Division Div 5 - Rules of the Supreme Court 1971 - Inactive Cases List | ZoeWAIn ForceRegulation
Rules of the Supreme Court 1971
Div 5Inactive Cases List
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Division 5 — Inactive Cases List
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Term used: Inactive Cases List 36
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Case manager may direct party to show cause 36
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Springing order that case be put on Inactive Cases List 37
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Cases inactive for 12 months deemed inactive 37
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Parties to be notified of case being on Inactive Cases List 37
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Consequences of case being on Inactive Cases List 38
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Removing cases from Inactive Cases List 39
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Certain cases taken to have been dismissed 39
Order 4 — Mode of commencing proceedings: applications in pending proceedings
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Commencing civil proceedings 41
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Applications in pending proceedings 41
2A. Civil proceedings under Criminal Law (Mental Impairment) Act 2023 41
- Individual may act in person or by solicitor; body corporate must act by solicitor 42
Order 4AA — Mortgage actions
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Terms used 43
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Application 43
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Commencing mortgage actions 44
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Transitional provision for former Order 62A 44
Order 5 — Writs of summons
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Form of writ 46
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Writ for service outside WA, form of 46
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Place of trial to be shown 46
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Place of issue 46
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Preparation of writ 46
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Sealing of writ 46
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Copy to be left with officer 46
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Writ to be recorded when issued 47
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All writs to be in name of Chief Justice or Senior Puisne Judge 47
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Time for appearance to be stated in writ 47
Order 6 — Indorsement of claim: other indorsements
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Nature of claim etc. to be indorsed on writ 49
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Action for defamation by publication 49
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Statement of claim may be indorsed on writ in some actions 49
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Claim for liquidated demand, indorsements required for, costs etc. 49
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Representative character 50
Writ etc. to state contact details 50
Order 7 — Duration and renewal of writ: concurrent writs
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Duration and renewal of writ 51
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Proof of extension of validity of writ 51
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Concurrent writs 52
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Unserved writs may be struck out 53
Order 8 — Disclosure by solicitors: change of solicitors
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Solicitor to declare, if required to, whether writ issued by him 54
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Change of solicitor 54
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Appointment of solicitor by self-represented person 55
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Intention to act in person, notice of 55
5A. Form and content of notices 55
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Removal of solicitor from record 55
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Withdrawal of solicitor who has ceased to act for party 56
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Effect of order made under this Order 57
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Service details of party whose solicitor is removed 57
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Solicitor not to act for adverse parties 58
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Legal practitioner or clerk not to be security 58
Order 9A — Interested non‑parties
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Terms used 59
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Parties to advise identity of interested non‑parties 59
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Duties of interested non‑party 59
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Disclosure of agreements relating to litigation funding 60
Order 9 — Service of originating process: general provisions
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Service of writ: general provisions 61
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Service of writ as to contract on agent of principal who is outside WA 62
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Effect of serving writ in accordance with contract 63
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Writ for possession of land where no person in possession, service of 63
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Service of other originating process 64
Order 10 — Service outside jurisdiction
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Term used: originating process 65
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Application of this Order 65
Division 2 — Service outside jurisdiction but in Australia
- Service outside State but in Australia 65
Division 3 — Service outside Australia
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Service in New Zealand of documents in relation to Trans‑Tasman proceedings 66
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When allowed without leave under Division 66
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When allowed with leave 70
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Court’s discretion whether to assume jurisdiction 71
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Notice to person served outside Australia 71
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Time for entering appearance 72
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Leave to proceed where no appearance by person 72
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Service of other documents outside Australia 72
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Mode of service 72
Division 4 — Service through foreign or diplomatic officials outside Australia in non‑Convention countries
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Application of Division 73
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Method of service of originating process and Form 5AB 73
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Request for service of originating process 74
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Serving documents under Division 75
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Certification of service taken to be proof of service 75
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Paying expenses 76
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Other methods of service outside Australia not excluded by Division 77
Order 11 — Service of foreign process
2A. Application of this Order 78
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Service pursuant to letter of request for service 78
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Service under Convention 79
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Service to be through sheriff 80
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Consequential orders 81
Order 11A — Service under the Hague Convention
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Terms used 82
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Provisions of this Order to prevail 84
Division 2 — Service abroad of local judicial documents
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Application of this Division 84
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Application for request for service abroad 85
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How application to be dealt with 87
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Procedure on receipt of certificate of service 88
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Payment of costs 89
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Evidence of service 90
Division 3 — Default judgment following service abroad of initiating process
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Application of this Division 90
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Restriction on power to enter default judgment if certificate of service filed 90
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Restriction on power to enter default judgment if certificate of service not filed 92
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Setting aside judgment in default of appearance 92
Division 4 — Local service of foreign judicial documents
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Application of this Division 93
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Certain documents to be referred back to Attorney‑General’s Department of Commonwealth 94
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Service 95
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Affidavit as to service 96
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Who may enter appearance 98
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How to enter an appearance 98
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Procedure on receipt of requisite documents 99
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Appearance to be served on plaintiff 99
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Late appearance 99
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Conditional appearance 100
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Setting aside writ etc. before appearance 100
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Person not named may defend action for possession of land 100
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Person appearing under r. 8 to be named as defendant 101
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Limiting defence in action for possession of land 101
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Defendant who wishes to abide by decision of court to file notice of intention to abide 101
Order 13 — Judgment in default of appearance to writ
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Plaintiff may enter judgment if defendant fails to enter appearance 103
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Claim for liquidated demand 103
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Claims for unliquidated damages 104
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Claim relating to detention of goods (excluding mortgage actions) 104
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Claim for possession of land (excluding mortgage actions) 105
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Mortgage actions 106
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Content of affidavit required by r. 6(2)(b)(ii) 107
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Writs for 2 or more claims to which r. 2 to 6 apply 109
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Writs for other claims 110
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Entry of judgment for costs only upon writs for other claims 111
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Reference to Court in case of doubt or difficulty 111
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Default judgment to inform defendant of certain matters 111
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Service of default judgment 112
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Setting aside or varying default judgment 112
Order 14 — Summary judgment
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When plaintiff may apply for summary judgment 113
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Application under r. 1, how to make 113
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Judgment may be given for plaintiff 114
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Defendant may be given leave to defend 114
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Summary judgment on counterclaim 115
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Court’s powers if leave to defend given etc. 115
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Costs 116
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Right to proceed with residue of action or counterclaim 116
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Judgment for delivery of specific chattel 117
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Relief from judgment for recovery of land 117
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Summary judgment against absent party may be set aside or varied 117
Order 16 — Summary judgment on application of defendant
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Application by defendant for summary judgment 118
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Plaintiff may show cause 118
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Court’s powers if action to go to trial 119
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Summary judgment against absent party may be set aside or varied 119
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When interpleader relief may be granted 120
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How to apply for interpleader relief 120
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Time for application by defendant 121
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Stay of proceedings 121
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Court’s powers on application 121
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Summary determination 121
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Where question of law only 121
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Claimant failing to appear etc. 122
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Power to order sale of goods 122
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Discovery etc. and trial 122
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One order where several causes pending 122
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Orders as to costs etc. 123
Order 18 — Causes of action, counterclaims and parties
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Joinder of causes of action 124
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Counterclaim against plaintiff 124
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Counterclaim against additional parties 125
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Joinder of parties 126
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Court may order separate trials etc. 127
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Misjoinder and nonjoinder of parties 127
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Change of parties by reason of death etc. 128
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Order made under r. 6 or 7, consequences of 129
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Failure to proceed after death of party 131
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Action for possession of land, joining non-party who is in possession 131
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Relator actions 132
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Representation of persons with same interest in proceedings 132
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Representation of interested persons who cannot be ascertained etc. 133
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Representation of beneficiaries by trustees etc. 135
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Representation of deceased person interested in proceedings 135
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Declaratory judgment 136
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Conduct of proceedings 136
Order 18A — Representative proceedings under the Civil Procedure (Representative Proceedings) Act 2022
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Terms used 137
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Person must act by legal practitioner 137
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Representative Proceedings List; headings to documents 137
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Form of consent to be group member 138
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Form of opt‑out notice 138
Order 19 — Third party and similar proceedings
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Third party notice 139
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Application for leave to issue third party notice 140
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Issue and service of, and entry of appearance to, third party notice 140
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Third party directions 141
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Default of third party etc. 142
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Setting aside third party proceedings 143
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Judgment between defendant and third party 143
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Claims and issues between defendant and another party 143
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Claims by third and subsequent parties 144
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Offer of contribution 145
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Counterclaim by defendant 145
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Costs 146
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Statement of claim, service of 147
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Statement of claim, content of 147
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Pleadings etc. to be filed before service 147
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Defence, service of 148
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Reply and defence to counterclaim, service of 148
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Pleadings subsequent to reply etc., leave required for 149
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Pleadings, formal requirements of 149
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Facts, not evidence, to be pleaded 150
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Matters which must be specifically pleaded 151
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Matter may be pleaded whenever arising 152
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Party’s pleadings to be consistent 152
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Points of law may be pleaded 152
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Particulars of claims etc. 152
13A. Particulars in defamation actions 154
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Admissions, traverses etc. 155
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Denial by joinder of issue 155
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Defence of tender not available without payment into court 156
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Defence of set‑off 156
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Counterclaim and defence to counterclaim 156
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Striking out pleadings etc. 157
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Close of pleadings 158
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Trial without pleadings 158
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Preparation of issues 159
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Collision between vessels, content etc. of Preliminary Act 159
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Failure to file Preliminary Act 161
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Amending writ without leave 163
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Amending memorandum of appearance 163
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Amending pleadings without leave 163
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Amending writ or pleading with leave 164
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Amending other originating process 165
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Amending other documents 165
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Failure to amend after order 165
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How amendments to be made 165
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Clerical errors etc., correcting (slip rule) 166
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Service of amended documents 166
Order 23 — Discontinuance
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Withdrawing appearance 167
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Plaintiff may discontinue; defence etc. may be withdrawn 167
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Costs 168
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Subsequent action stayed pending payment 168
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Withdrawal of summons 168
Order 24 — Payment into and out of court
- Term used: trust account 169
Division 2 — Payment into court
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Terms used 169
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Payment of money into court 169
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Handling of money paid into court 170
Division 3 — Payment out of court
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Terms used 171
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No payment out without order 171
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Payment of money out of court 171
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Payment to estate of deceased person 173
Order 24A — Offer of compromise
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Parties entitled to make offer 174
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Application of this Order to counterclaims and third party notices 174
3A. How to make offer 174
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Time etc. for making, accepting etc. offer 174
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Time for payment of sum offered 176
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Withdrawing acceptance of offer 176
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Offer without prejudice 177
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Disclosure of offer to Court 177
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Failure to comply with accepted offer 177
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Multiple defendants 178
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Costs 178
Order 25 — Security for costs
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Factors that are not grounds for ordering security for costs 182
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Grounds for ordering security for costs 182
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Court has discretion 183
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Term used: plaintiff 183
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Manner of giving security 183
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Action may be stayed 183
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Payment out 184
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Saving 184
Order 26 — Discovery and inspection
1B. Documents not wholly discoverable 185
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Discovery without order 186
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Continuing obligation to give discovery 187
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Determination of issue relevant to right to discovery 188
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List of documents and verifying affidavit, form, content and making of 188
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Defendant entitled to copy of co‑defendant’s list etc. 189
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Order for information as to particular documents 190
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Orders as to discovery 191
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Inspection of documents in list 192
8A. Procedure on discovery 193
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Order for inspection of documents 194
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Order for production to Court 194
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Order for production etc. only if necessary 195
11A. Costs of preparing document to facilitate inspection 195
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Claim of privilege 195
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Inspection of copies of business books 196
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Public interest immunity not affected 196
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Non‑compliance with requirements for discovery etc. 196
16A. Certificate by legal practitioner 197
- Revocation and variation of orders 197
Order 26A — Discovery etc. from non‑parties and potential parties
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Terms used 198
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Public interest immunity not affected 198
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Discovery etc. to identify a potential party 198
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Discovery from potential party 199
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Discovery from non‑party 200
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Order 26 applies to discovery ordered under this Order 201
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Costs 201
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Certificate by legal practitioner for non‑party or potential party 201
Order 27 — Interrogatories
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Notice of and answers to interrogatories 203
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Answers, time for and manner of giving 203
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Interrogatories given to 2 or more parties etc., who has to answer 203
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Content of answers 204
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Grounds for objecting to answer 204
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Answers, who can make 204
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Failing to answer or to answer sufficiently 205
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Non‑compliance with order under r. 7 205
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Use of answers in evidence 206
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Revoking and varying orders 206
Order 28 — Medical examination: inspection of physical objects
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Medical examination of a party 207
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Inspection of physical objects 208
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Admission of other party’s case 210
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Notice to admit facts 210
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Judgment on admissions 210
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Admissions as to and production of documents 211
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Notice to admit authenticity of documents; notice requiring production of documents at trial 212
Order 31 — Special cases and stated cases
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Questions of law, stating of in special case 213
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Preliminary question of law, orders as to 213
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Preparing special case 213
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Special case affecting person under disability, leave needed to enter for argument 214
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Entering special case for argument 214
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Agreement as to payment of money and costs 214
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Reference of case to Court of Appeal (Act s. 58(1)(d)) 215
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Cases stated to Court (not Court of Appeal) by other courts etc. 215
Order 32 — Place and mode of trial
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Trial in circuit town 217
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Application for trial by jury 217
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Usual mode of trial, other modes 217
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Time of trial of questions or issues 217
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Issues may be tried differently 218
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Trial with jury to be by single judge 218
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Disposal of action 218
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Trial by jury, precepts for etc. 218
Order 33 — Entry for trial
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Entry for trial 219
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Consequences of failing to enter for trial as directed 219
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Notice of entry 220
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Form of entry for trial 220
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Papers for judge 220
Order 34 — Proceedings at trial
1A. Outlines for trial 222
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Absence of both parties at trial 222
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Absence of one party at trial 222
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Setting aside judgment given in absence of party 222
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Adjournment of trial 223
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Conduct of trial 223
5A. Time etc. limits at trial 224
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Evidence in mitigation of damages for defamation 225
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Inspection by judge or jury 225
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Judgment at or after trial 225
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Record of proceedings 225
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Where time occupied by trial excessive 226
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Entry of findings of fact on trial 226
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Certificate for entry of judgment 226
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Exhibits 227
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Return of exhibits 227
15A. Return of document etc. to non-party who produced it under subpoena 228
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Death of party before judgment is given 229
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Impounded documents 229
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Assessment of damages by master 229
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Damages to time of assessment 230
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Writ of inquiry not to be used 230
Order 35 — Assessors and referees
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Trial with assessors 231
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Trial before referee 231
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Evidence before referee 231
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Authority of referee 231
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Referee cannot order imprisonment 232
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Referee may submit question to Court 232
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Notice of referee’s report 232
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Adoption etc. of referee’s report in adjourned case 232
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Adoption etc. of referee’s report where case not adjourned 233
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Costs 233
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Application of this Order to other references 233
Order 36 — Evidence: general
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Facts to be proved usually by oral evidence in open court 234
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Evidence by affidavit 234
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Evidence of children etc. (Evidence Act 1906 s. 106S) 234
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Reception of plans etc. in evidence 235
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Orders under r. 2 or 4 may be revoked or varied 235
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Trials of issues etc., evidence in 235
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Depositions as evidence 235
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Court documents admissible in evidence 236
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Evidence at trial may be used in subsequent proceedings 236
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Evidence in another cause 236
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Production of documents 237
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Interest for purposes of Act s. 32 237
Order 36A — Expert evidence
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Terms used 239
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Issuing subpoenas 240
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Form of subpoena 242
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Service of subpoenas 244
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Party may request notice that subpoena to produce has been obeyed 244
5A. Altering date for attendance or production 244
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Compliance with subpoena 245
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Production otherwise than at a trial 247
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Setting aside subpoena to attend to give evidence 247
8A. Setting aside subpoena to produce and directions as to things to be produced 248
8B. How requests under r. 8 and 8A to be made 249
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Inspecting and dealing with documents and things produced otherwise than at a trial 250
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Disposal of documents and things produced 251
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Costs and expenses of compliance 252
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Failure to comply with subpoena is contempt of court 252
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Documents and things in custody of court 253
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Title of affidavits 254
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Form of affidavits 254
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Affidavits by 2 or more deponents 255
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Irregularity 256
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Contents of affidavits 256
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Scandalous matter 257
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Exhibits 257
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Affidavits to be filed 258
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Affidavits not to be filed out of time without leave 258
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Alterations in accounts 258
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This Order additional to Oaths, Affidavits and Statutory Declarations Act 2005 258
Order 38 — Evidence by deposition
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Power to order depositions to be taken 259
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Enforcing attendance of witness 259
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Refusal of witness to attend or be sworn 260
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Time and place of examination, notice of 260
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Documents to be given to examiner 260
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Practice on examination 261
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Expenses of witnesses 261
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Additional witnesses may be examined with parties’ consent 261
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How depositions to be taken 262
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Objection to questions 263
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Examiner may give Court special report 263
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Oaths 263
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Perpetuating testimony 263
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Examiner’s fees 264
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Payment of examiner’s fees 265
Order 38A — Examination of witnesses outside the State
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Terms used 266
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Order applies to Act s. 110 and 111 266
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Applications under Act s. 110 and 111 in civil proceedings 266
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Application under Act s. 110 and 111 in criminal proceedings 267
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Orders under Act s. 110 and 111 267
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Manner of examination 268
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Examiner’s remuneration 268
Order 39 — Taking of evidence for foreign and Australian courts
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Terms used 269
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Applications under Act s. 116 269
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Orders under Act s. 117 269
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Examiner’s remuneration 270
4A. Examiner’s power to administer oaths 270
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Transmission of depositions 271
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Procedure where witness claims privilege 271
Order 39A — Trans‑Tasman Proceedings Act 2010 (Commonwealth) rules
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Term used: Act 273
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Application of this Order 273
Division 2 — Subpoenas to be served in New Zealand
2A. Form of subpoenas 273
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Leave to serve subpoena (Act s. 31) 274
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Setting aside subpoena (Act s. 35 and 36) 275
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Failure to comply with subpoena (Act s. 38) 276
Division 3 — Remote appearances from New Zealand
6A. Appearances by audio link or audiovisual link (Act s. 48) 277
- Evidence by audio link or audiovisual link (Act s. 50) 278
Division 4 — Registration and enforcement of NZ judgments
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Setting aside registration of NZ judgment (Act s. 72) 279
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Stay of enforcement of registered NZ judgment (Act s. 76) 280
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Terms used 281
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Court expert, appointment of etc. 281
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Report of Court expert 282
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Cross‑examination of Court expert 282
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Remuneration of Court expert 282
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Further expert witnesses 283
Order 41 — Motion for judgment
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Judgment to be on motion 284
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When motion for judgment may be set down after trial etc. 284
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Motion for judgment before trial etc. of all issues 284
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Motion for judgment to be set down within one year 285
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Court may draw inferences and determine questions 285
Order 42 — Entry of judgment
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Mode and form of entry 286
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Date from which judgment or order takes effect 286
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Orders to do an act, time for obeying to be specified 286
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Entering judgment on filing of affidavit etc. 287
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Entering judgment pursuant to order etc. 287
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Entering judgment on certificate of master or registrar 287
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Entering judgment by consent when party appears by solicitor 287
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Entering judgment by consent where defendant has not appeared or is self‑represented 288
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Satisfaction of judgments 288
Order 43 — Drawing up judgments and orders
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Drawing up etc. judgments etc. 289
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When order need not be drawn up 289
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Authentication of judgments and orders 290
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Judgments and orders to be court record; issue and use of duplicates 290
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Amending orders 291
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Draft judgment or order to be filed 291
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Appointment to settle draft 292
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Attendance on settling draft 292
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Default of attendance on settling draft 293
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Dispensing with appointment 293
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Registrar’s and Court’s powers to settle judgments etc. 293
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Party to engross settled judgment or order 294
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Certificate for special allowance on taxation of costs 294
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Entry of judgments and orders 295
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Application to vary 295
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Consent orders 295
Order 44A — Foreign Judgments Act 1991 (Commonwealth) rules
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Terms used 297
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Application of this Order 297
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Application for registration (Act s. 6) 297
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Evidence in support of application 298
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Security for costs 299
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Order for registration 299
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Record to be kept of registered judgments 300
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Notice of registration 300
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Indorsement of service 301
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Application to set aside registration 301
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Enforcing registered judgment 302
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Determination of certain questions 302
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Certified copy of judgment obtained in this State 302
Order 45 — Accounts and inquiries
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Summary order for account to be taken 305
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Direction for accounts etc. may be made at any stage 305
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Directions to be numbered 305
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Directions as to mode of taking account 305
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Account to be verified 306
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Vouchers and contested etc. items, directions as to 306
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Surcharge or error, notice of 306
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Allowances that can be made without direction 307
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Expediting proceedings 307
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Distributing fund before all persons entitled are ascertained 307
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Master etc. may be ordered to take accounts or make inquiries 308
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Right to adjournment from registrar etc. 308
Order 46 — Civil Judgments Enforcement Act 2004 rules
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Terms used 309
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Applications that may be dealt with by registrar 309
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Enforcing judgment in action between partners 310
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Application for receiver and injunction 311
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Security to be given by receiver 311
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Remuneration of receiver 312
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Accounts by receiver 312
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Payment of balances by receiver 312
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Default by receiver 313
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Final accounts to be filed 313
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Compensation to party restrained 314
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Compensation by applicant to party restrained 314
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Application to Civil Judgments Enforcement Act 2004 314
Order 52 — Interlocutory injunctions, interim preservation of property
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Application for injunction 315
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Detention etc. of property; securing funds in dispute 315
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Power to order taking of samples etc. 316
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Disposal of perishable property etc. 316
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Order for early trial on application for receiver, injunction etc. 317
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Recovering personal property subject to lien 317
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Directions 318
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Allowance of income or transfer of property during case 318
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Injunction to include undertaking as to compensation to party restrained 318
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Compensation to party restrained by undertaking 319
Order 52A — Freezing orders
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Terms used 320
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Freezing order 320
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Ancillary order 320
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Respondent need not be party to proceeding 321
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Order against judgment debtor, prospective judgment debtor or third party 321
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Court’s other jurisdiction not affected 323
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Service outside Australia of application for order 323
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Costs 323
Order 52B — Search orders
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Terms used 325
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Search order 325
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Requirements for making of search order 325
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Court’s other jurisdiction not affected 326
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Terms of search order 326
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Independent solicitors, appointment of etc. 327
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Costs 328
Order 53 — Sales of land by the Court
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Term used: land 329
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Power to order sale of land 329
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Manner of sale 329
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Directions 329
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Certificate of sale 330
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Mortgage, exchange or partition 330
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Reference of matters to counsel 331
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Objection to counsel’s opinion 331
Order 54 — Originating and other motions
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Application of this Order 332
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Which applications to be made by motion 332
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Notice of motion 332
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Time of notice of motion 332
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Form of notice of motion 332
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Issue of notice of motion 333
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Service of notice of motion with writ etc. 333
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Adjournment etc. 333
Order 55 — Committal and attachment
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Term used: contemnor 334
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Committal for contempt of court 334
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Contempt in face of Court 334
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Other cases of contempt 335
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Form and service of notice or summons 335
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Arresting contemnors 336
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Punishing contemnors 336
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Execution of committal order may be suspended 336
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Discharge from committal 337
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Saving for other powers 337
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Court may make peremptory order in first instance 337
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Application of r. 6 to 9 to attachment etc. 338
Order 56 — Judicial review
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Terms used 339
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Making an application 340
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Serving an application 341
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Options of person served with application 341
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Procedure on application 342
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Discovery and interrogatories 343
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Costs 343
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Issue and filing of writs 343
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Applicant to show interest etc. 344
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Form of writ 345
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Time for return of writ 345
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Service 345
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Service on corporate body, or justices 346
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Return, content etc. of 346
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Pleading to return 347
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No motion for judgment needed in some cases 347
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Peremptory writ 347
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Costs 347
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Proceedings in nature of interpleader 348
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Proceedings not to abate due to death etc. 348
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Mandamus by order 349
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No action against party obeying writ or order 349
Division 4 — Prohibition and procedendo
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Court may direct service of statement of claim instead of issuing prohibition 349
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Proceedings on judgment 349
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Writ of procedendo 350
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Prohibition by order 350
Division 5 — Quo warranto
34A. Application for information of quo warranto 350
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Rules of court applicable 350
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Signature and service of information 351
Order 56A — Review orders under the Magistrates Court Act 2004
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Terms used 352
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Application for review order, making 352
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Application for review order, procedure on 353
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Review order, service of 354
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Review order, hearing of 354
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Final order, making and service of 355
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Application for writ 356
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Power of Court when ex parte application made 356
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Copies of affidavits to be supplied 357
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Court may order release of person restrained 357
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Signed copy of writ to be filed 357
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Order for issue of writ, contents of 358
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Service of writ and notice 358
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Return to writ of habeas corpus 359
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Procedure on hearing 359
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Form of writ 359
Order 58 — Proceedings by originating summons