of causes on further consideration\n\n(1) When a proceeding has been adjourned for further consideration, it may, after the expiration of seven days, and within fourteen days, from the filing of the Registrar’s certificate, on the written request of the party having the carriage of the proceedings or his solicitor, be set down by the Registrar in the Cause Book or in the Court Book, as the case may be, for further consideration.\n\n(2) After the expiration of fourteen days from the filing of the Registrar’s certificate, the proceedings may be set down by the Registrar on the written request of a party or his solicitor.\n\n(3) The judgment or order adjourning further consideration, or an office copy of that judgment or order, and an office copy of the Registrar’s certificate, or a memorandum of the date when the certificate was filed endorsed on the request by the proper officer, shall be produced on a setting down under this rule.\n\n(4) The request may be in the form numbered 53 in the First Schedule.\n\n(5) When the proceeding is set down under this rule, it shall not be put into the list for further consideration until after the expiration of seven days from the day on which the proceeding was so set down, and shall be marked in the Cause Book or in the Court Book, as the case may be, accordingly.\n\n(6) Notice of the putting of the proceeding into the list for further consideration shall be given by the Registrar to the other parties in the action at least four days before the day for which the proceeding is so marked for further consideration.\n\n(7) The notice under the last preceding subrule may be in the form numbered 54 in the First Schedule.\n\n20 Withdrawal of trial after entering\n\nUpon a request in writing signed by the plaintiff and all other parties (except, where appearance is necessary, such parties as have not appeared) that a proceeding entered for trial be withdrawn from the list of cases for trial for the next sittings of the Court at the place of the Registry in which the case is pending or from that list of cases for any specified length of time or until further notice to the Registrar, the Registrar may comply with the request, subject to any order of the Court or a Justice.\n\n21 Order of trial\n\nIf an entry for trial is duly made by a plaintiff and by a defendant, the defendant’s entry shall be vacated.\n\nIV Papers for Justice\n\n22 Copies of pleadings etc to be delivered\n\n(1) The party entering a proceeding for trial shall deliver to the proper officer two copies of the whole of the pleadings and of the issues, or of such other documents as show the questions for trial.\n\n(2) One of the copies shall be for the use of the Justice at the trial.\n\n(3) Where numerous letters or other documents are intended to be put in evidence, a party may provide copies of them, conveniently indexed and arranged, for the use of the Justice, and the costs of so doing shall be costs in the cause unless otherwise ordered.\n\nV Proceedings at hearing or trial\n\n23 Default of appearance by defendant at trial\n\nIf, when a trial is called on, the plaintiff appears and the defendant does not appear, then the plaintiff:\n\n(a) where he would have been entitled to final judgment for the whole or a part of his claim had default been made in appearance, shall be entitled to judgment for the whole or that part of his claim; and\n\n(b) in all other cases, may prove his claim so far as the burden of proof lies on him.\n\n24 Default of appearance by plaintiff\n\nIf, when a trial is called on, the defendant appears and the plaintiff does not appear, the defendant:\n\n(a) if he has no counterclaim, shall be entitled to judgment dismissing the action; or\n\n(b) if he has a counterclaim, then:\n\n(i) may prove the counterclaim so far as the burden of proof lies upon him; or\n\n(ii) in cases where, if plaintiff, he would have been entitled to judgment in default of appearance, shall be entitled to judgment without such proof.\n\n25 Default of appearance by both parties\n\nIf, when a trial is called on, neither the plaintiff nor the defendant appears, the case may be struck out and shall thereupon, unless the Court or a Justice otherwise orders, be wholly discontinued, and neither party shall be entitled to costs, but the case may be restored to the list for trial by order of the Court or a Justice upon such terms as are just.\n\n26 Judgment by default may be set aside on terms\n\n(1) A verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or a Justice upon such terms as may seem fit, upon an application made within fourteen days after the trial.\n\n(2) The application may be made at any sittings of the Court, and thereupon the Court or Justice may order the matter to be re-tried at the same or any other sittings of the Court.\n\n27 Adjournment of trial\n\nThe Justice may, at or before the trial, if he thinks it expedient for the interests of justice, postpone or adjourn the trial for such time, to such place and upon such terms, if any, as he thinks fit.\n\n28 Solicitor through whose default trial is delayed may be ordered to pay costs\n\nWhere, upon a trial, it appears that it cannot conveniently proceed by reason of the solicitor for a party:\n\n(a) having neglected to attend personally or by some proper person on his behalf; or\n\n(b) having omitted to deliver any paper necessary for the use of the Court or a Justice which, according to practice, ought to have been delivered;\n\nthat solicitor shall personally pay to all or any of the parties such costs as the Justice or Court thinks fit to award.\n\n29 Evidence in mitigation of damages in action for libel or slander\n\nWhere, in an action for libel or slander, the defendant does not by his defence assert the truth of the statement complained of, he may not on the trial give evidence in chief, with a view to mitigation of damages:\n\n(a) as to the circumstances in which the libel or slander was published; or\n\n(b) as to the character of the plaintiff;\n\nwithout the leave of the Justice, unless fourteen days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.\n\n30 Disallowance of vexatious question in cross‑examination\n\nThe Justice may in all cases disallow a question put in cross‑examination of a party or other witness which appears to him to be vexatious and not relevant to a matter proper to be enquired into in the case or matter.\n\n31 Judgment to be entered at or after trial\n\nThe Justice, at or after trial, shall direct judgment to be entered as he thinks right upon motion for judgment which may be made forthwith without notice.\n\n32 No non-suit\n\nThere is no judgment of non-suit.\n\n33 Times of commencement and termination of trial\n\n(1) The Registrar, Associate or other proper officer, present at a hearing or trial, shall make a note of the times at which that hearing or trial commences and terminates, and of the time actually occupied by it on each day on which it takes place, for communication to the taxing officer if required.\n\n(2) The Justice may, if he considers the time occupied has been excessive, certify what time ought to have been so occupied, and that certificate is final.\n\n(3) A certificate of a Justice under the last preceding subrule shall be communicated to the taxing officer by the Registrar, Associate or other proper officer, as the case may be.\n\n34 Entry of findings of fact on trial\n\nUpon a hearing or trial where the officer present at the trial is not the officer by whom judgments ought to be entered, the Associate or other proper officer present at the trial shall enter, in a book to be kept for the purpose:\n\n(a) all such findings of fact as the Justice directs to be entered;\n\n(b) the directions, if any, of the Justice as to judgment; and\n\n(c) the certificates, if any, granted by the Justice.\n\n35 Certificate for entry of judgment\n\n(1) If the Justice directs that a judgment be entered for a party absolutely, the certificate of the Associate or other proper officer to that effect is a sufficient authority to the proper officer to enter judgment accordingly.\n\n(2) The certificate shall be in the form numbered 32 in the First Schedule, with such variations as the circumstances require.\n\n(3) If the Justice directs that a judgment be entered for a party subject to leave to move, judgment shall be entered accordingly upon the filing of the certificate of the Associate or other proper officer.\n\nVI Writ of inquiry and reference as to damages\n\n36 Application of Rules\n\nRules 11, 12, 15, 26, 27 and 29 of this Order apply, with the necessary modifications, to an inquiry for the assessment of damages.\n\n37 Writ of trial and inquiry abolished\n\nA writ of trial or of inquiry as to damages shall not be used but the inquiry shall in every case be had and made without a writ for that purpose or as the Court or a Justice directs.\n\n38 Ascertainment of damages where a matter of calculation\n\n(1) Where in a proceeding it appears to the Court or a Justice that the amount of damages sought to be recovered is substantially a matter of calculation, the Court or a Justice may direct that the amount for which final judgment is to be entered shall be ascertained by a Registrar.\n\n(2) The attendance of witnesses and the production of documents before the Registrar may be compelled by subpoena.\n\n(3) The Registrar may adjourn the inquiry from time to time.\n\n(4) The Registrar shall endorse upon the order for referring the amount of damages to him the amount found by him, and shall deliver the order with that endorsement to the person entitled to the damages.\n\n(5) Such and the like proceedings may thereupon be had as to entering judgment, taxation of costs and otherwise as upon the finding of a Justice upon an issue.\n\n39 Damages in respect of continuing cause of action\n\nWhere damages are to be assessed in respect of a continuing cause of action, they shall be assessed down to the time of the assessment.\n\n  \n\nOrder 37 Evidence\n\nI Office copies\n\n1 Obtaining office copies\n\nA person may bring into a Registry a copy of a document in the Registry to be checked and marked and delivered out as an office copy.\n\n2 Office copies admissible in evidence\n\nAn office copy of a writ, record, pleading or document filed in the Court is admissible in evidence in all proceedings, and between all persons or parties, to the same extent as the original is admissible.\n\nII Examination of witnesses upon commission etc\n\n3 Court or Justice may order depositions to be taken\n\n(1) The Court or a Justice may, in any proceeding, if it appears necessary for the purpose of justice:\n\n(a) make an order for the examination upon oath before the Court, Justice, an officer of the Court or any other person, and at any place, of a witness or person; and\n\n(b) may empower a party to the proceeding to give the deposition in evidence in the proceeding on such terms, if any, as the Court or a Justice directs.\n\n(2) The Court or Justice may give directions with respect to the procedure to be followed in and in relation to the examination.\n\n(3) In this rule deposition includes a document, or a certified copy of a document, produced at the examination and any answers made, or reduced into writing, to any written interrogatories presented at the examination.\n\n4 Letters of request\n\n(1) Where the Court or a Justice so orders, a request to examine witnesses shall be issued.\n\n(2) The forms numbered 45 and 46 in the First Schedule shall be used for the order and the request respectively, with such variations as the circumstances require.\n\n5 Examination of witnesses abroad\n\nWhere an order is made for the issue of a request to examine a witness or witnesses in a foreign country with which a Convention in that behalf has been made and extended to the Commonwealth or to a State or Territory:\n\n(a) the party obtaining the order shall file in the registry in which the matter is then pending an undertaking in the form numbered 48 in the First Schedule, with such variations as the circumstances require; and\n\n(b) the undertaking shall be accompanied by:\n\n(i) a request in the form numbered 49 in the First Schedule, with such variations as are directed in the order for its issue;\n\n(ii) a translation of the request in the language of the country in which it is to be executed;\n\n(iii) a copy, and a translation, of the interrogatories, if any, to accompany the request; and\n\n(iv) a copy, and a translation, of the cross-interrogatories, if any.\n\n6 Form of order for examination of witnesses abroad\n\nWhere an order is made for the examination of a witness before the British or Australian Consular authority in a foreign country with which a Convention in that behalf has been made and extended to the Commonwealth or to a State or Territory, the order shall be in the form numbered 44 in the First Schedule, with such variations as the circumstances require.\n\n7 Order for attendance of person to produce\n\n(1) The Court or a Justice may, in any proceeding at any stage and upon such terms as it or he thinks reasonable, order the attendance, at any time or place, either before the Court, a Justice, an officer of the Court or other person, of a person, including a party, for the purpose of:\n\n(a) producing any writings or other documents named in the order which the Court or Justice thinks fit to be produced; or\n\n(b) being examined viva voce.\n\n(2) A person shall not be compelled to produce under such an order a writing or other document, or to answer a question, which he could not be compelled to produce or answer at the hearing or trial.\n\n8 Disobedience to order for attendance\n\nA person wilfully disobeying an order requiring his attendance for the purpose of being examined or producing a document is guilty of contempt of court.\n\n9 Expenses of person ordered to attend\n\nA person required to attend for the purpose of being examined or producing a 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.\n\n10 Examiner to have copy of writ and pleadings\n\nWhere a witness or person is ordered to be examined before an officer of the Court or before a 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.\n\n11 Examination, how taken\n\nThe examination shall take place in the presence of the parties, or their counsel, solicitors or agents, and a witness is subject to cross‑examination and re-examination.\n\n12 Depositions to be taken down in writing, read over to and signed by witness, or if he refuses, by the examiner\n\n(1) The depositions taken before an officer of the Court, or before another person appointed to take the examination, shall be taken down in writing by, or in the 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.\n\n(2) When completed the depositions shall be read over to the witness and signed by him in the presence of the parties or such of them as attend.\n\n(3) If the witness refuses to sign the depositions, the examiner shall sign them.\n\n(4) The examiner may put down a particular question or answer at length if there should appear any special reason for doing so, and may put a question to the witness as to the meaning of an answer or as to a matter arising in the course of the examination.\n\n(5) When objection is made to a question, the examiner shall:\n\n(a) record in the depositions the question and the objection and his opinion on the objection; and\n\n(b) state his opinion to the counsel, solicitors or parties;\n\nbut he may not decide upon the materiality or relevancy of a question.\n\n13 Refusal of witness to attend or to be sworn\n\n(1) If a person duly summoned by subpoena to attend for examination refuses to attend, or if, having attended, he refuses to be sworn or to answer a lawful question, a certificate of that refusal, signed by the examiner, shall be filed at the Registry in which the proceeding is then pending.\n\n(2) Upon the filing of the certificate, the party requiring the attendance of the witness may apply to the Court or a Justice ex parte or on notice for an order directing the witness to attend, or to be sworn, or to answer a question, as the case may be.\n\n14 Objection by witness to questions\n\n(1) If a witness objects to a question which is put to him before an examiner, the question so put, and the objection of the witness to the question, shall be taken down by the examiner and transmitted by him to the Registry in which the proceeding is then pending, and there filed.\n\n(2) The validity of the objection shall be decided by the Court or a Justice.\n\n15 Depositions to be transmitted to Registry\n\n(1) When the examination of a witness before an examiner has been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the Registry in which the proceeding is pending, and there filed.\n\n(2) A party may have a copy of the depositions, or of a part of the depositions, on payment of the prescribed fee.\n\n16 Special report by examiner\n\n(1) The person taking the examination of a witness under these rules may make a special report to the Court touching the examination and the conduct or absence of a witness or other person.\n\n(2) The Court or a Justice may direct such proceedings and make such order as upon the report it or he thinks just.\n\n17 Depositions not to be given in evidence without consent or by leave of Justice\n\n(1) Except where otherwise provided by this Order or directed by the Court or a Justice, a deposition shall not be given in evidence at a hearing or trial without the consent of the party against whom it is offered unless the Court or Justice is satisfied that the deponent is dead, beyond the Commonwealth, or unable from sickness or other infirmity or good cause to attend the hearing or trial.\n\n(2) Where the Court or Justice is so satisfied, the deposition, certified under the hand of the person taking the examination, is admissible in evidence, saving all just exceptions, without proof of the signature to the certificate.\n\n18 Oaths\n\nAn officer of the Court, or other person directed or authorized to take the examination of a witness or person, or a person nominated or appointed to take the examination of a witness or person pursuant to the provisions of a Convention made with a foreign country and extended to the Commonwealth or to a State or Territory, may administer oaths.\n\n19 Attendance of witness under subpoena for examination or to produce\n\n(1) A party in any proceeding may by subpoena ad testificandum or duces tecum require the attendance of a witness before an officer of the Court, or other person appointed to take the examination, for the purpose of using his evidence in the proceeding in like manner as that witness would be bound to attend and be examined at the hearing or trial.\n\n(2) A person who has made an affidavit to be used on any proceeding shall be bound, on being served with such a subpoena, to attend before the officer or other person for cross-examination.\n\n20 Evidence taken after trial\n\nEvidence taken subsequently to a hearing or trial shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial.\n\n21 Practice as to taking evidence at any stage\n\nThe practice with reference to the examination, cross-examination and re-examination of witnesses at a trial is applicable to evidence taken in a proceeding at any stage.\n\n22 Special directions as to taking evidence\n\nThe 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 a proceeding after the hearing or trial, is subject to any special directions which may be given in any case.\n\n23 Evidence in proceedings subsequent to trial\n\nEvidence taken at a hearing or trial may be used in any subsequent proceedings in the same case.\n\nIII Subpoena\n\n24 Form of praecipe for a subpoena\n\n(1) Where it is intended to sue out a subpoena, a praecipe for that purpose in the form numbered 35 in the First Schedule shall be delivered and filed at the Registry in which the proceeding is then pending.\n\n(2) The praecipe shall state the name, or the name of the firm, and the place of business or residence of the solicitor (or of the party himself if he acts in person) intending to sue out the subpoena, and, where the solicitor is acting as agent only, then also the name or firm name and place of business or residence of the principal solicitor.\n\n25 Form of writ of subpoena\n\nA writ of subpoena shall be in one of the forms numbered 37 to 39 in the First Schedule, with such variations as the circumstances require.\n\n26 Subpoenas in District Registry\n\nWhere entry for trial or hearing has been made at a District Registry, a writ of subpoena may be sued out by a party, and may be issued out of the Principal Registry or out of a District Registry, notwithstanding that the proceeding is not pending in that Registry.\n\n27 Subpoena for attendance of witness in Chambers\n\nWhen a subpoena is required for the attendance of a witness for the purpose of proceedings in Chambers, the subpoena shall issue from any Registry upon a note from a Justice.\n\n28 Subpoena for attendance before Registrar\n\nWhen a subpoena is required for the attendance of a witness for the purpose of proceedings before a Registrar or other officer of the Court, the subpoena shall be issued upon the direction of a Registrar or that officer.\n\n29 Number of persons in a subpoena other than a subpoena duces tecum\n\n(1) A subpoena, other than a subpoena duces tecum, may contain any number of names.\n\n(2) Names of witnesses may be inserted in a subpoena after the issue of the writ of subpoena without re-sealing where the subpoena contains the name of at least one witness and the words “and others”.\n\n30 Number of persons in subpoena duces tecum\n\n(1) No more than three persons shall be included in one subpoena duces tecum.\n\n(2) The party suing out a subpoena duces tecum may sue out a subpoena for each person if he thinks fit.\n\n31 Correction of errors in subpoena\n\nIn the interval between the suing out and service of a subpoena the party suing out the subpoena may correct any error in the names of parties or witnesses, and may have the writ re-sealed upon leaving a corrected praecipe of the subpoena marked with the words “altered and re-sealed” and signed with the name and address of the solicitor or party suing it out.\n\n32 Service of subpoena\n\n(1) The service of a subpoena shall be effected by delivering a copy of the subpoena, and of the endorsement on the subpoena, and at the same time producing the original.\n\n(2) The copy of a subpoena for a witness served upon him need not contain the name of any witness other than the person served.\n\n33 Affidavit to prove service of subpoena\n\nAn affidavit filed for the purpose of proving the service of a subpoena upon a person shall state when, where, how and by whom the service was effected.\n\n34 Within what time subpoena can be served\n\n(1) The service of a subpoena is not valid if not made within twelve weeks after the date of issue of the subpoena.\n\n(2) If the subpoena is served within that period, it remains in force from the date of issue until completion of the trial or hearing of the proceeding in which it is issued.\n\nIV Shorthand notes\n\n35 Shorthand notes\n\n(1) The Court or a Justice, or, in proceedings before a Registrar, upon the application of a party, the Registrar, may order or direct that viva voce evidence and any rulings or directions shall be taken down in shorthand and transcribed.\n\n(2) The Court, a Justice or the Registrar may give all necessary directions for the appointment of shorthand writers and the transcription of the evidence, rulings and directions.\n\n(3) The costs of and incidental to taking down evidence, rulings and directions in shorthand, and transcribing the shorthand notes, is in the discretion of the Court or a Justice, but the Registrar may certify how in his opinion the costs should be borne.\n\n  \n\nOrder 38 Court experts\n\n1 Interpretation\n\nIn this Order, unless the contrary intention appears:\n\n> Court expert means an independent expert appointed under the next succeeding rule to inquire into and report upon a question of fact or opinion.\n\n> expert includes a scientific person, a lawyer, a medical man, an engineer, an accountant, an actuary, an architect, a surveyor or other skilled person whose opinion on a question relevant to the issues involved would be received by the Court.\n\n> issue for the expert means a question of fact or opinion which a Court expert is required to inquire into and report upon.\n\n2 Application to appoint independent expert\n\nIn a case which is to be tried or heard without a jury and which involves a question for an expert witness, the Court or a Justice may in its or his discretion at any time on the application of a party, appoint an independent expert to inquire into and report upon a question of fact or of opinion not involving questions of law or construction.\n\n3 The report of Court expert\n\n(1) The report, so far as it is not accepted by all parties, shall be treated as information furnished to the Court and shall be given such weight as the Court thinks fit.\n\n(2) The report shall be made in writing to the Court, together with such carbon or other copies as the Court requires.\n\n(3) Copies of the report shall be forwarded by the proper officer to the parties or to their solicitors.\n\n4 Cross-examination\n\n(1) A party may, within fourteen days after receipt of a copy of the report or within such other time as the Court or Justice directs, apply for leave to cross-examine the Court expert on his report.\n\n(2) The Court or Justice shall on an application made under the last preceding subrule:\n\n(a) make an order for the cross-examination of the Court expert by all parties at the trial or hearing, he being called and sworn at such stage as the Court at the hearing directs; or\n\n(b) make an order for a like cross-examination before an examiner at such time and place as the Court or Justice directs.\n\n5 Nomination and instructions\n\n(1) The Court expert shall, if possible, be a person agreed between the parties, but, failing agreement, he shall be nominated by the Court or a Justice.\n\n(2) The question or the instruction submitted or given to the Court expert, failing agreement between the parties, shall be settled by the Court or Justice.\n\n6 Experiments\n\n(1) If the Court expert is of the opinion that an experiment or test of any kind (other than an experiment or test of a trifling character) is necessary to enable him to report in a satisfactory manner, he shall communicate the fact to the parties or their solicitors and shall endeavour to arrange with them with respect to the expenses involved, the persons to attend and other similar matters.\n\n(2) Failing agreement between the parties, those matters shall be determined by the Court or Justice.\n\n7 Further report\n\nThe Court or Justice may at any time direct the Court expert to make a further or supplemental report which shall be treated as annexed to his original report.\n\n8 Remuneration\n\n(1) The remuneration of the Court expert shall be fixed by the Court or Justice and shall include:\n\n(a) a fee for making the report and a fee for any supplementary report; and\n\n(b) a sum for each day during which the presence of the Court expert is required either in Court or before an examiner.\n\n(2) The parties shall be jointly and severally liable to pay the remuneration so fixed without prejudice to the question by whom it shall be ordered to be paid as part of the costs of the proceedings.\n\n(3) Where the appointment of a Court expert is opposed, the Court or Justice may require the party applying for the appointment to give such security for the remuneration of the Court expert as the Court or Justice thinks proper as a condition of making the appointment.\n\n9 Several issues\n\nWhere more than one issue for the expert arises, the Court or a Justice may appoint more than one Court expert to inquire into and report on the separate issues so arising, and these rules apply to each Court expert so appointed.\n\n10 Costs of proceedings\n\nIn taxing the costs incurred in proceedings in which a Court expert has been appointed, such just and reasonable charges and expenses shall be allowed as appear to have been properly incurred in obtaining the advice of an expert, whether called as a witness or not, with respect to:\n\n(a) whether a proceeding should be brought or defended;\n\n(b) whether the report or reports of the Court expert should be accepted to any and what extent;\n\n(c) the matters on which he might properly be cross-examined upon his report or reports; and\n\n(d) if proper, the attendance in Court of the expert so employed.\n\n  \n\nOrder 39 Affidavits and depositions\n\n1 Evidence on motions etc\n\n(1) Upon a motion, petition or summons, evidence may be given by affidavit.\n\n(2) The Court or a Justice may, on the application of a party, order the attendance for cross-examination of the person making the affidavit.\n\n(3) If the person does not attend, his affidavit shall not be read as evidence without the leave of the Court or a Justice.\n\n2 Title of affidavits\n\n(1) An affidavit shall be entitled in the proceeding, if any, in which it is sworn, and bear the number, if any, of the proceeding.\n\n(2) When there are more than one plaintiff or defendant, it is 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.\n\n(3) The costs occasioned by unnecessary prolixity in a title shall be disallowed by the taxing officer.\n\n3 Contents of affidavit\n\n(1) An affidavit shall, except as provided by subrule (3) of this rule, be confined to such facts as the witness is able of his own knowledge to prove.\n\n(2) The costs of an affidavit which unnecessarily sets forth matters of hearsay, argumentative matter or copies of or extracts from documents shall be paid by the party filing the affidavit.\n\n(3) On interlocutory proceedings or by leave under Order 31, rule 2, an affidavit may contain statements of information and belief with the sources and grounds of that information and belief.\n\n4 Exhibits\n\n(1) Documents and other objects and things referred to by affidavit shall not be annexed to the affidavit or referred to in the affidavit as annexed, but shall be referred to as exhibits.\n\n(2) Instead of making a document an exhibit to an affidavit the relevant portion of the document may be included in the body of the affidavit and the party filing the affidavit shall in that case produce the document whenever the affidavit is used.\n\n5 Certificate on exhibit\n\nAn exhibit to an affidavit shall have endorsed on it the short title of the proceeding, if any, and the number, if any, of the proceeding, and a certificate signed by the person before whom the affidavit is sworn or taken identifying the exhibit with the affidavit to which it is an exhibit.\n\n6 Use of figures\n\nIn an affidavit for use in Court or in Chambers, dates and sums of money shall be written or printed in figures instead of words.\n\n7 Before whom affidavits may be sworn\n\n(1) An affidavit may be sworn before a Justice, a Registrar, a person having authority to administer an oath and to take and receive affidavits for the purposes of the Federal Court of Australia, or the Supreme Court of a State or Territory, or a Justice of the Peace, whose name, title and the date when and the place where the affidavit was sworn shall be stated in the jurat.\n\n(2) Where the seal or signature, as the case may be, of a person authorized under this rule to take an affidavit is attached, appended or subscribed to an affidavit, the Court, the Justices and officers of the Court shall take judicial notice of that seal or signature.\n\n(3) A person, other than a Justice of the Peace, before whom an affidavit is sworn or affirmed, or who attests the execution of an instrument of security, may charge the fees set out in the following table:\n\n|                                                                                                     | $    |\n| --------------------------------------------------------------------------------------------------- | ---- |\n| For each oath or affirmation........................                                                | 0.25 |\n| If not at Registry or Commissioner’s Office............                                             | 0.50 |\n| If more than three miles from Registry or Commissioner’s Office, in addition to travelling expenses | 2.10 |\n| For signing an exhibit............................                                                  | 0.10 |\n| For attesting each instrument of security, for each surety.....                                     | 0.50 |\n\n8 Affidavits etc how to be sworn and taken abroad\n\n(1) An examination, affidavit, declaration or affirmation in proceedings pending in the Court may be sworn and taken in a place under the dominion of Her Majesty out of the Commonwealth before a Judge, Court, Notary Public or person lawfully authorized to administer oaths in that place, and in foreign parts out of Her Majesty’s dominions, before any of Her Majesty’s Consuls or Vice-Consuls or a Notary Public.\n\n(2) The title of the Court or person before whom an examination, affidavit, declaration or affirmation is sworn and taken under the last preceding subrule, and the date when and the place where it was so sworn and taken, shall be stated in that examination, affidavit, declaration or affirmation.\n\n(3) Where the seal or signature, as the case may be, of a Court or person authorized under this rule to take an examination, affidavit, declaration or affirmation is attached, appended or subscribed to an examination, affidavit, declaration, affirmation, or any other deed or document, the Court, the Justices and officers of the Court shall take judicial notice of the seal or signature.\n\n9 Form of affidavits\n\n(1) An affidavit shall be drawn up in the first person and divided into paragraphs.\n\n(2) Every paragraph in an affidavit shall be numbered consecutively and, as nearly as may be, confined to a distinct portion of the subject.\n\n(3) An affidavit shall be written, typewritten or printed.\n\n(4) Costs shall not be allowed for an affidavit or part of an affidavit substantially departing from this rule.\n\n10 Description and abode of deponent to be stated\n\nAn affidavit shall state the description and true place of abode of the deponent.\n\n11 Affidavits made by two or more deponents\n\n(1) Subject to the next succeeding subrule, in an affidavit made by two or more deponents the names of the several deponents making the affidavits shall be inserted at length in the jurat.\n\n(2) If the affidavit of all the deponents is taken at one time before the same person, it shall be sufficient to state that it was sworn by both, or all, of the “abovenamed” deponents.\n\n12 Filing before using\n\nAn affidavit to be used before the Court or a Justice shall be filed before it is used unless otherwise directed by the Court or a Justice.\n\n13 Affidavits to be filed in proper Registry\n\n(1) An affidavit used in any proceeding shall be filed in the proper Registry.\n\n(2) There shall be endorsed on an affidavit a note stating the name of the deponent, the date of swearing and on whose behalf it is filed.\n\n(3) An affidavit shall not be filed or used without such a note unless the Court or a Justice otherwise directs.\n\n14 Scandalous matter\n\nThe Court or a Justice may order to be struck out from an affidavit any matter which is scandalous or irrelevant and may order the costs of an application to strike out such matter to be paid as between solicitor and client.\n\n15 Alterations in affidavits\n\nWhen in the jurat or body of an affidavit there is an interlineation, alteration or erasure, the affidavit shall not, without leave of the Court or a Justice, be read or made use of in any proceeding unless:\n\n(a) 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 the Principal or a District Registry, either by his initials or by the stamp of that Registry; and\n\n(b) in the case of an erasure, the words or figures appearing at the time of taking the affidavit to be written on the erasure are rewritten and signed or initialled in the margin of the affidavit by the person taking it.\n\n16 Affidavits by illiterate or blind persons\n\n(1) Where an affidavit is sworn by a deponent who appears to the person before whom the affidavit is taken to be illiterate or blind, that person shall certify in the jurat that:\n\n(a) the affidavit was read in his presence to the deponent;\n\n(b) the deponent seemed perfectly to understand it; and\n\n(c) the deponent made his or her mark or signature in the presence of that person.\n\n(2) The affidavit shall not be used in evidence without such a certificate unless the Court or a Justice is otherwise satisfied that the affidavit was read over to the deponent and that he appeared to understand it perfectly.\n\n17 Affirmations\n\nWhen a deponent does not take an oath, the form of jurat shall be varied and the necessary alterations made so as to conform with the solemn affirmation or declaration of the deponent.\n\n18 Use of defective affidavit\n\nThe Court or a Justice may receive an affidavit notwithstanding a defect by misdescription of parties or otherwise in the title or jurat or any other irregularity in its form, and may direct a memorandum to be made on the document that it has been so received.\n\n21 Special times for filing affidavits\n\nWhere a special time is limited for filing affidavits, an affidavit filed after that time shall not be used except by leave of the Court or a Justice.\n\n22 Affidavits in support of ex parte applications\n\nExcept by leave of the Court or a Justice, an order made ex parte in Court founded on an affidavit is not of any force unless the affidavit on which the application was made was actually made before the order was applied for, and was produced or filed at the time of making the application.\n\n23 Copies of affidavits to be served\n\n(1) Copies of an affidavit intended to be used by a party in a proceeding in Court or in Chambers or before a Registrar shall be delivered to all other parties at the same time as the notice, if any, of the application to be made in the proceeding, or a reasonable time before the hearing.\n\n(2) When a party intends to adduce oral evidence on the hearing of an application or upon a reference, he shall serve on all other parties notice of that intention a reasonable time before the hearing.\n\n24 Alterations in accounts to be initialled\n\nAn alteration in an account verified by affidavit to be left at Chambers or in a Registry shall be marked with the initials of the person before whom the affidavit is sworn or taken, and the alteration shall not be made by erasure.\n\n  \n\nOrder 40 Exhibits\n\n1 List of exhibits\n\n(1) The Associate, Registrar or other proper officer:\n\n(a) shall take charge of every document or object put in as an exhibit during the trial or hearing of any proceeding;\n\n(b) shall mark or label every exhibit so as to indicate the party by whom the exhibit was put in and so that all exhibits put in by a party are lettered or numbered consecutively; and\n\n(c) shall cause a list of all the exhibits in the proceeding to be made in accordance with form numbered 50 in the First Schedule.\n\n(2) The list of exhibits when completed shall form part of the record of the proceeding.\n\n(3) For the purpose of this Order, a bundle of documents may be treated and counted as one exhibit.\n\n2 Office copy of list of exhibits\n\n(1) A party may apply for and, on payment of the prescribed fee, obtain an office copy of the list of exhibits for the purpose of an appeal.\n\n(2) Where there is an appeal, the appellant shall include an office copy of the list of exhibits amongst the documents supplied to the proper officer for the purpose of the appeal.\n\n  \n\nOrder 41 New trials\n\n1 New trial of cause heard without a jury\n\n(1) If, after a trial or hearing of a cause or matter before a Justice without a jury, an order setting aside the judgment or a finding, or directing a new trial, is sought upon the ground of discovery of fresh evidence, fraud, surprise or any other ground not falling within the Appellate Jurisdiction, the application shall be made to a Full Court by motion on notice.\n\n(2) The application may be made although an appeal against the judgment is instituted by the applicant and, in such a case, the proceedings may be combined.\n\n2 New trial of cause tried with a jury\n\n(1) An application for a new trial, or to set aside a verdict, finding or judgment, in a cause or matter in which a verdict has been found or a finding made by a jury, shall be made to a Full Court by motion on notice.\n\n(2) No rule nisi or order to show cause, or other formal proceeding, other than the notice of motion, shall be made or taken.\n\n(3) The notice of motion shall state the grounds of the application and whether the whole or part only of the verdict, finding or judgment is complained of.\n\n3 Service of notice of motion\n\n(1) The notice of motion shall be served upon the party in whose favour the judgment was given within twenty-one days after the conclusion of the trial, or the date of the pronouncing of the judgment upon further consideration, as the case may be, or within such extended time as the Court or a Justice allows.\n\n(2) In the computation of the period referred to in this rule, the time of the vacations shall be included.\n\n4 Application of rules relating to appeals\n\nThe provisions of these rules relating to appeals apply, so far as applicable, to applications under this Order.\n\n5 Hearing of application\n\n(1) Upon the hearing of an application for a new trial or to set aside the verdict or finding of a jury, the Court may, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them or for awarding any relief sought, give judgment accordingly, and may for that purpose draw any inference of fact not inconsistent with the findings, if any, of the jury.\n\n(2) If the Court is of opinion that it has not sufficient materials before it to enable it to give judgment, it may direct that the motion stand over for further consideration, and may also direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it thinks fit.\n\n6 Evidence of Judge’s direction\n\nIf, upon the hearing of an application for a new trial or to set aside a verdict or finding of a jury, a question arises as to the ruling or direction of the Justice to the jury, the Court shall have regard to the Justice’s notes and to such evidence or materials as the Court deems expedient.\n\n  \n\nOrder 42 Motion for judgment\n\n1 Judgment on motion for judgment\n\nExcept where by an Act or 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 for judgment.\n\n2 Setting down motion for judgment where issues have been directed to be tried\n\n(1) Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, the plaintiff may set down a motion for judgment as soon as those issues or questions have been determined.\n\n(2) If the plaintiff does not set down such a motion and give notice thereof to the other parties within seven days after his right so to do has arisen, then, after the expiration of that period of seven days, a defendant may set down a motion for judgment and give notice thereof to the other parties.\n\n3 Where some only of issues directed have been tried, any party may apply to set down action on motion for judgment\n\n(a) issues have been ordered to be tried, or issues or questions of fact to be determined in any manner; and\n\n(b) some only of those issues or questions of fact have been tried or determined;\n\na party who considers that the result of the trial or determination:\n\n(c) renders the trial or determination of the others of them unnecessary; or\n\n(d) renders it desirable that the trial or determination of them should be postponed;\n\nmay apply to the Court or a Justice for leave to set down a motion for judgment without waiting for that trial or determination.\n\n(2) The Court or a Justice may, if satisfied of the expediency of so doing, give such leave, upon such terms, if any, as appears just, and may give any directions which appear desirable as to postponing the trial of the other issues of fact.\n\n4 Motion to be set down within one year\n\nA motion for judgment shall not, except by leave of the Court or a Justice, be set down after the expiration of one year from the time when the party seeking to set down the motion first became entitled so to do.\n\n5 Where judgment given etc on motion for judgment\n\nUpon a motion for judgment, the Court may draw all inferences of fact, not inconsistent with the verdict or findings of the jury if the trial was with a jury, and:\n\n(a) if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly; or\n\n(b) if it is of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it thinks fit.\n\n  \n\nOrder 43 Entry of judgments\n\n1 Mode of entry\n\n(1) Every judgment shall be entered by the proper officer in a book kept for that purpose.\n\n(2) The party entering the judgment shall deliver to the officer a copy of the pleadings, if any, not already filed.\n\n2 Recital regarding service\n\nIn a judgment, whether in default of appearance or defence or after hearing or trial or otherwise, the party entering the judgment is, if he so desires, entitled to have recited in the judgment a statement as to the manner and place in and at which the service of the writ of summons or other originating process by which the proceedings were commenced was effected.\n\n3 Date of judgment pronounced in Court\n\n(1) When a judgment is pronounced by the Court, the entry of the judgment shall, subject to the next succeeding subrule, be dated as of the day on which the judgment is pronounced, unless the Court otherwise orders, and the judgment shall take effect from that date.\n\n(2) By special leave of the Court, a judgment may be ante-dated or post-dated.\n\n4 Date of entry of other judgments\n\nIn any other case the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of the entry, and the judgment shall take effect from that date.\n\n5 Time to be stated for doing any act ordered to be done\n\nWhere a judgment or order made in a proceeding requires a person to do an act:\n\n(a) it shall state the time, or the time after service of the judgment or order, within which the act is to be done; and\n\n(b) there shall be endorsed upon the copy of the judgment or order served upon the person required to obey it a memorandum in the following words or to the following effect:\n\n“If you, the within-named A.B., neglect to obey this judgment (or order) by the time limited in it, you will be liable to process of execution for the purpose of compelling you to obey the judgment (or order).”.\n\n6 Judgment on production of affidavit or document\n\nWhen it is provided that a judgment may be entered upon the filing of an affidavit or production of a document, the officer shall examine the affidavit or document produced and, if it is regular and contains all that is by law required, he shall enter judgment accordingly.\n\n7 Judgment on production of order or certificate\n\nWhen it is provided that a judgment may be entered pursuant to an order or certificate, or to the return of a writ, the production of the order or certificate sealed with the seal of the Court, or of the return, is sufficient authority to the officer to enter judgment accordingly.\n\n8 Judgment on Registrar’s certificate\n\nWhen reference is made to a Registrar to ascertain the amount for which final judgment is to be entered, the Registrar’s certificate shall be filed in the Registry in which the proceeding is then pending before judgment is entered.\n\n9 Judgment by consent when party appears by a solicitor\n\nWhen a party sues or appears by a solicitor, a consent order for entering judgment against that party shall not be made unless the consent of the party is given by his solicitor or the agent of his solicitor.\n\n10 Consent of party in person\n\nWhen a plaintiff sues in person, or a defendant has not appeared or has appeared in person, a consent order for entering judgment against that plaintiff or defendant, as the case may be, shall not be made unless he attends before a Justice and gives his consent in person, or unless his written consent, if he is not a barrister or solicitor, is attested by a solicitor acting on his behalf.\n\n11 Entry of satisfaction\n\n(1) A memorandum of satisfaction of a judgment may be entered upon a consent to the entry being filed in the Registry in which the proceeding is then pending.\n\n(2) The consent to the entry shall be signed by the party entitled to the benefit of the judgment and attested and verified by the affidavit of the attesting witness.\n\n(3) lf the attesting witness is not a barrister or solicitor, the approval of a Justice shall be obtained, and that approval may be endorsed on the affidavit.\n\n  \n\nOrder 43A Interest on judgments\n\n1 Every judgment debt under a judgment of the High Court of Australia shall carry interest at the prescribed rate of interest applicable to judgments of the Supreme Court of the State or Territory in which judgment is entered, from the date of entry of judgment.\n\n2 Every award of costs under a judgment of the High Court of Australia shall carry interest at the prescribed rate of interest applicable to judgments of the Supreme Court of the State or Territory in which the proceeding is pending, from the date of the certificate of taxation quantifying same.\n\nOrder 44 Drawing up judgments and orders\n\n1 By whom judgments and orders to be drawn up\n\nA judgment or order, whether given or made in Court or in Chambers, or by default, shall be drawn up by a Registrar, or under his direction, unless otherwise directed by the Court or a Justice.\n\n2 Documents to be filed before judgment or order signed\n\nA judgment or order founded, in whole or in part, on a petition, affidavits, written admissions or other written documents, shall not be signed until the petition, admissions, affidavits or other written documents have been filed in the Registry in which the proceeding is pending.\n\n3 Documents to be left with Registrar on bespeaking judgment or order\n\nAt the time of bespeaking a judgment or order, the party bespeaking it shall leave with the Registrar his counsel’s brief, if any, and such other documents as are required by the Registrar for the purpose of enabling him to draw up the judgment or order.\n\n4 Registrar may require party to submit draft\n\n(1) The Registrar may require the party bespeaking a judgment or order to prepare a draft of it and leave the draft in the Registry for his use or assistance.\n\n(2) The Registrar may accept the draft so prepared and left as his own draft of the judgment or order, with such alterations, if any, as he thinks fit.\n\n5 Time for bespeaking judgment or order\n\nA judgment or order shall be bespoken, and the requisite documents mentioned in rule 3 of this Order shall be left with the Registrar, within seven days after the judgment or order is finally given or made by the Court or Justice.\n\n6 Where judgment or order not bespoken\n\nIf a judgment or order is not bespoken and the requisite documents are not left with the Registrar within the time prescribed by the last preceding rule, the Registrar may decline to draw up the judgment or order without the direction of the Court or a Justice.\n\n7 Appointment for settling judgment or order\n\nAt the time of delivering out the draft of a judgment or order which, in the opinion of the Registrar, ought to be settled in the presence of the parties, he shall deliver out to the party on whose application the draft has been prepared an appointment in writing of a time for settling it.\n\n8 Notice of appointment to be served on opposite party\n\n(1) A notice of the appointment shall be served on the opposite party three clear days at least before the time appointed for settling the draft.\n\n(2) The party serving the notice and the party served shall attend the appointment and shall produce to the Registrar counsel’s briefs, if any, and such other documents as are necessary to enable him to settle the draft.\n\n9 Service of notice of appointment\n\nService of the notice of appointment shall be effected by leaving it at the address for service of the party to be served or by transmitting it by post to the party at that address.\n\n10 Proof of service\n\nAt the time appointed for settling the draft, the Registrar shall satisfy himself, in such manner as he thinks fit, that service of the notice of appointment has been duly effected, and for that purpose he may require evidence on oath.\n\n11 Appointment for passing judgment or order\n\n(1) When the draft has been settled by the Registrar, he shall name a time in the presence of several parties, or else deliver out an appointment in writing of a time, for passing the judgment or order.\n\n(2) Where he delivers out an appointment in writing of a time, notice of the appointment shall be served by the party to whom the appointment is delivered on the opposite party, and the service shall be proved in the manner prescribed by the last two preceding rules of this Order with reference to an appointment to settle the draft of a judgment or order.\n\n12 Default in attending appointment with documents\n\n(1) If a party fails:\n\n(a) to attend the Registrar’s appointment for settling the draft of a judgment or order; or\n\n(b) fails to produce his counsel’s briefs and such other documents as the Registrar may require to enable him to settle the draft or to pass the judgment or order;\n\nthe Registrar may proceed to settle the draft, or to pass the judgment or order, in his absence.\n\n(2) Where the Registrar proceeds under the last preceding subrule, he may:\n\n(a) dispense with the production of counsel’s briefs or of the requisite documents or papers and act upon such evidence, as he thinks fit, of the appearance by counsel of the party failing to attend; or\n\n(b) require the matter to be mentioned to the Court or a Justice.\n\n13 Adjournment of appointments\n\nThe Registrar may adjourn an appointment for settling the draft of a judgment or order, or for passing a judgment or order, to such time as he thinks fit, and the parties who attended the appointment shall attend upon the adjournment without further notice.\n\n14 Settling and passing judgment or order without appointment\n\nNotwithstanding the preceding rules of this Order, the Registrar may, where he thinks it expedient so to do, settle and pass a judgment or order without making an appointment for either purpose and without notice to any party.\n\n15 Party to engross judgment or order\n\nA judgment or order when settled and passed shall be engrossed by the party having the carriage of the judgment or order.\n\n16 Judgments and orders to be filed; duplicates\n\n(1) Every judgment and order shall be kept in the Registry as a record.\n\n(2) A duplicate of a judgment or order shall, one clear day after it has been entered, or, in urgent cases, sooner if so directed by the Registrar, be signed and sealed by the Registrar, without fee, and delivered to the party having the carriage of the judgment or order.\n\n(3) When a rule or order or the practice of the Court requires the production of a judgment or order, it is sufficient to produce the duplicate.\n\n(4) A further duplicate may at any time, with the sanction of the Registrar and on payment of the prescribed fee, be issued on production of the duplicate first issued or on the Registrar being satisfied of the loss of that duplicate and that the person applying is properly entitled to it.\n\n(5) A judgment or order shall not be amended except on production of the duplicate or duplicates, or the duplicate last issued, as the case may be, which shall, after the original order has been amended and under the direction of the Registrar, be amended in accordance with the amendment of the original order.\n\n(6) The amendment in the duplicate shall be sealed under the direction of the Registrar.\n\n17 Certificates for special allowance\n\nIf the Registrar is requested to do so by a party at the time of an attendance before him for the purpose of settling the draft of a judgment or order or of passing a judgment or order, he shall certify, for the purposes of the taxation of costs, whether in his opinion a special allowance ought to be made on taxation of costs in respect of the attendance, or in respect of the preparation of the draft by a party whom he has requested to prepare it, on the ground that the judgment or order is of a special nature or of unusual length or difficulty.\n\n18 When orders need not be drawn up\n\n(1) When an order is made which does not embody any special terms or include any special directions, but only:\n\n(a) gives leave to an officer of the Court, other than a solicitor, to do some act;\n\n(b) enlarges the time for taking a proceeding or for doing an act;\n\n(c) gives leave:\n\n(i) to issue a writ or originating process, other than a writ of attachment;\n\n(ii) to amend a writ or originating process or pleadings;\n\n(iii) to enter a judgment or order nunc pro tunc; or\n\n(iv) to file a document or take a document off the file; or\n\n(d) directs a clerical mistake or an error appearing in a judgment or order to be corrected;\n\nit is not necessary to draw up the order unless the Court or Justice so directs.\n\n(2) When, under the last preceding subrule, it is not necessary to draw up an order, the production of a note or memorandum of the order, which may be made upon any document filed in the proceeding, signed or initialled by the Justice or Registrar is sufficient authority for the enlargement of time, issue, amendment, entry, filing or other act.\n\n(3) A direction that the costs of such an order shall be costs in a cause or matter shall be deemed a special direction within the meaning of this rule.\n\n(4) The person, or solicitor of the person, on whose application the order is made shall forthwith give notice in writing of the order to such person, if any, as would, if this rule had not been made, have been required to be served with the order.\n\n19 Date of order\n\nAn order which is drawn up shall be dated as of the day on which it was made, unless the Court or a Justice otherwise directs, and shall take effect accordingly.\n\n20 Authentication\n\n(1) A judgment or order shall be marked to show by whom it was made.\n\n(2) An order made in Chambers is sufficiently authenticated if signed by the Registrar and sealed in accordance with the provisions of Order 58 with the Office Seal.\n\n(3) A judgment or order, other than an order made in Chambers, shall be signed by the Registrar and sealed in accordance with the provisions of Order 58 with the Office Seal.\n\n21 Entry of judgments and orders etc\n\n(1) A judgment or order, when settled and passed, shall be filed by the party having the carriage thereof.\n\n(2) An entry of the filing shall be made in books to be kept for that purpose.\n\n(3) A judgment or order when filed shall be deemed to be duly entered, and the date of the filing shall be deemed the date of entry.\n\n(4) In the case of a procedure order drawn up in Chambers, entry of the order is not necessary before an attachment can be issued for disobedience of it.\n\n(5) An order which is not required to be formally drawn up before being acted upon need not be entered unless it becomes necessary to serve the order for any purpose.\n\n22 Application to add to or vary\n\nA party may, within seven days after a draft judgment or order has been settled by the Registrar, apply to the Court or Justice to add to or alter it for the purpose of making it correspond with the judgment or order of the Court as pronounced.\n\n23 Consent orders\n\n(1) A written consent of the parties to a proceeding, or their solicitors, to the making of an order in the proceeding may be filed in the Registry in which the proceeding is pending.\n\n(2) Notwithstanding anything contained in these rules, upon the written consent being so filed, the Registrar shall bring the matter before a Justice who, if he thinks fit, may, without any other application being made to him, direct the Registrar to draw up, sign and seal an order in accordance with the terms of the consent.\n\n(3) The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Justice.\n\n","sortOrder":56}],"analysis":{"kimi_summary":{"_metrics":{"model":"kimi-k2.5","source":"moonshot-realtime","completionTokens":2397},"content_quality":"ok","complexity_score":8,"scope_assessment":{"changed":false,"description":"The legislation remains focused on regulating the practice and procedure of the High Court of Australia as originally intended under the Judiciary Act 1903, covering civil proceedings, admiralty actions, and related matters without fundamental expansion beyond procedural governance."},"complexity_factors":["44 distinct Orders with nested rules and sub-rules covering discrete procedural stages","Extensive internal cross-referencing between Orders (e.g., Order 13 references Order 2, rule 1)","Parallel procedural tracks for general civil litigation, Admiralty jurisdiction, and 'poor persons' cases","Over 40 defined terms in the interpretation section requiring specific legal meanings","Complex party management rules including joinder, third party procedures, next friends for infants, and guardians for persons of unsound mind","Detailed timing and form requirements (e.g., specific days for service, renewal of writs, prescribed forms in the First Schedule)","Multi-layered default mechanisms for defendants who fail to appear or plead"],"plain_english_summary":"**The High Court Rules 1952 are the procedural 'rulebook' for Australia's highest court.** They set out the step-by-step process for how civil cases (and some criminal matters) are conducted in the High Court of Australia, made under the *Judiciary Act 1903*.\n\n**What the rules cover:**\n\n*   **Starting a case:** How to issue writs of summons (court documents that begin a case) and serve them on defendants, including special rules for suing people outside Australia and maritime \"Admiralty\" cases involving ships.\n*   **Parties:** Who can sue or be sued, including rules for children (\"infants\"), people with mental incapacity, corporations, and \"poor persons\" (those who cannot afford court fees and receive legal assistance).\n*   **Responding to claims:** How defendants enter an \"appearance\" (formally acknowledge the case) and file defences or counterclaims.\n*   **Pre-trial procedure:** Rules for \"discovery\" (sharing relevant documents), interrogatories (written questions answered on oath), and preparing cases for trial.\n*   **Trials and judgment:** How trials are conducted (by a judge alone or with a jury), how evidence is presented, and how judgments are entered and enforced.\n*   **Special processes:** Procedures for adding third parties (bringing someone else into an existing case), changing parties if someone dies during proceedings, and seeking \"summary judgment\" (a quick decision without a full trial where there is clearly no real defence).\n\nThe rules are organized into 44 numbered \"Orders,\" each covering a different stage of litigation, from the first document filed to the final judgment and costs."}},"importantCases":[],"_links":{"self":"/api/acts/high-court-rules-1952","history":"/api/acts/high-court-rules-1952/history","analysis":"/api/acts/high-court-rules-1952/analysis","conflicts":"/api/acts/high-court-rules-1952/conflicts","importantCases":"/api/acts/high-court-rules-1952/important-cases","documents":"/api/acts/high-court-rules-1952/documents"}}