[updated to include amendment 31 Gazetted 25 September 2008]
[NOTE: This is not an official reproduction of the Rules. Whilst every attempt has been made to accurately reproduce the rules, their accuracy is not guaranteed.]
being
Magistrates
Court (Civil) Rules (Govt. Gaz. 6 July 1992, p.459)
as
amended by
Amendment No.1 to the Magistrates Court (Civil) Rules (Govt. Gaz. 7 January 1993, p. 47)
Amendment No.2 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 18 March 1993, p. 991)
Amendment No.3 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 18 March 1993, p. 994)
Amendment No.2 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 25 March 1993, p. 1092)
Amendment No.5 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 24 June 1993, p. 2159,
re-gazetted 1 July 1994, p.447
[Commencement date 1 September 1993]
Amendment No.6 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 28 October 1993, p. 2132)
Amendment No.7 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 17 February 1994 p. 493)
[Commencement date 7 March 1994]
Amendment No.8 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 10 March 1994, p. 701)
Amendment No.9 to the Magistrates Court (Civil) Rules (Govt. Gaz. 29
June 1995, p. 3027) [Commencement
date 1 July 1995]
Amendment No.10 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 7 September 1995, p. 696)
Amendment No.11 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 7 March 1996, p. 1485)
Amendment No.12 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 6 June 1996, p. 2892)
Amendment No. 13 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 3 October 1996, p. 1284)
[Commencement date 7 October 1996]
Amendment No. 14 to the
Magistrates Court (Civil) Rules (Govt. Gaz. 8 May 1997, p. 1741)
Amendment No. 15 to the
Magistrates Court (Civil ) Rules (Govt. Gaz 15 April 1999, p. 1985)
Amendment No. 16 to the
Magistrates Court (Civil) Rules (Gov. Gaz. 29 June 2000, p. 3474)
[Commencement date 1 July
2000]
Erratum (Gov. Gaz. 10 August
2000, p 465)
Amendment No. 17 to the
Magistrates Court (Civil) Rules (Gov. Gaz. 21 June 2001, p. 2308)
Amendment No. 18 to the
Magistrates Court (Civil) Rules (Gov. Gaz. 8 November 2001, p. 4856)
Amendment
No. 19 to the Magistrates Court (Civil) Rules (Gov. Gaz. 26 April 2002, p. 1679)
Erratum
(Gov. Gaz. 16 May 2002)
Amendment
No. 20 to the Magistrates Court (Civil) Rules (Gov. Gaz. 25 September 2003, p.
3631)
Amendment
No. 21 to the Magistrates Court (Civil) Rules (Gov. Gaz. 29 January 2004, p.
279)
Amendment
No 22 to the Magistrates Court (Civil) Rules (Gov. Gaz. 21 October 2004, p.
3909)
Amendment
No 23 to the Magistrates Court (Civil) Rules (Gov. Gaz. 13 January 2005, p.44)
Amendment
No 24 to the Magistrates Court (Civil) Rules (Gov. Gaz. 26 May 2005, p.1331)
Amendment
No 25 to the Magistrates Court (Civil) Rules (Gov. Gaz. 10 November 2005,
p.3919)
Amendment
No 26 to the Magistrates Court (Civil) Rules (Gov. Gaz. 4 May 2006, p.1199)
Amendment No 27 to the Magistrates Court (Civil) Rules (Gov. Gaz. 31 August 2006, p.3035)
Amendment
No 28 to the Magistrates Court (Civil) Rules (Gov. Gaz. 12 July 2007, p.3059)
[Commencement date 9 July
2007]
Amendment
No 29 to the Magistrates Court (Civil) Rules (Gov. Gaz. 20 April 2008, p.1344)
[Commencement date 30
June 2008]
Amendment No 30 to the Magistrates Court (Civil) Rules (Gov. Gaz. 24 July 2008, p.3440)
Amendment No 31 to the Magistrates Court (Civil) Rules (Gov. Gaz. 25 September 2008, p.4558)
SCHEDULES
First Schedule Constitution of the Court
Second Schedule Forms (not on web site)
Third Schedule Scale of Costs (Practitioners’ Fees)PRELIMINARY
1. (1)
These Rules may be cited as the "Magistrates Court (Civil) Rules
1992".
(2) These Rules commence on 6 July 1992.
DEFINITIONS
2.
(1) In
these Rules, unless the contrary intention appears –
"the
Act" means the Magistrates Court Act 1991:
“action”
or “claim” means an action or claim (at law or in equity), defence,
counterclaim, set-off, interpleader, third and subsequent party action or claim,
any other originating application or appellate action or claim and a mediation
and expert opinion arranged by the court in relation to an intended claim,
respectively within the jurisdiction of the Civil Divisions of the Court.
"application"
means an application to the Court of an interlocutory nature:
“authorised
user” means a person authorised by the Courts Administration Authority to
file documents by electronic filing. An
authorised user will be given
a user identifier and must nominate a password. A corporate authorized user will be required to nominate a
natural person(s) as its agent with the authority to act on behalf of the body
corporate, and each of those natural persons will be given a user identifier.
The Principal Registrar can withdraw an authorisation by notice to the
authorised user and without giving any reason:
"costs"
means party and party costs including disbursements, witness fees, experts'
charges and other expenses of and incidental to the conduct of an action:
"costs
on a solicitor/client basis" means calculated in accordance with the
Supreme Court scale unless otherwise specified:
"date
of filing" means the date when a document was apparently sealed with
the seal of the Court:
"defendant"
includes a defendant to a counterclaim or third or subsequent party claim:
"document" includes, in addition to a document in writing:
(a) an audio-tape;
(b) a computer program or software, and any data or information recorded in or processed by a computer;
(c) a film;
(d)
a microfiche record;
or any reproduction of such a document:
"DX"
means the Australian Document Exchange at the following locations - Adelaide,
Berri, Christies Beach, Elizabeth, Kadina, Modbury, Mount Barker, Mount Gambier,
Murray Bridge, Naracoorte, Port Adelaide, Port Augusta, Port Lincoln, Port
Pirie, Tanunda and Whyalla (or any other location fixed by Practice Direction):
"DX
number" means the identifying number, at a DX, of a box at which a
person is entitled to collect documents:
“electronic
filing” means filing by electronic means at the Courts Administration
Authority website:
“e-mail”
means a transfer of documents from one computer to another correctly addressed
to the name, user identification or string which the computer of the addressee
recognizes:
“Enforceable
Payment Agreement” or “EPA” means an agreement under Rule 20B:
"fax"
means a facsimile of a document transmitted through a Telecom system:
"fax
number" means the identifying Telecom number of a subscriber for the
receipt of a fax:
"film"
includes a photograph, videotape, digital images or cinematographic film:
“judgment“
means a judgment, declaration, decree, decision or order of the Court disposing
of an action, and includes an interlocutory judgment or order.
"judgment
debt" includes costs and interest:
"final
judgment" means any judgment –
(a) made with the consent of the parties;
(b) given at the conclusion of a contested hearing;
(c) made in the terms of the acceptance of either an offer to consent to judgment or a payment of a sum of money to the Registrar;
or
(d) a summary judgment:
“Non Payment Order” or
“NPO” means an order made under Rule 127A:
"order" includes
the giving of a direction:
"personal service"
includes service in accordance with Rule 47 Sub-rule (k)(i) and Sub-rule (1):
"person under disability"
includes an infant and any person (whether under statutory protection or not)
who by reason of physical or intellectual impairment is unable to give
sufficient instructions to conduct or compromise an action:
"plaintiff"
includes a plaintiff by counterclaim or third or subsequent party claim:
"pleadings"
includes a statement in writing of the action or claim of a party and any
particulars of such statement:
"proceeding"
means a step or process in the course of an action or the enforcement of a
judgment:
"property" means
real or personal property:
"Registrar"
means any Registrar of the Court other than the Principal Registrar:
"Sheriff"
includes a Deputy Sheriff, a Sheriff's Officer and any person appointed by the
Court to serve or execute any action, proceeding or process, or carry out the
duties of the Sheriff in relation to any matter.
"solicitor"
includes counsel:
"summons" means
a summons to a witness:
“Trial Court” means
–
(a) where an action is filed by electronic means the Adelaide Civil Registry;
(b) in other actions the Registry nearest to where the cause of action arose or where the defendant resides or carries on business;
or
(c)
such other Registry as the Court may nominate.
(2)
A reference to a Commonwealth Act includes a reference to that Act as
amended from time to time and to an Act passed in substitution for that Act.
(3) For the purposes of the Act, the Enforcement of Judgments Act 1991 and these Rules, the Court must be constituted under the First Schedule.
3. (1) (a) In interpreting, applying and enforcing observance of these Rules, the Court and Registrar must in all things promote the expeditious, economical and just conduct and resolution of an action or proceeding.
(b)
These Rules are not intended to defeat the proper action brought in good
faith of any party and are to be interpreted accordingly.
(2) In the exercise of its jurisdiction and powers the Court must attempt to determine all matters in dispute in an action so as to avoid multiplicity of actions.
ORDERS
4.
(1) Unless
the contrary intention appears, where under these Rules the Court has the power
to make an order, grant leave or do any other act or thing it may do so –
(a)
subject to specified conditions, including conditions as to the payment
of costs;
(b)
at any time.
(2)
An order which requires an act to be done will be taken to require it to
be done within 7 days of the date of the order, unless these Rules require, or
the Court orders, otherwise.
(3)
The Court may make an incidental or ancillary order.
(4)
The Court may require a party to file draft Minutes of an order sought.
(5) The terms of any order or leave made or granted on application need not be drawn up unless the Court orders otherwise, and any order or leave endorsed on the application has effect as a formal order or leave.
FORMS
5.
(1) The
Forms set out in the Second Schedule must be used for the purposes specified in
the Schedule or these Rules.
(2)
Where a party is required to use a Form prescribed by these Rules, the
particulars required by the Form must be provided and included in the Form
before it is filed and served on any other person or party.
(3)
It is sufficient compliance with these Rules, as to the Form of any
document, if the document is substantially in accordance with the Form.
(4)
The provision of a user identifier and current password in relation to
the electronic filing of a document is deemed to have the same effect as if the
document was signed by the agent with authority on behalf of a corporate
authorised user, or by an authorised user who is a natural person.
PRACTICE DIRECTIONS
6.
(1) The
Chief Magistrate may issue, vary or revoke a Practice Direction and the practice
and procedure of the Court, subject to these Rules, must be in conformity with
any Practice Direction.
GENERAL POWERS OF COURT
7.
(1) In
addition to exercising powers referred to in these Rules, the Court may –
(a) make an order for inspection of a document notwithstanding that a solicitor claims a lien over the document;
(b) make an order authorising the observation or recording of, or the taking of a sample of or from, any property;
(c) make an order that any person, or in the case of a body corporate a specified officer of that body corporate, make discovery (on oath or otherwise) of all documents and property which are or have been in the possession, custody or power of that person relating to the matters in issue in an action and the order may be general, or limited to such classes of documents or property as the Court thinks fit;
(d)
make an order that any person, or in the case of a body corporate a
specified officer of that body corporate, answer on oath interrogatories
relating to the matters in issue in an action.
(2) An order under this Rule may be made against a person who is not a party to an action.
8.
(1)
Where a party wishes to obtain –
(a) summary judgment in, or the disposal of the whole or part of, an action;
or
(b) immediate relief,
he or she may do so on application accompanied by an affidavit specifying –
(c) why the other party does not have a good action or defence on the merits on any possible view of the facts or law;
or
(d)
why such relief should be granted.
(2)
The Court may -
(a) enter judgment accordingly;
(b) grant the whole or part of the relief sought, and order that the action continue in relation to the part not disposed of;
(c) make an order for an early trial;
or
(d) make any other order.
(3) The Court may accept an Enforceable Payment Agreement verified by an affidavit of one party to it as proof of the matters contained in it.
9.
The Court may order re-service of an action or
proceeding where the Court is satisfied that it has not come to the attention of
a person to whom it is directed and that the person has not attempted to avoid
or prevent service.
10. In an action or proceeding the Court may –
(a) amend any defect or error;
(b) remedy or rectify any omission;
(c) enlarge or abridge the time fixed by these Rules, or by any order, for taking a proceeding or doing any act or thing;
(d) dispense with compliance with any of these Rules, before or after the occasion for compliance arises;
or
(e) take or regard an act or thing to be done at or from a date fixed by the Court.
11.
(1) Where
in an action or proceeding a person or party has been prejudiced or suffered
damage or loss as a result of a wrongful act or the default, neglect, delay or
non-compliance with the Act or these Rules by any other person or party, the
Court may order that other person or party to pay compensation for the
prejudice, damage or loss.
(2)
The order for compensation may be made in respect of any injury,
embarrassment, inconvenience or expense suffered or incurred.
12.
(1) Where
the manner or form of commencing an action, taking a proceeding or doing any
other act or thing is not prescribed by or under any Act or these Rules, the
Court will, on application by any person, give directions as to the steps to be
taken.
(2) Where at
any time the Court considers it necessary or expedient for the speedy
administration of justice or the saving of costs, it may –
(a) on its own initiative, or on application of a party;
or
(b) with the consent of
the parties,
by order, modify or dispense with
the practice and procedure of the Court prescribed by these Rules, or give
directions as to the practice and procedure to be adopted, in respect of any
action or proceeding.
(3)
The Court may make an order or do any other act or thing (even if such
order, act or thing is not specifically referred to in these Rules) if the Court
thinks that it is necessary or expedient to give proper effect to the Act, any
other Act, or these Rules and the justice of the case so requires.
(4) Where these Rules do not regulate the practice and procedure of the Court or a Registrar in respect of the whole or part of any action, proceeding, act or thing, the Court or Registrar will adopt (with necessary modification) the appropriate practice and procedure of the Supreme Court.
LEGAL
REPRESENTATION
13
(1) A
solicitor is taken to be acting for a party in an action when he or she files
and serves notice in writing of that fact on all other parties and must continue
to act until the Court orders that he or she may cease to act, or his or her
client has filed a notice in writing that the solicitor is no longer acting.
(2)
A firm or company of solicitors must nominate a person within the firm or
company as the contact person and that person is a person acting for the party
for the purpose of these rules unless the firm or company advises the court in
writing that a different person is the contact person, or the firm or company
ceases to act in accordance with these Rules.
(3)
Subject to any Act a party may do any act or thing under these Rules by
his/her solicitor.
(4)
In deciding whether a party would be unfairly disadvantaged in a minor
civil action, if not represented by a legal practitioner, the Court must have
regard to whether –
(a) the party has a judgment in his/her favour in
the action,
(b) the party will suffer undue expense or
inconvenience in attending,
(c) the party is unable to attend due to ill
health,
(d) any other proper cause exists.
PERSONS
UNDER DISABILITY
14.
(1) A person under disability must have a
litigation guardian to conduct an action on his or her behalf.
(2)
Where a person under disability is a party to an action anything which he
or she, if not under disability, would be required or authorised to do, is
required or authorised to be done by the litigation guardian.
(3)
Failure to appoint a litigation guardian does not invalidate an action.
15.
An action filed by a litigation guardian must state –
(a) the identity and address of the litigation guardian;
and
(b) the identity of the person under disability and the nature of the disability (and, where it is infancy, the date of birth of the infant).16.
Subject to any Act, the Court, on its own initiative or on
application by a person under disability, may appoint a litigation guardian.
17.
A litigation guardian of a defendant, unless the Court orders
otherwise, is not liable for the costs of any other party.
18.
(1) No
compromise or settlement of an action binds a person under disability unless it
is approved by order of the Court.
(2)
The approval of the Court may be sought at any time.
(3)
Before making an order of approval, the Court must consider an opinion of
counsel filed by the parties on the adequacy or desirability of the proposed
compromise or settlement.
(4)
If the Court makes an order of approval, it may make an order as to the
investment of any settlement money and payments of the capital and income to its
full extent for the maintenance, education, benefit or advancement for and on
behalf of the person under disability and as to the payment of the costs of the
litigation guardian or any party.
(5) Unless
the Court orders otherwise, a compromise or settlement must be made on the basis
that the solicitor acting for the person under disability limits his or her
costs to the party/party costs.
AFFIDAVITS
19. (1)
An affidavit must be in accordance with Form 35.
(2)
In this Rule the jurat is called "the witnessing clause".
(3)
The body of an affidavit must be divided into paragraphs numbered
consecutively, each paragraph being as far as possible confined to a distinct
portion of the subject matter.
(4)
An affidavit used in interlocutory proceedings may contain statements
based on information received and believed by the person making the affidavit to
be true with the sources and the grounds thereof.
(5)
Except as provided by Sub-rule 19(4) and Rule 62(3), or unless the Court
otherwise orders, an affidavit shall contain only such facts as the person
making the affidavit is able of his or her own knowledge to prove.
(6)
Where an affidavit is made by two or more persons, it must have the full
name of each person stated in the witnessing clause, or if sworn separately in
separate witnessing clauses.
(7)
Where an affidavit is filed on behalf of a corporate party which does not
have a solicitor acting for it, the affidavit must be sworn by a director,
secretary or other person duly authorised by the body corporate to make the
affidavit on its behalf.
(8)
Where it appears to the witness before whom an affidavit is sworn that
the person is illiterate or blind, that witness must certify in or below the
witnessing clause that at the time the affidavit was sworn –
(a) the affidavit was read to the person making the affidavit;
and
(b)
the person making the affidavit seemed to understand the affidavit.
(9)
Where it appears to the witness before whom an affidavit is sworn that
the person is by reason of physical incapacity incapable of signing the
affidavit, the person must certify in or below the witnessing clause that
(a) the affidavit was read by or to the person making the affidavit;
(b) the person making the affidavit seemed to understand the affidavit;
and
(c)
that the person making the affidavit swore the affidavit.
(10)
Where an affidavit is made by a person who does not have an adequate
command of the English language –
(a) the affidavit and the oath to be taken must be translated to the person making the affidavit by an interpreter into a language which the person making the affidavit understands;
and
(b)
the interpreter in writing state his/her full name and must certify in or
below the witnessing clause that paragraph (a) has been complied with.
(11)
Where an affidavit is made by –
(a) an illiterate or blind person;
(b) a person making the affidavit who by reason of physical incapacity is incapable of signing the affidavit;
or
(c) a person who does not have an adequate command of the English language,
and the certificate required by
Sub-rule 19(8), 19(9)
or 19(10) has not been provided, the
affidavit must not be used unless the Court is satisfied that the affidavit was
read or translated to the person making the affidavit, as the case requires, and
the person making the affidavit seemed to understand it.
(12)
Subject to Sub-rule 19(14), each page of an affidavit must be signed by
the person making the affidavit and the witness before whom it is sworn.
(13)
Subject to Sub-rule 19(14), alterations, interlineations or erasures in an affidavit
must be initialled by the person making the affidavit and the witness before it
is sworn.
(14)
A person making an affidavit who is physically incapable of signing it,
need not sign it, nor initial alterations, interlineations or erasures but the
witness before whom the affidavit is sworn must initial alterations,
interlineations or erasures.
(15)
A document to be used in conjunction with an affidavit may be annexed and
not exhibited.
(16)
An annexure or exhibit to an affidavit must bear an endorsement, signed
by the witness before whom the affidavit is sworn, that identifies the annexure
as the particular annexure referred to in the affidavit.
(17)
An affidavit, unless the Court otherwise orders, may be received in
evidence notwithstanding any irregularity in form.
(18)
The Court, at any stage of proceedings, may order to be struck out any
matter in an affidavit which –
(a) is unnecessary, irrelevant, prolix, scandalous or argumentative;
or
(b) sets out opinions other than opinions of persons properly qualified to
give them.
(19)
An affidavit may be sworn within South Australia before a Registrar, a
Deputy Registrar, a Notary Public, a Commissioner for Taking Affidavits in the
Supreme Court, a Justice of the Peace for this State, a Commissioned Officer of
the South Australian Police Force, an Officer-in-Charge of a Police Station of,
or above, the rank of Sergeant or as permitted by the Evidence (Affidavits)
Act 1928.
(20) An affidavit may be sworn outside South Australia before any of the persons specified in Section 66 of the Evidence Act 1929.
PRE CLAIM PROCEDURES
20.
(1) A person
intending to bring an action may, by notice in writing to another person,
request the other person to make discovery, and disclose the present
whereabouts, of any document or property that is relevant to the proposed
action.
(2)
If such a request is not complied with within 7 days of the service of
the notice, the Court may order the other person to make discovery and
disclosure by letter or affidavit.
20A. (1) Subject to this Rule and to any order of the Court the plaintiff is not entitled to the costs for filing of a claim other than a counterclaim, a third party claim, a claim for non compliance with an EPA, or a claim under the Workers Liens Act 1893, unless notice in writing of the intended claim was given to the intended defendant not less than 21 days before the filing of the claim, or where Sub‑rule(2) applies in accordance with that Rule, by any means authorised in these Rules for service of a claim.
(2) In an action for damages for personal injuries notice of the claim must be given at least 90 days before the filing of the claim and must be given to the defendant’s insurer if the identity of the insurer is known to the intended plaintiff. Such notice must include notice of any intended claim for past and future economic loss and be supported by documents including medical reports setting out the nature and extent of the plaintiff’s injuries and residual disabilities as known to the plaintiff at the time of the giving of the notice.
(3) Notice of an intended claim may be given in accordance with Form 1A which must be filed with the Court and must bear the Court’s seal. A plaintiff who is successful in a claim is entitled to recover from the defendant any filing fee for this notice.
(4) A debtor may give notice in accordance with Form 1C to a creditor of willingness to consent to judgment for a sum of money and the creditor may file a claim with the notice attached and sign judgment for that sum plus the filing fee, without service of the claim. Notwithstanding these rules but subject to any order of the Court the creditor will not be entitled to legal fees for filing a claim for that sum or less.
(5) Notice of an intended claim or willingness to consent to judgment may be served on a current place of business of the corporation and notice of an intended claim by the Commissioner or Deputy Commissioner of Taxation may be served in accordance with any Act or Regulation which provides for service of notices by the Commissioner or Deputy Commissioner on the taxpayer.
(6) The Registrar must give an action number to any action in which the Court arranges a mediation or expert opinion before a claim is filed by a party.
20B. (1)
An agreement of the extent of a monetary obligation and terms of
repayment may be made in terms of Form 1B (an Enforceable Payment Agreement).
(2)
Where an EPA is in place and is being complied with the creditor must not
make any adverse report about the non payment of the monetary obligation to any
credit referencing agency.
(3)
Where a party to an EPA does not do what was agreed the other party may
seek a judgment in accordance with the EPA, provided that where the EPA is for
payment by instalments two instalment payments must be in arrears before a
creditor can obtain a judgment for a monetary sum.
(4)
The Court may accept an EPA verified by an affidavit of one party to it
as proof of the matters contained in it.
(5)
If payments have been made a creditor seeking to enforce an EPA must
disclose them when seeking judgment and any judgment must allow credit for them.
(6) An EPA may be made before or after a claim has been filed.
21.
(1) On
an application by a person intending to bring an action, the Court may issue a
summons in Form 1 to compel the attendance of another person to give evidence or
produce evidentiary material relevant to the bringing of the proposed action.
(2) The
summons must be served at least 4 clear days before the date fixed for the
attendance.
(3) The
Court may order the person applying for the summons to pay, at the time of
service of the summons, to the person summonsed, the reasonable expenses of
attendance (including transport and accommodation) fixed by the Registrar.
(4) If a
person served with a summons fails to attend or produce the evidentiary material
at the date, time and place fixed in the summons, the Court may issue a warrant
for the arrest of the person and make an order under Section 37(4) of the Act.
(5) A summons issued under this Rule must bear the Court seal.
INTERIM INJUNCTIONS AND
RESTRAINING ORDERS
22.
On an application for an injunction or order under Sections 25 or 26 of
the Act, the Court may –
(a) give directions as to the conduct and service of the application;
(b) order the inspection, photographing, detention, custody or preservation of property that is the subject-matter of an action;
(c) require such bond, security or undertaking as may be appropriate;
(d) order the filing and service of any document;
or
(e) make any other order.PARTIES
23.
(1) The
misjoinder or non-joinder of parties will not defeat an action, but the Court
must ensure that the correct parties are joined to enable the Court to determine
all questions involved in the action.
(2) (a)
Where 2 or more persons carry on business as partners in the State they
may sue and be sued in the name of their firm in respect of any cause of action
accruing at the time the persons were partners, but if the partners are named
they are the parties to the action;
(b) The Court may order a partner to provide a statement on oath of the particulars of persons who were partners of a firm at any relevant time.
(c) A judgment against a firm may be enforced against all partners of the firm at the relevant time.
(3) (a) A trustee, executor or administrator may sue and be sued on behalf or as a representative of the relevant trust property or estate.
(b) The Court may order joinder of any person beneficially interested in the property or estate.
(4) (a) This Sub-rule applies where 3 or more persons have a cause of action or defence (whether identical or not) arising out of, or in respect of, the same, or substantially the same, set of facts or circumstances;
(b) (i) The Court may, by consent, make an order (a "representation order") that in the one action, 1 or more of the persons be appointed to sue or defend on behalf, or for the benefit, of all persons who so consent;
(ii) Unless the Court orders otherwise, a representation order is to be taken to confer on any appointed person or persons complete authority and power in respect of the conduct, compromise, settlement or other disposition of the whole, or any part, of the action;
(c) A representation order may be made even if the remedies or relief sought by the persons (whether at law or in equity) are not identical;
(d) (i) Within 7 days of a representation order being made, the Registrar must give to the parties at least 21 days notice in writing of, and fix a date, time and place for, a directions hearing.
(ii) At a directions hearing, the Court may –
(A) direct that the existence of the action be published, in such manner and form as it thinks fit, to ascertain if any other person wants to consent to being represented in the action;
(B) direct the manner of legal representation of the parties at trial;
(C) give any other directions.
(e) A person who is represented may be entitled to, or liable for, costs in such sum or proportion as the Court may fix.
(f) A person may withdraw his or her consent with leave of the Court not less than 21 days before the date fixed for trial, but thereafter such consent is irrevocable.
(g) A consent must be in writing, signed and filed.
PLEADINGS
24. (1) (a) Subject to any order of the Court a short form of pleading disclosing the date(s), place(s), circumstances and the cause of action upon which the action is based is sufficient.
(b) If the Court requires a more detailed pleading the pleading must comply with the Supreme Court Civil Rules 2006.
(2) (a) Where a natural person denies personal liability on the ground that the liability was incurred or assumed by, or on behalf of, another person or body corporate instead, the natural person must plead all material facts or circumstances –
(i) from which the liability of the other person or body corporate can be implied or inferred;
or
(ii) identifying when, where and how the other person or body corporate incurred or assumed the liability.
(b) Where a party alleges that the parties are bound by a quotation, the party must plead all material facts or circumstances –
(i) from which the quotation can be implied or inferred;
and
(ii) identifying by whom, when, where and how the quotation was given or made.
(3) A claim under the Workers Lien Act 1893 must include the particulars required to enforce a lien or charge under that Act.
(4) A Council constituted under the Local Government Act 1999 making a claim for an instalment of rates may plead the instalment owing and anticipate the other instalments and fines that may become owing in that financial year. The Council may obtain judgment and amend any judgment to reflect the amount owing from time to time for that financial year, up to the total anticipated, by filing a statement of the amount due at that time, which should be served.
(5) No pleading, beyond a reply, is allowed except with leave of the Court.
CLAIM
25.
(1) Except
where otherwise provided, an action must be commenced in Form 2.
(2)
A claim which is not filed by electronic means must state the basis upon
which a particular Registry is the Trial Court.
26.
Except where otherwise provided, a minor civil action must be commenced
in Form 3.
26A.
(1) An
action founded on a neighbourhood dispute or a minor statutory proceeding
pursuant to the legislation listed below must be commenced in the respective
forms set out below -
Building
Works Contractors Act 1995
Form 3G
Fences Act 1975
Form 3A
Landlord and Tenant Act 1936
Form 3E
[other than actions under
Sections 12 or 20 of the Retail and Commercial Leases Act 1995]
(Note: An application
under this Act which involves a monetary claim for more than $10,000 is not a
minor statutory proceeding and must be commenced on Form 2.)
Neighbourhood Dispute
Form 3B
Retail and
Commercial Leases Act 1995
Sections 12, 15 or 49(2)(b) Form 3C
Section 20(6) Form 3D
Section 68,
76(8) or 77(2) Form 3E
(Note: An application
under this Act which involves a monetary claim for more than $10,000 is not a
minor statutory proceeding and must be commenced on Form 2.)
Second-Hand Vehicle Dealers Act 1995 Form 3F
(Note: An application
under Schedule 3 of this Act is not a minor statutory proceeding and must be
commenced on Form 10.)
(2)
On the filing of an action under this Rule the Registrar must fix a date,
time and place for a directions hearing and give at least 7 days notice in
writing to the parties and serve a copy of the form commencing the action,
together with any documents attached to it, on the other parties.
(3)
A party electing to exclude the dispute from the minor civil jurisdiction
may do so at the directions hearing or by application.
27. (1)
A plaintiff may abandon any part of a claim.
(2) A
plaintiff may not claim separately any part of a claim that has been abandoned.
(3) A person
may not commence more than one action in respect of the same or a substantially
similar cause of action.
28. (1)
An action must be served within 1 year of the date of filing.
(2)
The time for service of an action may be extended, on application to the
Court filed within 1 year of the date of filing of the action.
(3) (a) If at the expiry of 21 days after the time for service of an action or any extension thereof –
(i) judgment has not been signed;
or
(ii) a defence has not been filed,
the action will stand dismissed for want of prosecution.
(b) If it appears that an action is not being conducted with due expedition, the Court –
(i) on its own initiative, and upon due notice to the parties;
or
(ii) on application of a party or the Registrar,
may make an order –
(iii) that is necessary or expedient to ensure that the action proceeds to trial as soon as possible (including the fixing of both time limits in respect of any subsequent proceedings and the trial date);
or
(iv)
dismissing the action for want of prosecution.
(c) Where an action is dismissed under this Sub-rule that dismissal has effect as a judgment but not as a final judgment.
(d)
In determining whether an action is not being conducted with due
expedition under paragraph (b) of this Sub-rule, the Court may have regard to
the principles of case flow management expressed in, or time limits fixed by –
(i) the Supreme Court Civil Rules 2006 in respect of the taking of any proceeding or the conduct of the action, as if such principles or time limits applied to a proceeding or action in the Court;
or
(ii)
Practice Direction.
29.
(1) Subject
to these Rules or to an order of the Court, the parties must conduct the whole
of an action up to and including judgment in the Trial Court.
(2)
On application by any person (which may be filed at any Registry of the
Court) the Trial Court may nominate another Registry of the Court to be the
Trial Court.
(3) An application to set aside or vary –
(a) a judgment, must be filed in the Trial Court;
(b) an enforcement process, must be filed in the Registry of the Court in which the process was filed.
DEFENCE
30.
(1) To
defend an action (other than an action under Rules 26A, 37 and 38) a person must
file a defence in Form 4, which may be filed at any Registry of the Court.
(2)
A party intending to object to the jurisdiction of the Court may only do
so on an application filed at the same time as the defence.
COUNTERCLAIM
AND SET-OFF
31.
A counterclaim or set-off must be filed at the same time as
the defence and in Form 5.
32.
(1) A
party intending to file a counterclaim or raise a set-off which is not within
the jurisdiction of the Court must forthwith apply to the Court to have the
matter remitted to the District Court.
(2)
The Court may remit the claim to the District Court or order that the
counterclaim or set-off be heard separately from the claim.
(3)
If the party fails forthwith to apply to the Court, the claim will be
heard separately from the counterclaim or set-off.
33.
(1) Where
there is more than one defendant to a claim, each defendant will be taken to
claim contribution from any other defendant.
(2)
A defendant may require any other defendant to provide particulars of a
claim to contribution.
(3) This Rule does not apply to an action to which Section 72 of the Development Act 1993 applies.
DEFENCE
TO COUNTERCLAIM AND SET-OFF
34.
(1) A
plaintiff will be taken to have filed a defence forthwith to a counterclaim or
set-off, and pleaded to the general issue.
(2)
A defendant may require a plaintiff to provide particulars of a defence
to a counterclaim or set-off.
THIRD
PARTY CLAIM
35.
(1) A
defendant claiming indemnity, contribution or relief related to the claim
against him or her must file a Third Party Claim within 21 days of the filing of
the defence, in Form 6, and serve it together with a copy of the claim.
(2)
The defendant must serve the Third Party Claim on all other parties.
(3)
Form 6 may be adapted for use in any subsequent party claim.
(4)
A third or subsequent party may plead to the plaintiff's claim.
(5)
A defendant, third party and subsequent party may with leave, join
actions between themselves which are related to the plaintiff's claim.
(6) A party may apply for directions in respect of a Third (or subsequent) Party Claim.
INTERPLEADER BY STAKEHOLDER
36.
(1) Where a
person (the "applicant") is or is about to be sued, or could be
sued, in respect of personal property in his or her possession or under his or
her control or in respect of the proceeds from a disposition of the property and
–
(a) is uncertain as to whom the property or proceeds belongs;
or
(b)
receives a claim in respect of the property or proceeds by 2 or more
persons making adverse claims,
the applicant may apply to the
Court for directions as to the parties to be served and as to the procedure to
be followed.
(2) This Rule applies only where the applicant expressly disclaims any personal interest in, or claim to, any part of the property or proceeds in dispute.
STATUTORY ACTIONS
37. (1) Actions (other than criminal proceedings) under the following legislation must be commenced in the respective forms set out below:
Any Act not
otherwise specified
Form 7
Births
Deaths and Marriages Registration Act 1996
Sections 22 and 25 Form 7A
Section 19 Form 7B
Section 34 Form 7C
Section 50
Form 7D
Commercial
Arbitration Act 1986
Form 8
Community
Titles Act 1996
Form 15
Consumer Transactions Act 1972
Sections 13, 15
and 18
Form 9
Criminal
Assets Confiscation Act 2005
Form 9A
Employment Agents Registration Act 1993