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Practice Note No. 63

REPEALED - Equity Division





    1 The purpose of this Practice Note is to save costs by avoiding unnecessary appearances before the Court and provide for more efficient conduct of litigation.

    2 This Practice Note will commence on Monday, 3 September 1990.

    Choice of Summons

    3 If it is appropriate to commence proceedings by a summons (see Rules Pt 4; Pt 77 r 76A), a summons under Part 5 rule 4B (not stating an appointment for hearing) should ordinarily be used. A summons under Part 5 rule 4A (stating an appointment for hearing) must be used in proceedings to wind up a company, but otherwise may only be used when it is necessary to obtain an early appointment for hearing and the plaintiff intends to be ready to proceed at the time appointed (whether for final or interlocutory relief or directions). A plaintiff will ordinarily be liable to pay any costs wasted if a rule 4A summons is used where there is no necessity for an early appointment, or if the plaintiff is not ready to proceed at the time appointed for hearing as stated in such a summons.

    Timetable on Summons Under Part 5 Rule 4B

    4 Where the proceedings are commenced by summons under Part 5 rule 4B, and the defendant enters an appearance, the following timetable shall be observed:
        (a) affidavits in chief for the plaintiff shall be served within 28 days of the service of the defendant's appearance;
        (b) affidavits for the defendant shall be served and any cross-claim shall be filed and served within 28 days of the service of the plaintiff's affidavits;
        (c) affidavits in reply for the plaintiff or affidavits in defence of any cross-claim shall be served within 21 days of the service of the defendant's affidavits;
        (d) affidavits of the defendant in reply to the affidavits in defence of any cross-claim shall be served within 21 days of the service of the plaintiff's affidavits.

    5 The above timetable may be varied by agreement between the parties which is recorded in writing.

    6 Discovery should rarely be necessary because proceedings involving substantial disputes of fact will normally be commenced by statement of claim. If either party does require discovery, then unless the circumstances justify the expense of formal discovery, informal discovery should be arranged within 21 days of the date for service of the defendant's affidavits. Subpoenas or notices to produce to parties should not be used as a substitute for discovery. If formal discovery is necessary a direction should be obtained pursuant to para 10 or 11 below.

    7 Within 7 days after expiry of the time fixed for serving the next affidavits to those last served the plaintif should file and serve an appointment for hearing (see Pt 5 r 4B(3) - Form 8). In default the defendant should do so within a further 7 days.

    8 At least 7 days before the date of the hearing each party shall give notice by letter of any directions for which the party will apply.

    9 At the hearing (normally before the Registrar):
    (a) the affidavits will be filed in Court;
    (b) any further directions necessary will be given;
    (c) where one or more parties have failed to comply with the directions for serving affidavits a direction may be given that no further affidavits be served or filed without the leave of the Court;
    (d) the proceedings will be placed in the appropriate list;
    (e) if a party does not appear, the proceedings may be referred immediately to a Judge or Master for determination.

    10 Notwithstanding para 7, an earlier appointment for hearing may be sought if there are grounds for believing that another party does not intend to prosecute or defend the proceedings or if it is necessary to obtain a direction which is not consented to.

    11 If it is agreed that a direction should be given before the appointment for hearing, eg that there should be formal discovery and inspection, that the proceeding should continue on pleadings or that another person be joined as a party, a consent order may be left in an envelope addressed to the Registrar in Equity with the Registrar's receptionist on level 5. It may be assumed that the order will be made by the second following working day unless the parties are notified otherwise. Alternatively, the solicitors may arrange with the receptionist an appointment before the Registrar in Equity to request that the consent order be made.

    12 The Court may, of its own motion, appoint a directions hearing in matters in which no appointment for hearing has been sought.


    13 Where any party fails to comply with any of the above provisions, the Court (normally the Registrar) may order the party to pay the costs of any other party occasioned by the failure. The Registrar has power to make orders for immediate payment of such costs and to assess the amount thereof. Further, the provisions of Part 52 rule 66 (Liability of Solicitor for Costs) may be invoked before a Master to whom the Registrar will refer appropriate cases.


    14 Until 2 October 1990 a copy of this Practice Note must be delivered to defendants at the time of service of the summons. Copies will be available in the Registry.

    Chief Justice
    20 June 1990

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