26Recovery of land, limiting defence

26 Recovery of land, limiting defence (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. (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: (a) entitled in the action; (b) in the form numbered 17 in the First Schedule, with such variations as the circumstances require; (c) signed by him or his solicitor; and (d) served on the plaintiff within three days after appearance. (3) An appearance, where the defence is not limited in accordance with this rule, shall be deemed an appearance to defend for the whole. Order 12 Default of appearance 1 Default of appearance by infant or person of unsound mind; notice of application (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. (2) The order shall not be made unless it appears on the hearing of the application: (a) that the writ of summons or other originating process was duly served; and (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: (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 (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. (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. 2 Default of appearance generally Where 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. 3 Liquidated demand endorsed Where 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. 4 Liquidated demand; several defendants Where 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. 5 Detention of goods (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. (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. (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. 6 Detention of goods; several defendants (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. (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. (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. 7 Detention of goods, damages and liquidated demand; final and interlocutory judgment Where 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: (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 (b) interlocutory judgment for the value of the goods and the damages, or either of them, as the case may be; and proceed according to such of the preceding rules of this Order as are applicable. 8 Recovery of land Where, in an action for the recovery of land: (a) an appearance is not entered within the time limited by the writ for appearance; or (b) an appearance is entered but the defence is limited to part only of the property; the plaintiff may enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part to which the defence does not apply, as the case may be. 9 Other claims Where 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. 10 Plaintiff not proceeding — judgment for costs (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. (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. 11 Setting aside judgment Where 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. 12 Action in District Registry; time for entering judgment Where 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. 13 Default of appearance in cases not otherwise specially provided for Where, 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: (a) a proper affidavit of service; and (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; the proceeding may continue as if that party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 15. 14 Default in Admiralty action Where, in an Admiralty action in rem, the defendant does not appear within the time limited for appearance, upon the filing by the plaintiff of: (a) a proper affidavit of service; (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 (c) a certificate of non-appearance; the action may, on the expiration of twenty-one days from the service of the writ, be set down for judgment by default. 15 Default in Admiralty action Where 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: (a) pronounce for the claim with or without a reference to a Registrar, or to a Registrar assisted by merchants; (b) order the property to be appraised and sold, with or without previous notice, and the proceeds to be paid into court; or (c) make such order as he thinks just. 16 Default of appearance to originating summons (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. (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. 17 Judgment against one not to prejudice right against other defendant Where 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. Order 13 Summary relief 1 Special endorsement (1) This Order applies to actions: (a) in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising: (i) upon a contract, express or implied (as, for instance, on a bill of exchange, promissory note or cheque, or other simple contract debt); (ii) on a bond or contract under seal for payment of a liquidated amount of money; (iii) 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; (iv) on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand; or (v) on a trust; (b) 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; (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; (d) in which the plaintiff claims possession of property forming a security for the payment of money; and (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. (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. 2 Judgment on writ specially endorsed under O. III r. 4 (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. (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. (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. (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. (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. 3 Application by summons (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. (2) Copies of the affidavits and exhibits to be used upon the hearing of the summons shall be served with the summons. 4 Defendant may show cause (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. (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. 5 Examination of witnesses The 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. 6 Judgment for part of claim (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. (2) The defendant may defend as to the residue of the plaintiff’s claim. 7 Where one defendant has good defence, but other not Where 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. Leave 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. 9 Summary disposal Upon the hearing of the application, with the consent of all parties, the Justice may dispose of the whole action in a summary manner. 10 Assessment of damages (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. (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. 11 Directions as to trial (1) Where leave, whether conditional or unconditional, is given to defend, the Justice may: (a) give such directions as to the further conduct of the action as might be given on a summons for directions under Order 31; (b) direct that the affidavit filed by the defendant under this Order shall serve in lieu of defence; (c) order the action to be set down for trial forthwith; and (d) define the issues that are to be tried. (2) Where the plaintiff has obtained leave to enter final judgment subject to a suspension of execution pending the trial of a counterclaim, this rule applies to the counterclaim as if it were an action. 12 Relief from forfeiture A 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. 13 Fresh application Where 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. Order 14 Summary judgment for specific performance 1 Judgment on writ for specific performance (1) Where the defendant has appeared to a writ of summons endorsed with a claim for specific performance of a contract in writing for 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. (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. 2 Application by summons (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. (2) Copies of the affidavits and exhibits to be used upon the hearing of the summons shall be served with the summons. 3 Defendant may show cause The defendant may shew cause against the application by affidavit. 4 Examination of witnesses The 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. 5 Leave to defend Leave 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. 6 Directions as to trial Where leave, whether conditional or unconditional, is given to defend, the Justice may: (a) give directions limiting the time within which pleadings are to be delivered and as to any interlocutory matter; and (b) order the action to be set down for trial forthwith or at such date as he thinks proper. 7 Summary disposal Upon the hearing of the application, with the consent of all parties, the Justice may dispose of the whole action in a summary manner. Order 15 Application for an account 1 Order for account (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 (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; an order for the proper accounts, with all necessary inquiries and directions, shall forthwith be made. 2 Application, how made (1) An application for an order under the last preceding rule may be made at any time after the time for appearance has expired. (2) Where the defendant has failed to appear, the application may be made ex parte. (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. 3 Judgment without pleadings (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. (2) The Court shall thereupon proceed to hear and determine the action and give such judgment as is just. 4 Evidence Unless 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. 5 Action may be directed to proceed in usual course On 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. Order 16 Parties I Generally 1 Persons claiming jointly, severally or in the alternative may be plaintiffs (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 (b) if those persons brought separate proceedings a common question of law or fact would arise; those persons may be joined in one proceeding as plaintiffs. (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. (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. 2 No other proceeding to be brought for same claim Another 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. 3 Proceeding in name of wrong plaintiff Where 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: (a) it has been so commenced through a bona fide mistake; and (b) it is necessary for the determination of the real matter in dispute so to do; may order another person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as are just. 4 Misjoinder and non-joinder (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. (2) The Court or a Justice may: (a) at any stage of the proceedings; (b) either upon or without the application of a party; and (c) on such terms as appear to the Court or a Justice to be just; order 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. (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. 5 Consent of plaintiff or next friend A 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. 6 Counterclaim — misjoinder Where 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. 7 All persons may be joined as defendants Where 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. 8 Defendant need not be interested in all the relief (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. (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. 9 Joinder of persons severally, or jointly and severally liable The 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. 10 Plaintiff in doubt as to person from whom redress is to be sought Where 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. 11 Trustees, executors etc may sue and be sued in respect of estate (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. (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. (3) This rule extends and applies to trustees, executors, and administrators suing or sued in proceedings to enforce a security by foreclosure or otherwise. 12 Numerous persons Where 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. 13 Power to approve compromise (a) a compromise is proposed in proceedings concerning: (i) the estate of a deceased person; (ii) property subject to a trust; or (iii) the construction of a written instrument; (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 (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; the 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. (2) The absent persons shall be bound by the order unless it has been obtained by fraud or non-disclosure of material facts. 14 Application to add or strike out An 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. 15 Where defendant added (1) Where a defendant is added or substituted, the writ of summons or other originating process shall be amended accordingly. (2) The plaintiff shall, unless otherwise ordered by the Court or a Justice: (a) file a copy of the writ or other originating process as amended; and (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. (3) The proceedings shall be continued as if the new defendant had originally been made a defendant. 16 Actions under Act and Convention In 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. 17 Initial letters may be used (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. (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. II Persons under disability 18 Proceedings by infants (1) An infant may sue as plaintiff by his next friend. (2) An infant may defend in a proceeding by his guardian appointed for that purpose. 19 Persons of unsound mind (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. (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. 20 Appearance by infant (1) An infant shall not enter an appearance except by his guardian ad litem. (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. 21 Guardian ad litem (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. (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. 22 Other cases Where 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. 23 Next friend or relator Before 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. 24 Consent of persons under disability to procedure In 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. 25 Removal and appointment of next friend or guardian ad litem (1) The Court or a Justice may, for sufficient cause shewn, remove a next friend or guardian ad litem. (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. III Proceedings by and against poor persons 26 Suing or defending as poor person The 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: (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; (b) that his usual income from all sources does not exceed Eighteen dollars a week; and (c) that he has reasonable grounds for suing, defending or becoming a party.