(1) Where a party is in default in filing and serving any pleading as required by this Order, any other party may move the Court on notice:
(a) if the party in default is an applicant — for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant in the proceeding;
(c) for an order that pleadings be filed and served within the time limited in the order.
(2) The Court may make an order of the kind mentioned in subrule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just.
Order 12 Particulars
1 General
(1) A party pleading shall state in the pleading or in a document filed and served with it the necessary particulars of any claim, defence or other matter pleaded by the party.
(2) Rules 2 to 4 do not affect the generality of subrule (1).
2 Fraud etc
A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies.
3 Conditions of mind
(1) A party pleading any condition of mind shall give particulars of the facts on which the party relies.
(2) In subrule (1) condition of mind includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge.
4 Damages
(1) A party who claims damages which include moneys which the party has paid or is liable to pay must give particulars of those moneys.
(2) A party who claims exemplary damages must give particulars of the facts and matters relied upon to establish that claim.
5 Order for particulars
(1) The Court may order a party to file and serve on any other party:
(a) particulars of any claim, defence or other matter stated in a pleading, or in any affidavit ordered to stand as a pleading;
(b) a statement of the nature of the case on which the party relies; or
(c) particulars relating to general or other damages claimed by the party.
(2) Without limiting the generality of subrule (1), where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, the Court may order that party to file and serve on any other party:
(a) where the party alleges knowledge, particulars of the facts relied upon; and
(b) where the party alleges notice, particulars of the notice.
(3) The Court shall not make an order under this rule before the filing of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the respondent to plead or for some other special reason.
This Order does not apply to the amendment of a judgment or order or draft thereof.
2 General
(1) The Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.
(3) Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if he or she were a party.
3 Amendment of pleading without leave
(1) A party may, without leave, amend any pleading once at any time before the pleadings are closed.
(2) A party may further amend any pleading before the pleadings are closed and without the leave of the Court if the party obtains the consent of all other parties.
4 Consequential amendment of defence or reply
(1) Where an applicant amends a statement of claim:
(a) if the respondent has filed a defence, the respondent may amend the defence; and
(b) the time for filing the defence or amended defence, as the case may be, is either the time fixed by these Rules for filing a defence or 14 days after service on the respondent under rule 10, whichever expires later.
(2) Where a respondent amends a defence:
(a) if the applicant has filed a reply, the applicant may amend the reply; and
(b) the time for filing the reply or amended reply, as the case may be, is either the time fixed by these Rules for filing the reply or 14 days after service on the applicant under rule 10, whichever expires later.
(3) The rights to amend under paragraph (1) (a) and paragraph (2) (a) are in addition to the right to amend under rule 3.
(4) Where the following is the order of events:
(a) a party (in this rule called the first party) files a pleading (in this rule called the first pleading);
(b) an opposite party files a pleading (in this rule called the second pleading) in answer (whether by way of defence, reply or otherwise) to the first pleading;
(c) the first party amends the first pleading;
(d) the opposite party does not amend the second pleading within the time allowed by this rule;
then:
(e) the second pleading shall have effect as a pleading in answer to the amended first pleading; and
(f) Order 11, subrule 14 (1) does not apply but, if no further pleading between those parties is filed, there shall be, at the close of pleadings, an implied joinder of issue on the second pleading.
5 Disallowance of amendment
(1) Where a party amends a pleading under subrule 3 (1), the Court, on application by an opposite party, may, subject to subrule (3), by order disallow the amendment.
(2) Where a party amends a pleading under subrule 3 (2) but without obtaining the consent of a party, the Court, on application by that party, may, subject to subrule (3), by order disallow the amendment.
(3) Notice of a motion under subrule (1) or (2) shall be filed and served within 14 days after the date of service on the applicant under rule 10 of this Order.
(4) Where, on the hearing of an application under subrule (1), the Court is satisfied that, if an application for leave to make the amendment had been made under subrule 2 (1) on the date on which the amendment was made under subrule 3 (1) or (2), the Court would not have given leave to make the whole or some part of the amendment, the Court shall disallow the amendment or that part, as the case may be.
6 Duration of leave
Subject to Order 3, rule 3 (which relates to the extension and abridgment of time), where the Court makes an order under this Order giving a party leave to amend a document, then, if the party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the order or, if no period is so specified, before the expiration of 14 days after the date on which the order is made, the order shall cease to have effect.
7 Mode of amendment — directions
(1) Where the Court orders, or gives leave for, the making of an amendment, the Court may give such directions as it thinks fit concerning the mode of amendment and consequential service of the amended document or of notice of the amendment.
(2) Rules 8, 9 and 10 have effect subject to subrule (1).
8 Mode of amendment — simple amendment — Form 19
(1) Where the amendments authorised under this Order to be made to a document are not so numerous or lengthy or otherwise of such nature as to render the document difficult or inconvenient to read, the amendments may be made by:
(a) filing a notice, in accordance with Form 19, specifying the amendments and the matters mentioned in subrule (2); and
(b) where the document to be amended has been filed, writing the alterations in the document.
(2) A filed document amended under this rule must be marked with a statement specifying the date of the amendment and also, if made under an order, the date of the order or, if not made under an order, a reference to the rule authorising the amendment.
9 Mode of amendment — fresh document
Subject to subrule 8 (1), amendments authorised under this Order to a filed document must be made by filing a fresh document, amended as so authorised, and bearing a statement specifying the matters mentioned in subrule 8 (2).
10 Service after amendment
Where a document has been served and is afterwards amended, the party making the amendment must, on the day on which the amendment is made, serve on the parties on whom the document was served:
(a) if the amendment is made under rule 8 — the notice mentioned in subrule 8 (1); or
(b) if the amendment is made under rule 9 — the fresh document.
Order 14 Affidavits
1 Time for swearing
An affidavit for use in any proceeding may be sworn before or after the commencement of the proceeding.
2 Form of affidavit — Form 20
(1) An affidavit must be made in the first person.
(2) The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.
(3) Where it appears to the person before whom an affidavit is sworn that the deponent is illiterate or blind, he or she must certify in or below the jurat that:
(a) the affidavit was read in his or her presence to the deponent; and
(b) the deponent seemed to understand the affidavit.
(4) Where it appears to the person before whom an affidavit is sworn that the deponent is by reason of physical incapacity incapable of signing the same he or she must certify in or below the jurat that:
(a) the affidavit was read in his or her presence to the deponent;
(b) the deponent seemed to understand the affidavit; and
(c) the deponent signified he or she swore the affidavit.
(5) Where an affidavit is made by an illiterate or blind deponent and a certificate in accordance with subrule (3) or subrule (4) does not appear on the affidavit, the affidavit may not be used unless the Court is satisfied that the affidavit was read to the deponent and that the deponent seemed to understand it.
(6) Each page of an affidavit must be signed by the deponent and by the person before whom it is sworn, except that it is not necessary for a deponent who is physically incapable of signing the affidavit to do so.
3 Alteration
Where there is any interlineation, erasure or other alteration in the jurat or body of an affidavit:
(a) the affidavit may nevertheless be filed, unless the Court otherwise orders; but
(b) the affidavit may not be used without the leave of the Court unless the person before whom the affidavit is sworn initials the alteration and, in the case of an erasure, re-writes in the margin of the affidavit any words or figures written on the erasure and signs or initials them.
4 Exhibits and annexures
(1) Any original document to be used in conjunction with an affidavit must be exhibited and not annexed to the affidavit.
(2) Any exhibit to an affidavit must be identified by a certificate entitled in the same manner as the affidavit and made by the person before whom the affidavit is sworn.
(3) Copies of all documents exhibited or annexed to an affidavit must be served with the affidavit.
5 Irregularity
(1) An affidavit may be filed, unless the Court otherwise orders, notwithstanding any irregularity in form.
(2) An affidavit may be used, with the leave of the Court, notwithstanding any irregularity in form.
6 Filing
An affidavit may not be used without leave of the Court unless it has been filed.
7 Service
(1) A party intending to use an affidavit must serve it on each other interested party not later than a reasonable time before the occasion for using it arises.
(2) The Court may give directions concerning the service of affidavits.
8 Scandal etc
Where there is scandalous or oppressive matter in an affidavit, the Court may order that the affidavit be taken off the file.
9 Cross-examination
(1) A party may require the attendance for cross-examination of a person making an affidavit.
(2) A requirement under subrule (1) must be made to the party filing or proposing to use the affidavit.
(3) Where the attendance of a person is required under subrule (1) and the person does not attend, that person’s affidavit must not be used without the leave of the Court.
(4) Where a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.