57Administration — appearance at chambers in respect of creditor’s claims

57 Administration — appearance at chambers in respect of creditor’s claims (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. (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. Order 17 Third party procedure 1 Third party procedure (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): (a) that he is entitled to contribution or indemnity; (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 (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; the Court or a Justice may give leave to the defendant to issue and serve a third party notice. (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. 2 Form and issue of notice (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. (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. (3) A copy of the notice shall be filed in the Registry in which the action is then pending. (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. 3 Effect of notice The third party shall, as from the time of the service upon him of the notice, be a party to the action with the same rights in respect of his defence against a claim made against him, and otherwise, as if he had been duly sued in the ordinary way by the defendant. 4 Appearance (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. (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. (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. 5 Default by third party If 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: (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 (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. 6 Where judgment by default against defendant (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: (a) enter judgment against the third party to the extent of any contribution or indemnity claimed in the third party notice; and (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. (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. 7 Third party directions (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. (2) The Court or Justice may: (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; (b) if satisfied: (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 (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; order that question or issue to be tried in such manner as the Court or Justice directs; or (c) dismiss the application. (3) Directions given pursuant to this rule may: (a) be given either before or after any judgment has been signed by the plaintiff against the defendant in the action; (b) be varied from time to time; and (c) be rescinded. (4) The third party proceedings may at any time be set aside by the Court or a Justice. The Court or a Justice, upon the hearing of the application for directions, may, if it appears desirable to do so: (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 (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. 9 At trial (1) Where the action is tried, the Justice who tries the action may, at or after the trial: (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 (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. (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. (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. 10 Costs The 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. 11 Fourth and subsequent parties (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. (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. 12 Co-defendants (1) Where a defendant claims against another defendant: (a) that he is entitled to contribution or indemnity; (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 (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; the 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. (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. (3) This rule does not prejudice the rights of the plaintiff against any defendant to the action. 13 Counterclaim Where 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. Order 18 Change of parties by death etc 1 Proceeding not abated where cause of action continued (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. (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. 2 Order to carry on proceeding (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 (b) by reason of a person interested coming into existence after the commencement of the proceeding; it 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: (c) the change or transmission of interest or liability; or (d) the person interested having come into existence. (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. 3 Service of order to continue proceeding (1) An order obtained under the last preceding rule shall, unless the Court or a Justice otherwise directs, be served upon: (a) the continuing party or parties or his or their solicitor or solicitors; and (b) unless the person making the application be himself the only new party — upon each new party. (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. (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. 4 Application to discharge order by person under no disability or having a guardian Where a person who: (a) is not under a disability; (b) is not under a disability, other than coverture; or (c) is under a disability, other than coverture, but has a guardian ad litem in the proceeding; is 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. 5 By person under disability having no guardian (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. (2) Until the period of fourteen days has expired, the order shall have no force or effect as against that person. 6 Death of sole plaintiff or defendant (a) the plaintiff or defendant in a proceeding dies and the cause of action survives; and (b) the person entitled to proceed fails to proceed; the 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. (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. (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. 7 Solicitor of plaintiff to give notice of abatement (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. (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. 8 Abated proceeding to be struck out Where 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. Order 19 Joinder of causes of action 1 All causes of action may be joined (1) Subject to this rule and the succeeding rules of this Order, the plaintiff may join in the same action several causes of action. (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: (a) order separate trials of any of those causes of action to be had; or (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. 2 Claims of trustees in bankruptcy etc A 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. 3 Husband and wife Subject 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. 4 Executor and administrator Subject 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. 5 Claims by joint plaintiffs Subject 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. 6 Remedy for misjoinder Where 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. 7 Order for exclusion Where, 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: (a) order any of those causes of action to be excluded and consequential amendments to be made; and (b) make such order as to costs as is just. Order 20 Pleading generally 1 Pleadings in High Court The rules of pleading set out in this Order shall be used in the Court. 2 Delivery of pleadings — costs of prolix pleadings (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. (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. (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. (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. 3 Set-off and counterclaim (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. (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. (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. 4 Pleading to state material facts and not evidence (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. (2) The pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each paragraph containing as nearly as may be a separate allegation. (3) Dates, sums and numbers shall be expressed in figures and not in words. (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. 5 Particulars to be given where necessary (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. (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. (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. 6 Further and better statement or particulars A 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. 7 Letter for particulars (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. (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. (3) Costs shall not be allowed on taxation of an application for particulars which is prolix, unreasonable or unnecessary. 8 Particulars before defence Particulars 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. 9 Order for particulars when a stay (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. (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. 10 Printing etc of pleadings A pleading shall be printed, typewritten or written. 11 Delivery of pleadings (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. (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. 12 Marking pleadings (1) Every pleading shall be delivered between parties, and: (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 (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. (2) At the beginning of a statement of claim, there shall be a memorandum of the date of the issue of the writ. 13 “Not guilty by statute” abolished The defence of “Not guilty by statute” shall not be used. 14 Specific denial Where an allegation of fact in a pleading: (a) is not denied specifically or by necessary implication; or (b) is not stated to be not admitted; in the pleading of the opposite party, it shall be taken to be admitted, except as against an infant or a person of unsound mind. 15 Condition precedent (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. (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. 16 What must be specially pleaded The defendant or plaintiff, as the case may be, shall raise by his pleading: (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 (b) such grounds of defence or reply, as the case may be, as, if not raised, would: (i) be likely to take the opposite party by surprise; or (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. 17 Departure A 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. 18 Denial to be specific It 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. 19 Joinder of issue (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. (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. 20 Evasive denial (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. (2) Where an allegation is made with divers circumstances, it is not sufficient to deny it along with those circumstances. 21 Denial of contract Where 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: (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 (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. 22 Effect of documents to be stated Where 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. 23 Malice, knowledge, condition of mind etc (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. (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. 24 Rolled-up plea Where in an action for libel or slander the defendant alleges that: (a) in so far as the words complained of consist of statements of fact, they are true in substance and in fact; and (b) in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest; or 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. 25 Notice Where 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. 26 Implied contract or relation (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. (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. 27 Presumptions of law Neither 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. 28 Actions for trespass In 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. 29 Striking out pleadings The Court or a Justice may, at any stage of the proceedings: (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 (b) if the Court or Justice thinks fit, order the costs of the application to be paid as between solicitor and client. 30 Preliminary Act (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. (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. (3) The Preliminary Act shall contain a statement as to: (a) the names of the vessels which came into collision and the names of their masters; (b) the time of the collision; (c) the place of the collision; (d) the direction and force of the wind; (e) the state of the weather; (f) the state and force of the tide; (g) the course and speed of the vessel when the other was first seen; (h) the lights (if any) carried by her; (i) the distance and bearing of the other vessel when first seen; (k) the lights (if any) of the other vessel which were first seen; (l) whether any lights of the other vessel other than those first seen, came into view before the collision; (m) what measures were taken, and when, to avoid the collision; (n) the parts of each vessel which first came into contact; (o) what sound signals (if any) were given, and when; and (p) what sound signals (if any) were heard from the other vessel, and when. (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. (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. Order 21 Statement of claim 1 Statement of claim (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: (a) with the writ of summons or notice in lieu of writ of summons; or (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. (2) A statement of claim delivered under paragraph (a) of the last preceding subrule may be endorsed upon the writ. (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. 2 Allegation of jurisdiction A 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. 3 Claim beyond endorsement Where 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. 4 Relief to be specifically stated (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. (2) This rule applies to a counterclaim made, or relief claimed, by the defendant in his defence. 5 Relief founded on separate grounds (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. (2) This rule applies where the defendant relies upon several distinct grounds of defence, set-off or counterclaim founded upon separate and distinct facts. 6 Stated or settled account (1) Where the cause of action is a stated or settled account, it shall be alleged with particulars. (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. Order 22 Defence and counterclaim 1 Mere denial insufficient In an action for a debt or liquidated demand in money comprised in Order 13, rule 1, a mere denial of the debt is inadmissible. 2 Defences to actions on bills etc In 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. 3 Defences to actions under Order 13, r. 1 (1) (a) and (b) In 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. 4 Pleading to damage A denial or defence is not necessary as to damages claimed or their amount, but they are in issue in all cases unless expressly admitted. 5 Persons in representative capacity Where a party wishes to deny: (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 (b) the alleged constitution of a partnership firm; he shall deny that right or constitution specifically. 6 Time for delivery of defence Where a defendant has entered an appearance, he shall deliver his defence: (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 (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. 7 Where leave to defend given under Order 13 or 14 Where 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. 8 Proper admissions not made Where 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. 9 Allowable counterclaim A 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. 10 Title on counterclaim Where a defendant sets up a counterclaim which raises questions between himself and the plaintiff with any other persons, he shall: (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 (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. 11 Counterclaim against person not party (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. (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. 12 Appearance by added parties Where 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. 13 Reply to counterclaim A 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. 14 Exclusion of counterclaim Where 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. 15 Discontinuance Where the defendant sets up a counterclaim and the action of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with. 16 Judgment for balance Where 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. 17 Plea in abatement A plea or defence shall not be pleaded in abatement. 18 Plea of possession (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: (a) he is in possession by virtue of a lease or tenancy granted by the plaintiff or his predecessor in title; (b) his defence depends upon an equitable estate or right; or (c) he claims relief upon some equitable ground against a right or title asserted by the plaintiff. (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. Order 23 Payment into and out of court and tender 1 Payment into Court (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. (2) Where a defence sets up tender before action, the sum of money alleged to have been tendered shall be brought into Court. (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. (4) The notice shall be in the form numbered 27 in the First Schedule and shall state whether liability is admitted or denied. (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. 2 Plaintiff may take out money (1) Where money is paid into Court under the last preceding rule, the plaintiff may: (a) within seven days of the receipt of the notice of payment into Court; or (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; accept 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. (2) Payment shall be made to the plaintiff or, on his written authority, to his solicitor, and thereupon proceedings in the action or in respect of the specified cause or causes of action, as the case may be, shall be stayed. (3) Where the plaintiff: (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 (b) gives notice that he abandons the other cause or causes of action; he 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. (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. (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. 3 Money remaining in Court Where 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. 4 Several defendants (1) Money may be paid into Court under rule 1 of this Order by one or more of several defendants sued jointly or in the alternative upon notice to the other defendant or defendants. (2) If the plaintiff elects within seven days after receipt of notice of payment into Court to accept the sum or sums paid into Court, he shall give notice in the form numbered 28 in the First Schedule to each defendant. (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. 5 Counterclaim A 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. 6 Non-disclosure of payment into Court (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: (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 (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. (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. 7 Payment into Court under certificate Money shall not be paid into Court under the certificate of a Registrar unless that payment is expressly authorized in the certificate. 8 Money paid into Court under order (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. (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): (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 (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. (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. 9 Notice of payment in Where 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. 10 Duty The 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. 11 Money recovered by or paid into account for infant or person of unsound mind (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. (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. (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: (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 (b) to be otherwise dealt with. (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. (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: (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; (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 (c) that the dividends be accumulated in the like securities for the benefit of the infant during minority. (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. (7) This rule also applies: (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 (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. (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. (9) This rule does not prejudice the lien of a solicitor for costs. (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. (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. Order 24 Reply 1 Time for reply A plaintiff shall deliver his reply: (a) within fourteen days from the delivery of the defence or the last of the defences; or (b) within such other time as is fixed by consent in writing or by the Court or a Justice. 2 Reply to counterclaim Where a counterclaim is pleaded, a reply to the counterclaim is subject to the rules applicable to defences. 3 Subsequent pleadings — time for pleading after reply A 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. 4 New assignment A 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. Order 25 Matters arising pending the action 1 New grounds of defence arising (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. (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. 2 Further defence or reply (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. (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. 3 Confession of defence (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: (a) may deliver a confession of that defence; and (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. (2) A confession of defence may be in the form numbered 29 in the First Schedule with such variations as the circumstances require. (3) This rule applies, mutatis mutandis, to a reply to a counterclaim. Order 26 Demurrer and objections to pleadings 1 Demurrer A party may demur: (a) to a pleading of the opposite party; (b) to a part of a pleading which sets up a distinct cause of action; (c) to a distinct and severable claim for damages; (d) to a claim for damages exceeding an amount named by the demurring party; or (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; on 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. 2 Demurrer to state whether the whole or part — frivolous demurrer may be set aside with costs (1) A demurrer shall state: (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 (b) some ground in law for the demurrer. (2) The party demurring shall not on the argument of the demurrer be limited to the ground so stated. (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. 3 Delivery A party demurring to the pleading of another party shall deliver his demurrer to that other party: (a) within the time within which the demurring party is required to answer that pleading; or (b) within such time as is fixed by consent in writing or by the Court or a Justice. 4 Demurrer and pleading in one document Where 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. 5 Leave to plead and demur together not necessary (1) A party may plead and demur to the same matter without leave. (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. 6 Demurrer to claim founded on document (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. (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. 7 Demurrer not entered for argument to be held sufficient (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. (2) If: (a) the demurrer is not set down and notice given within fourteen days after delivery; and (b) the party whose pleading or claim is demurred to does not within that time amend; the 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. 8 Form of setting down for argument A demurrer shall be set down by filing in the Registry in which the action is then pending: (a) a memorandum requiring the demurrer to be set down either before a Full Court or a single Justice; and (b) a copy of the pleadings so far as they relate to the matters of law raised by the demurrer. 9 When demurrer required to be heard before Full Court (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. (2) The demurrer shall thereupon be deemed to have been set down to be heard before a Full Court. (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. (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. 10 Copy pleadings for Justices After 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. 11 Amendment pending demurrer While 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. 12 Costs Where 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. 13 Effect of decision on demurrer going to whole action Subject 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. 14 Where demurrer allowed to part of a pleading, that part is to be deemed to be struck out Where 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. 15 Demurrer overruled with leave to plead Where 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. 16 Points of law may be raised by pleadings A 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: (a) be disposed of by the Justice who tries the action; or (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. 17 Dismissal of action Where, 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. 18 Striking out pleading where no reasonable cause of action disclosed (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. (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. 19 Declaratory judgment A 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. Order 27 Discontinuance 1 Discontinuance by a party (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. (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. (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. 2 Withdrawal by consent An 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. 3 Entering judgment on discontinuance A party may enter judgment: (a) for the costs of the action or proceeding if it is wholly discontinued against him; or (b) for the costs occasioned by the matter withdrawn if the action or proceeding is not wholly discontinued; if the said costs are not paid within seven days after taxation. Order 28 Default in pleading 1 Default of plaintiff in delivering statement of claim (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. (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. 2 Claim for debt or liquidated demand (a) the plaintiff’s claim is for a debt or liquidated demand only; and (b) the defendant is bound to deliver a defence and he does not, within the time allowed for that purpose, deliver a defence; the 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. (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. 3 Several defendants, default of one Where, 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. 4 Damages — detention of goods (a) the plaintiff’s claim is for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages; and (b) the defendant, or all the defendants, if more than one, 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 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. (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. 5 Default of one or more defendants (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. (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. 6 Debt or damages and detention of goods or damages (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 (b) a defendant makes default as mentioned in subrule (1) of rule 2 of this Order; the plaintiff may, subject to subrule (2) of that rule: (c) enter final judgment against that defendant for the debt or liquidated demand; and (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. 7 Recovery of land Where, 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. 8 Claims joined with claim for recovery of land Where 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: (a) enter judgment against that defendant with respect to the land as provided in the last preceding rule; and (b) proceed with respect to the other claim as provided in this Order with respect to such a claim. 9 Where a defence is delivered to part of claim only (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; (b) the defendant delivers a defence in answer to part only of the plaintiff’s alleged cause of action; and (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; the plaintiff may, by leave of the Court or a Justice, enter judgment, final or interlocutory, as the case may be, for the part unanswered. (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. 10 Admiralty actions in rem (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. (2) Order 12, rule 15, applies to an action set down under this rule. 11 Defendant in default Where, 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. 12 One of several defendants default Where, 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: (a) set down the action at once on motion for judgment against the defendant so making default; or (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. 13 Close of pleadings on default (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. (2) This rule does not apply to a reply to a counterclaim. (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. 14 Default of third party (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. (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. 15 Setting aside judgment by default A 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. 16 Effect of judgment by default Where 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. 17 Counterclaims This 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. Order 29 Amendment 1 Amendment of endorsement (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. (2) All such amendments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties. 2 When plaintiff may amend without leave The plaintiff may, without leave, amend his statement of claim, whether endorsed on the writ or not: (a) once at any time before the expiration of the time limited for reply and before replying; or (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. 3 By defendant A defendant may, without leave, amend his defence or counterclaim once at any time before the expiration of fourteen days from delivery of the reply. 4 Disallowance of amendment, application for, within 14 days (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. (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. 5 Pleading to amendment (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. (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. 6 Other cases In 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. 7 Failure to amend under order If a party who has obtained an order for leave to amend does not amend accordingly: (a) within the time limited for that purpose by the order; or (b) if no time is so limited, then within fourteen days from the date of the order; the 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. 8 How amendments made (1) An amendment in a document may be made: (a) by a written alteration in the document and copies of the document which have been filed, served or delivered; or (b) by an addition on paper to be interleaved with the document and copies. (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. (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. (4) An amendment shall be made in red ink or otherwise in such manner as to distinguish the amendment from the original matter. 9 Date of order and date of amendment to be marked When 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: “Amended the day of pursuant to order of dated the day of .”. 10 Delivery of amended document When 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. 11 Clerical mistakes and accidental omissions A 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. 12 General power to amend The 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. 13 Costs The 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. Order 30 Caveats and releases in admiralty actions 1 Caveat against warrant to arrest Where 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. 2 Caveat Warrant Book (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: (a) to enter an appearance in any action that may be commenced against the property; and (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. (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. 3 Search for caveat before issue of arrest warrant in District Registry When 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. 4 Writ to be served on party entering caveat Where 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. 5 Security to be given within 3 days The 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. 6 If security not given, action may proceed as on default Where, 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. 7 Judgment may be enforced by attachment and warrant If, 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. 8 Release (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. (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. 9 Caveat against release (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. (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. 10 Payment into Court Except 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. 11 Release of cargo arrested for freight only Where cargo is arrested for freight only, it may be released: (a) by filing an affidavit as to the value of the freight, and paying the amount of the freight into Court; or (b) upon an order of the Court or a Justice upon proof that the freight has already been paid. 12 In salvage actions In 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. 13 On giving security A party: (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 (b) if the action is one of salvage, who has also filed an affidavit as to the value of the property arrested; is entitled to a release for that property, unless a caveat against the release is outstanding in the Caveat Release Book. 14 On consent or discontinuance or dismissal of action Unless a caveat against the release is outstanding in the Caveat Release Book, a release may also be issued by the Registrar: (a) on a consent in writing being filed, signed by the party at whose instance the property was arrested; or (b) on discontinuance or dismissal of the action in which the property was arrested. 15 Release to be left with Marshal When the release is obtained, the party taking it out shall: (a) leave it with the Marshal; and (b) at the same time pay all costs, charges and expenses attending the care and custody of the property while under arrest; and the property shall thereupon be released. 16 Registrar may require Justice’s order The Registrar may refuse to issue a release without the order of a Justice. 17 Liability for delaying release Where 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. 18 Arrest notwithstanding caveat (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. (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. 19 Caveat Payment Book A 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. 20 Caveat against payment out of Court Where 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. 21 Liability for delaying payment The 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. 22 Address of caveator If 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. 23 Withdrawal of caveats A caveat may at any time be withdrawn by the person at whose instance it has been filed on his filing a notice withdrawing it. 24 Caveats may be overruled The Court or a Justice may set aside a caveat. 25 Caveat in Admiralty actions in force for 6 months In 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. Order 31 Summons for directions and consolidation 1 Summons for directions (1) A party to an action may take out a summons for directions at any time before judgment. (2) A summons for directions shall not be taken out by or against a defendant until after that defendant has entered an appearance. 2 Interlocutory proceedings (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. (2) Without prejudice to the generality of the last preceding subrule, the Court or a Justice may: (a) make such order as is just with respect to: (i) discovery and inspection of documents; (ii) interrogatories; (iii) inspections of real or personal property; (iv) admissions of fact or of documents; and (v) the place, time and mode of trial; (b) order that evidence of a particular fact or facts, to be specified in the order, shall be given at the hearing or trial: (i) by statement on oath of information and belief; (ii) by production of documents or entries in books; (iii) by copies of documents or entries; or (iv) otherwise as the Court or Justice directs; (c) order that no more than a specified number of expert witnesses may be called; (d) appoint a Court expert under Order 38; (e) order the action to be set down for trial forthwith and settle the issues to be tried; (f) make such order as is just with respect to pleadings and particulars; (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 (h) may revoke or vary an order made under this subrule. 3 No affidavit to be used without leave An affidavit shall not be used on the hearing of a summons for directions except by leave of the Court or a Justice. 4 Parties to apply for directions On 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. 5 Subsequent applications An 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. 6 Costs of subsequent applications An 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. 7 Consolidation of proceedings Proceedings may be consolidated at any time by order of the Court or a Justice. Order 32 Discovery and inspection 1 Discovery by interrogatories (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. (2) The interrogatories when delivered shall have a note at their foot stating which of the interrogatories a particular party is required to answer. (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. (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. 2 Further interrogatories by leave A party shall not deliver more than one set of interrogatories to the same party without leave of the Court or a Justice. 3 Copy to be filed A copy of the interrogatories delivered by a party shall be filed by him before the time at which they are delivered. 4 Interrogatories to corporation or body politic (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. (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. 5 Applications to set aside (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. (2) An application to set aside interrogatories shall be made within fourteen days after service of the interrogatories. 6 Affidavit in answer, filing (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. (2) A copy of the affidavit shall be delivered to the interrogating party before the time at which the affidavit is filed. 7 Objections to interrogatories by answer An objection to answering an interrogatory may be taken in the affidavit in answer: (a) on the ground that it is scandalous or irrelevant, not bona fide for the purpose of the proceeding, unreasonable, prolix, oppressive or unnecessary; (b) on the ground that the matters inquired into are not sufficiently material at that stage; or (c) on any other ground. 8 Order to answer or answer further If 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. 9 Application for discovery of documents A 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. 10 Affidavit of discovery Where a party is served with a notice for discovery: (a) that party; or (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; shall, within fourteen days after service of the notice, make an affidavit in answer to the notice. 11 Affidavit of documents (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. (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. 12 Production of documents (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. (2) The Court or Justice may deal with the documents, when produced, in such manner as appears just. 13 Neglect to make discovery If 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. 14 Inspection of documents referred to in pleadings or affidavits (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. (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. (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. 15 Time for inspection when notice given under rule 14; bank and trade books The party to whom a notice to produce is given shall: (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 (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; deliver to the party giving the notice to produce a notice stating: (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: (i) at the office of his solicitor; (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 (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 (d) which, if any, of the documents he objects to produce, and on what ground. 16 Order for inspection (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. (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. (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: (a) the documents of which inspection is sought; (b) that the party applying is entitled to inspect them; and (c) that they are believed to be in the possession or power of the other party. (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. 17 Verified copies (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. (2) The affidavit shall state whether or not there are in the original book any, and what, erasures, interlineations and alterations. (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. (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. 18 Power to order discovery of particular document or class of documents (1) The Court or a Justice may: (a) on the application of a party to a proceeding at any time; and (b) whether or not an affidavit of documents has already been made or ordered; make an order requiring another party to state by affidavit: (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 (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. (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. 19 Premature discovery If 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: (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 (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; order that that issue or question be determined first, and reserve the question as to the discovery or inspection. 20 Non-compliance with order for discovery or inspection (1) If a party fails to comply with an order: (a) to answer interrogatories; (b) to give discovery or inspection of documents; or (c) to allow inspection of property; he is liable to attachment. (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: (a) where that party is a plaintiff, his action may be dismissed for want of prosecution; (b) where that party is a defendant, his defence, if any, and counterclaim, if any, may be struck out; (c) where that party is a third party, his appearance may be set aside; and (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; and 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. 21 Service on solicitor of order for discovery (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. (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. 22 Attachment of solicitor When 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. 23 Using answer to interrogatories at trial (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. (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. 24 Discovery against Marshal In 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. 25 Order to apply to infants (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. (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. Order 33 Admissions and notices to produce 1 Notice of admission of facts A 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. 2 Notice to admit documents (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. (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. (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. (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. (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. 3 Notice to admit facts (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. (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. (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. (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. 4 Judgment or order upon admissions of facts (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. (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. 5 Affidavit of signature to admissions An 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. 6 Service of notice to produce documents An 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. 7 Costs of notice where documents unnecessary lf 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. Order 34 Issues, inquiries and accounts 1 Issues may be prepared and settled (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. (2) The issues shall, if the parties differ, be settled by the Court or a Justice. 2 lnquiries and accounts, when directed The 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. 3 Special direction as to mode of taking account The Court or a Justice may, either by the judgment or order directing an account to be taken or by a subsequent order: (a) give special directions with regard to the mode in which the account is to be taken or vouched; and (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. 4 Accounts to be verified by affidavit and items numbered (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. (2) The items on each side of the account shall be numbered consecutively. (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. 5 Mode of vouching accounts Upon 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. 6 Surcharge A 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. 7 lnquiry as to outstanding personal estate A 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. 8 Accounts and inquiries to be numbered Where 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. 9 Just allowances In taking an account directed by judgment or order, all just allowances shall be made without any direction for that purpose. 10 Registrar to report delay Where 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. 11 Expediting proceedings in case of undue delay (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: (a) require the party having the conduct of the proceedings, or any other party, to explain the delay; and (b) thereupon make such order, as the circumstances of the case require, with regard to: (i) expediting the proceedings or the conduct or stay of the proceedings; and (ii) the costs of the proceedings. (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. (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. Order 35 Questions of law and issues of fact without pleadings I Special case 1 Special case by consent (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. (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. (3) Upon the argument of the case the Court and the parties may refer to the whole contents of the documents stated. (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. 2 Special case by order before trial (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. (2) Such other or further proceedings as the decision of the question of law may render unnecessary may thereupon be stayed. 3 Special case to be prepared etc (1) A special case shall be: (a) prepared by the plaintiff or the party having the carriage of the proceedings; (b) signed by the several parties, their counsel or solicitors; (c) filed by the plaintiff or the party having the carriage of the proceedings in the Registry in which the proceeding is then pending. (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. 4 Leave to set down where person under disability is a party (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. (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. 5 Form of entry for argument A 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: (a) by filing in the Registry in which the proceeding is then pending a memorandum of entry; and (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. 6 Notice of entry On 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. 7 Agreement as to payment of money and costs (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. (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. 8 Special case heard by Full Court in first instance A 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. II Issues of fact without pleadings 9 Trial of questions of fact agreed upon (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. (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. (3) The issue may be entered for trial and tried in the same manner as an issue joined in an ordinary action. (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. 10 Order for payment of sum of money The 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. 11 Entry of judgment upon the finding Upon the finding on an issue such as is mentioned in rule 9 of this Order: (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 (b) execution may issue upon that judgment forthwith; unless 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. Order 36 Trial I Place 1 Place of trial or hearing Unless 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. 2 Revoking or varying directions as to trial or hearing Where 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. II Mode of trial 3 Mode of trial (1) In every proceeding the mode of trial shall be by a Justice without a jury unless the Court or a Justice otherwise orders. (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. 4 Party seeking trial by jury A 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. 5 Court may direct trial with jury at any time If, 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. 6 Questions of fact may be tried differently, one before the other (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: (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 (b) appoint the places for the trials. (2) The Court or Justice may, for any of the purposes specified in the last preceding subrule, vary a previous order. 7 Number of Justices A 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. III Notice of and entry for trial 8 Notice of trial by plaintiff Notice 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. 9 Notice of trial by defendant — motion to dismiss for want of prosecution (1) If the plaintiff does not give notice of trial: (a) within six weeks after he is first entitled to do so; (b) within the like period after a new trial is ordered; or (c) in either case, within such extended time as the Court or a Justice allows; a 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. (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. 10 Form of notice of trial The 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. 11 Length of notice Twenty-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. 12 Entry of cause for trial (1) Notice of trial shall be given before entering the action or questions or issues for trial. (2) An action may be entered for trial, notwithstanding that the pleadings are not closed, provided that notice of trial has been given. 13 Avoidance of notice of trial A 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. 14 Notice of trial Notice 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. 15 Countermanding notice A 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. 16 Entry for trial by party served with notice If 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. 17 Entry by Registrar in list Upon 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. 18 Time for entry before commencement of sittings Unless 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. 19 Setting down of causes on further consideration (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. (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. (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. (4) The request may be in the form numbered 53 in the First Schedule. (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. (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. (7) The notice under the last preceding subrule may be in the form numbered 54 in the First Schedule. 20 Withdrawal of trial after entering Upon 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. 21 Order of trial If an entry for trial is duly made by a plaintiff and by a defendant, the defendant’s entry shall be vacated. IV Papers for Justice 22 Copies of pleadings etc to be delivered (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. (2) One of the copies shall be for the use of the Justice at the trial. (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. V Proceedings at hearing or trial 23 Default of appearance by defendant at trial If, when a trial is called on, the plaintiff appears and the defendant does not appear, then the plaintiff: (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 (b) in all other cases, may prove his claim so far as the burden of proof lies on him. 24 Default of appearance by plaintiff If, when a trial is called on, the defendant appears and the plaintiff does not appear, the defendant: (a) if he has no counterclaim, shall be entitled to judgment dismissing the action; or (b) if he has a counterclaim, then: (i) may prove the counterclaim so far as the burden of proof lies upon him; or (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. 25 Default of appearance by both parties If, 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. 26 Judgment by default may be set aside on terms (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. (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. 27 Adjournment of trial The 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. 28 Solicitor through whose default trial is delayed may be ordered to pay costs Where, upon a trial, it appears that it cannot conveniently proceed by reason of the solicitor for a party: (a) having neglected to attend personally or by some proper person on his behalf; or (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; that solicitor shall personally pay to all or any of the parties such costs as the Justice or Court thinks fit to award. 29 Evidence in mitigation of damages in action for libel or slander Where, 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: (a) as to the circumstances in which the libel or slander was published; or (b) as to the character of the plaintiff; without 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. 30 Disallowance of vexatious question in cross‑examination The 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. 31 Judgment to be entered at or after trial The 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. 32 No non-suit There is no judgment of non-suit. 33 Times of commencement and termination of trial (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. (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. (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. 34 Entry of findings of fact on trial Upon 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: (a) all such findings of fact as the Justice directs to be entered; (b) the directions, if any, of the Justice as to judgment; and (c) the certificates, if any, granted by the Justice. 35 Certificate for entry of judgment (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. (2) The certificate shall be in the form numbered 32 in the First Schedule, with such variations as the circumstances require. (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. VI Writ of inquiry and reference as to damages 36 Application of Rules Rules 11, 12, 15, 26, 27 and 29 of this Order apply, with the necessary modifications, to an inquiry for the assessment of damages. 37 Writ of trial and inquiry abolished A 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. 38 Ascertainment of damages where a matter of calculation (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. (2) The attendance of witnesses and the production of documents before the Registrar may be compelled by subpoena. (3) The Registrar may adjourn the inquiry from time to time. (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. (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. 39 Damages in respect of continuing cause of action Where damages are to be assessed in respect of a continuing cause of action, they shall be assessed down to the time of the assessment. Order 37 Evidence I Office copies 1 Obtaining office copies A 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. 2 Office copies admissible in evidence An 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. II Examination of witnesses upon commission etc 3 Court or Justice may order depositions to be taken (1) The Court or a Justice may, in any proceeding, if it appears necessary for the purpose of justice: (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 (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. (2) The Court or Justice may give directions with respect to the procedure to be followed in and in relation to the examination. (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. 4 Letters of request (1) Where the Court or a Justice so orders, a request to examine witnesses shall be issued. (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. 5 Examination of witnesses abroad Where 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: (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 (b) the undertaking shall be accompanied by: (i) a request in the form numbered 49 in the First Schedule, with such variations as are directed in the order for its issue; (ii) a translation of the request in the language of the country in which it is to be executed; (iii) a copy, and a translation, of the interrogatories, if any, to accompany the request; and (iv) a copy, and a translation, of the cross-interrogatories, if any. 6 Form of order for examination of witnesses abroad Where 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. 7 Order for attendance of person to produce (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: (a) producing any writings or other documents named in the order which the Court or Justice thinks fit to be produced; or (b) being examined viva voce. (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. 8 Disobedience to order for attendance A person wilfully disobeying an order requiring his attendance for the purpose of being examined or producing a document is guilty of contempt of court. 9 Expenses of person ordered to attend A 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. 10 Examiner to have copy of writ and pleadings Where 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. 11 Examination, how taken The 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. 12 Depositions to be taken down in writing, read over to and signed by witness, or if he refuses, by the examiner (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. (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. (3) If the witness refuses to sign the depositions, the examiner shall sign them. (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. (5) When objection is made to a question, the examiner shall: (a) record in the depositions the question and the objection and his opinion on the objection; and (b) state his opinion to the counsel, solicitors or parties; but he may not decide upon the materiality or relevancy of a question. 13 Refusal of witness to attend or to be sworn (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. (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. 14 Objection by witness to questions (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. (2) The validity of the objection shall be decided by the Court or a Justice. 15 Depositions to be transmitted to Registry (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. (2) A party may have a copy of the depositions, or of a part of the depositions, on payment of the prescribed fee. 16 Special report by examiner (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. (2) The Court or a Justice may direct such proceedings and make such order as upon the report it or he thinks just. 17 Depositions not to be given in evidence without consent or by leave of Justice (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. (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. 18 Oaths An 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. 19 Attendance of witness under subpoena for examination or to produce (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. (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. 20 Evidence taken after trial Evidence 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. 21 Practice as to taking evidence at any stage The 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. 22 Special directions as to taking evidence The practice of the Court with respect to evidence at a trial, when applied to evidence to be taken before an officer of the Court or other person in a proceeding after the hearing or trial, is subject to any special directions which may be given in any case. 23 Evidence in proceedings subsequent to trial Evidence taken at a hearing or trial may be used in any subsequent proceedings in the same case. III Subpoena 24 Form of praecipe for a subpoena (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. (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. 25 Form of writ of subpoena A 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. 26 Subpoenas in District Registry Where 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. 27 Subpoena for attendance of witness in Chambers When 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. 28 Subpoena for attendance before Registrar When 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. 29 Number of persons in a subpoena other than a subpoena duces tecum (1) A subpoena, other than a subpoena duces tecum, may contain any number of names. (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”. 30 Number of persons in subpoena duces tecum (1) No more than three persons shall be included in one subpoena duces tecum. (2) The party suing out a subpoena duces tecum may sue out a subpoena for each person if he thinks fit. 31 Correction of errors in subpoena In 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. 32 Service of subpoena (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. (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. 33 Affidavit to prove service of subpoena An 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. 34 Within what time subpoena can be served (1) The service of a subpoena is not valid if not made within twelve weeks after the date of issue of the subpoena. (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. IV Shorthand notes 35 Shorthand notes (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. (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. (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. Order 38 Court experts 1 Interpretation In this Order, unless the contrary intention appears: > Court expert means an independent expert appointed under the next succeeding rule to inquire into and report upon a question of fact or opinion. > 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. > issue for the expert means a question of fact or opinion which a Court expert is required to inquire into and report upon. 2 Application to appoint independent expert In 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. 3 The report of Court expert (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. (2) The report shall be made in writing to the Court, together with such carbon or other copies as the Court requires. (3) Copies of the report shall be forwarded by the proper officer to the parties or to their solicitors. 4 Cross-examination (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. (2) The Court or Justice shall on an application made under the last preceding subrule: (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 (b) make an order for a like cross-examination before an examiner at such time and place as the Court or Justice directs. 5 Nomination and instructions (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. (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. 6 Experiments (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. (2) Failing agreement between the parties, those matters shall be determined by the Court or Justice. 7 Further report The 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. 8 Remuneration (1) The remuneration of the Court expert shall be fixed by the Court or Justice and shall include: (a) a fee for making the report and a fee for any supplementary report; and (b) a sum for each day during which the presence of the Court expert is required either in Court or before an examiner. (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. (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. 9 Several issues Where 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. 10 Costs of proceedings In 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: (a) whether a proceeding should be brought or defended; (b) whether the report or reports of the Court expert should be accepted to any and what extent; (c) the matters on which he might properly be cross-examined upon his report or reports; and (d) if proper, the attendance in Court of the expert so employed. Order 39 Affidavits and depositions 1 Evidence on motions etc (1) Upon a motion, petition or summons, evidence may be given by affidavit. (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. (3) If the person does not attend, his affidavit shall not be read as evidence without the leave of the Court or a Justice. 2 Title of affidavits (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. (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. (3) The costs occasioned by unnecessary prolixity in a title shall be disallowed by the taxing officer. 3 Contents of affidavit (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. (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. (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. 4 Exhibits (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. (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. 5 Certificate on exhibit An 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. 6 Use of figures In an affidavit for use in Court or in Chambers, dates and sums of money shall be written or printed in figures instead of words. 7 Before whom affidavits may be sworn (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. (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. (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: | | $ | | --------------------------------------------------------------------------------------------------- | ---- | | For each oath or affirmation........................ | 0.25 | | If not at Registry or Commissioner’s Office............ | 0.50 | | If more than three miles from Registry or Commissioner’s Office, in addition to travelling expenses | 2.10 | | For signing an exhibit............................ | 0.10 | | For attesting each instrument of security, for each surety..... | 0.50 | 8 Affidavits etc how to be sworn and taken abroad (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. (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. (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. 9 Form of affidavits (1) An affidavit shall be drawn up in the first person and divided into paragraphs. (2) Every paragraph in an affidavit shall be numbered consecutively and, as nearly as may be, confined to a distinct portion of the subject. (3) An affidavit shall be written, typewritten or printed. (4) Costs shall not be allowed for an affidavit or part of an affidavit substantially departing from this rule. 10 Description and abode of deponent to be stated An affidavit shall state the description and true place of abode of the deponent. 11 Affidavits made by two or more deponents (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. (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. 12 Filing before using An 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. 13 Affidavits to be filed in proper Registry (1) An affidavit used in any proceeding shall be filed in the proper Registry. (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. (3) An affidavit shall not be filed or used without such a note unless the Court or a Justice otherwise directs. 14 Scandalous matter The 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. 15 Alterations in affidavits When 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: (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 (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. 16 Affidavits by illiterate or blind persons (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: (a) the affidavit was read in his presence to the deponent; (b) the deponent seemed perfectly to understand it; and (c) the deponent made his or her mark or signature in the presence of that person. (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. 17 Affirmations When 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. 18 Use of defective affidavit The 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. 21 Special times for filing affidavits Where 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. 22 Affidavits in support of ex parte applications Except 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. 23 Copies of affidavits to be served (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. (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. 24 Alterations in accounts to be initialled An 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. Order 40 Exhibits 1 List of exhibits (1) The Associate, Registrar or other proper officer: (a) shall take charge of every document or object put in as an exhibit during the trial or hearing of any proceeding; (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 (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. (2) The list of exhibits when completed shall form part of the record of the proceeding. (3) For the purpose of this Order, a bundle of documents may be treated and counted as one exhibit. 2 Office copy of list of exhibits (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. (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. Order 41 New trials 1 New trial of cause heard without a jury (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. (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. 2 New trial of cause tried with a jury (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. (2) No rule nisi or order to show cause, or other formal proceeding, other than the notice of motion, shall be made or taken. (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. 3 Service of notice of motion (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. (2) In the computation of the period referred to in this rule, the time of the vacations shall be included. 4 Application of rules relating to appeals The provisions of these rules relating to appeals apply, so far as applicable, to applications under this Order. 5 Hearing of application (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. (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. 6 Evidence of Judge’s direction If, 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. Order 42 Motion for judgment 1 Judgment on motion for judgment Except 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. 2 Setting down motion for judgment where issues have been directed to be tried (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. (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. 3 Where some only of issues directed have been tried, any party may apply to set down action on motion for judgment (a) issues have been ordered to be tried, or issues or questions of fact to be determined in any manner; and (b) some only of those issues or questions of fact have been tried or determined; a party who considers that the result of the trial or determination: (c) renders the trial or determination of the others of them unnecessary; or (d) renders it desirable that the trial or determination of them should be postponed; may apply to the Court or a Justice for leave to set down a motion for judgment without waiting for that trial or determination. (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. 4 Motion to be set down within one year A 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. 5 Where judgment given etc on motion for judgment Upon 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: (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 (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. Order 43 Entry of judgments 1 Mode of entry (1) Every judgment shall be entered by the proper officer in a book kept for that purpose. (2) The party entering the judgment shall deliver to the officer a copy of the pleadings, if any, not already filed. 2 Recital regarding service In 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. 3 Date of judgment pronounced in Court (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. (2) By special leave of the Court, a judgment may be ante-dated or post-dated. 4 Date of entry of other judgments In 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. 5 Time to be stated for doing any act ordered to be done Where a judgment or order made in a proceeding requires a person to do an act: (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 (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: “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).”. 6 Judgment on production of affidavit or document When 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. 7 Judgment on production of order or certificate When 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. 8 Judgment on Registrar’s certificate When 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. 9 Judgment by consent when party appears by a solicitor When 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. 10 Consent of party in person When 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. 11 Entry of satisfaction (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. (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. (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. Order 43A Interest on judgments 1 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. 2 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. Order 44 Drawing up judgments and orders 1 By whom judgments and orders to be drawn up A 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. 2 Documents to be filed before judgment or order signed A 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. 3 Documents to be left with Registrar on bespeaking judgment or order At 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. 4 Registrar may require party to submit draft (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. (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. 5 Time for bespeaking judgment or order A 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. 6 Where judgment or order not bespoken If 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. 7 Appointment for settling judgment or order At 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. 8 Notice of appointment to be served on opposite party (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. (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. 9 Service of notice of appointment Service 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. 10 Proof of service At 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. 11 Appointment for passing judgment or order (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. (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. 12 Default in attending appointment with documents (1) If a party fails: (a) to attend the Registrar’s appointment for settling the draft of a judgment or order; or (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; the Registrar may proceed to settle the draft, or to pass the judgment or order, in his absence. (2) Where the Registrar proceeds under the last preceding subrule, he may: (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 (b) require the matter to be mentioned to the Court or a Justice. 13 Adjournment of appointments The 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. 14 Settling and passing judgment or order without appointment Notwithstanding 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. 15 Party to engross judgment or order A judgment or order when settled and passed shall be engrossed by the party having the carriage of the judgment or order. 16 Judgments and orders to be filed; duplicates (1) Every judgment and order shall be kept in the Registry as a record. (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. (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. (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. (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. (6) The amendment in the duplicate shall be sealed under the direction of the Registrar. 17 Certificates for special allowance If 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. 18 When orders need not be drawn up (1) When an order is made which does not embody any special terms or include any special directions, but only: (a) gives leave to an officer of the Court, other than a solicitor, to do some act; (b) enlarges the time for taking a proceeding or for doing an act; (c) gives leave: (i) to issue a writ or originating process, other than a writ of attachment; (ii) to amend a writ or originating process or pleadings; (iii) to enter a judgment or order nunc pro tunc; or (iv) to file a document or take a document off the file; or (d) directs a clerical mistake or an error appearing in a judgment or order to be corrected; it is not necessary to draw up the order unless the Court or Justice so directs. (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. (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. (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. 19 Date of order An 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. 20 Authentication (1) A judgment or order shall be marked to show by whom it was made. (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. (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. 21 Entry of judgments and orders etc (1) A judgment or order, when settled and passed, shall be filed by the party having the carriage thereof. (2) An entry of the filing shall be made in books to be kept for that purpose. (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. (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. (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. 22 Application to add to or vary A 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. 23 Consent orders (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. (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. (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. 