High Court Amendment Rules 1997

1997/350

High Court Amendment Rules 1997


Note

These rules are administered in the Ministry of Justice and Department for Courts.


PURSUANT to section 51C of the Judicature Act 1908 and section 11 of the Admiralty Act 1973, His Excellency the Governor-General, acting by and with the advice and consent of the Executive Council and with the concurrence of the Right Honourable the Chief Justice and at least 2 of the other members of the Rules Committee (of whom at least 1 was a Judge of the High Court), makes the following rules.

Contents

521 

706 

Preliminary provisions

Commencement of proceedings

Provisions relating to arrest of property

Security and payment out of court

Leave to intervene in proceedings

Sale of arrested property

Preliminary acts

Judgment by default

Priority of claims

Miscellaneous provisions


1 Title and commencement
  • (1) These rules may be cited as the High Court Amendment Rules 1997, and are part of the High Court Rules from time to time set out in Schedule 2 of the Judicature Act 1908 (the High Court Rules).

    (2) These rules come into force on 1 February 1998.

2 Office hours
  • Rule 22 of the High Court Rules is amended by omitting the expression 9.30 am to 4 pm, and substituting the expression 8.30 am to 5 pm

3 Search of Court records generally
  • (1) Rule 66 of the High Court Rules is amended by revoking subclauses (2) and (3), and substituting the following subclauses:

    • (2) A person who is—

      • (a) A party to a proceeding or interlocutory application; or

      • (b) The solicitor on the record acting for a party to a proceeding or interlocutory application—

      has the right, without payment of a fee, to search, inspect, and take a copy of the file relating to it (despite anything in subclauses (5) and (6), but subject to subclauses (7) and (7A)).

    • (3) Subject to subclauses (5) to (8), a person has the right to search, inspect, and copy a document on a file relating to a proceeding that has been determined.

    (2) Rule 66 of the High Court Rules is amended by revoking subclause (6), and substituting the following subclause:

    • (6) No document may be searched, inspected, or copied if it relates to a proceeding or interlocutory application involving—

      • (a) Defamation:

      • (b) Seduction:

      • (c) Enticement:

      • (d) Breach of promise.

    (3) Rule 66 of the High Court Rules is amended by revoking subclause (8), and substituting the following subclause:

    • (8) No person has the right to search, inspect, or copy a file or a document on a file in a proceeding or interlocutory application after the following periods:

      • (a) If there is a sealed judgment or order, the expiration of 6 years from its date:

      • (b) If there is no sealed judgment or order, the expiration of 6 years from the date of the Judge's reasons or minute making the order.

4 Notice to admit facts
  • Rule 291 of the High Court Rules is amended by revoking subclause (2), and substituting the following subclause:

    • (2) An admission made in compliance with a notice under this rule—

      • (a) May be amended or withdrawn by the party by whom it was made at any time, if the Court so allows and on such terms as the Court thinks just:

      • (b) Must not be used against the party by whom it was made in a proceeding or interlocutory application other than the proceeding or interlocutory application for the purpose of which it was made.

5 Calling of expert witnesses
  • Rule 330 of the High Court Rules is amended by revoking subclause (1), and substituting the following subclause:

    • (1) If a Court expert is appointed in a proceeding or interlocutory application,—

      • (a) A party may call 1 expert witness to give evidence on the question reported on by the Court expert, if the party gives notice of the party's intention to do so a reasonable time before the trial; but

      • (b) No party may call more than 1 such witness without the leave of the Court.

6 New heading and rule inserted
  • The High Court Rules are amended by inserting, after rule 383, the following heading and rule:

    Arbitration by consent

    383A Arbitration by consent
    • (1) The parties to a proceeding may agree to arbitration of their dispute or any part of it under the Arbitration Act 1996 at any time during the course of the proceeding.

      (2) If an arbitration agreement entered into during the course of a proceeding relates to all the matters in dispute in the proceeding, the Court must stay the proceeding.

      (3) If an arbitration agreement entered into during the course of a proceeding relates to some but not all of the matters in dispute in the proceeding, the Court must stay those parts of the proceeding to which the arbitration agreement relates.

      (4) Subclauses (2) and (3) do not apply if the Court finds that the agreement has no effect or is inoperative or incapable of being performed.

7 Directions before setting down
  • Rule 437 of the High Court Rules is amended by adding the following subclause:

    • (8) The Court may, with the consent of the parties, make an order directing the parties to attempt to settle their dispute by such form of mediation or other alternative dispute resolution (to be specified in the order) as the parties have agreed.

8 Directions affecting the trial
  • Rule 438 of the High Court Rules is amended by adding the following subclause:

    • (5) The Court may, with the consent of the parties, make an order directing the parties to attempt to settle their dispute by such form of mediation or other alternative dispute resolution (to be specified in the order) as the parties have agreed.

9 Counsel assisting
  • The High Court Rules are amended by inserting, after rule 438, the following rule:

    438A
    • At the request of the Court, the Solicitor-General must appoint counsel to appear and be heard as counsel assisting the Court.

10 Judge may assist in negotiations for settlement
  • Rule 442 of the High Court Rules (as substituted by rule 13 of the High Court Amendment Rules 1985) is amended by adding, as subclause (2), the following subclause:

    • (2) A Judge may, at any time during the trial, with the consent of the parties, convene a conference in chambers of the parties for the purpose of negotiating for a settlement of the proceeding or of any issue; and the Judge must arrange for a Master or another Judge to assist in such negotiations unless the parties agree that the Trial Judge should assist, in which case the Trial Judge may do so and continue to preside at the trial.

11 Authority to take affidavits in New Zealand
  • The High Court Rules are amended by revoking rule 521, and substituting the following rule:

    521
    • (1) Any affidavit may be sworn in New Zealand before a solicitor of the Court or before a Registrar or before a Justice of the Peace; but no affidavit, except one sworn in respect of a non-contentious proceeding, is permitted to be read or used if it was sworn before a solicitor who, at the time of taking it, was acting as—

      • (a) The solicitor of a party to the proceeding; or

      • (b) A partner in, or a solicitor employed or engaged by, the firm of the solicitor of a party to the proceeding; or

      • (c) The agent of the solicitor of a party to the proceeding.

      (2) In this rule, solicitor means a person enrolled as a barrister and solicitor under or by virtue of the Law Practitioners Act 1982 who is the holder of a current practising certificate as a solicitor or as a barrister or as both a barrister and solicitor.

12 Property that may be charged
  • Rule 579 of the High Court Rules is amended by revoking paragraph (b), and substituting the following paragraph:

    • (b) A debt or sum of money due or accruing due to the opposite party, including money due or accruing due—

      • (i) To the opposite party by a public body; or

      • (ii) Standing to the credit of the opposite party in a proceeding or interlocutory application; or

      • (iii) Standing to the credit of the opposite party in the hands of a Sheriff or officer of a Court:.

13 Order nisi in first instance
  • Rule 580(2) of the High Court Rules is amended by revoking paragraph (b), and substituting the following paragraph:

    • (b) On such person as the Court directs, if money is—

      • (i) Due by the Crown or a public body; or

      • (ii) Standing to the credit of an opposite party in a proceeding or interlocutory application.

14 New rules substituted
  • The High Court Rules are amended by revoking rules 622 to 627, and substituting the following rules:

    622 Crown Proceedings Act 1950 not affected
    • This Part does not limit or affect the Crown Proceedings Act 1950.

    623 Mandamus
    • (1) This rule applies when an application is made to the Court to compel—

      • (a) An inferior Court; or

      • (b) A tribunal; or

      • (c) A person—

      to perform a public duty of the court, tribunal, or person.

      (2) This rule does not apply if the duty is to—

      • (a) Pay a sum of money for the non-payment of which a writ of sale may be issued; or

      • (b) Perform an act for the non-performance of which a writ of arrest may be issued.

      (3) When this rule applies, the Court may make an order for mandamus ordering the Court, tribunal, or person to perform the public duty.

      (4) No proceeding may be commenced against a Court, tribunal, or person for anything done to comply with an order for mandamus.

      Compare: 1908 No 89 Second Schedule, r 461

    624 Injunction
    • (1) This rule applies when an application is made to the Court to restrain—

      • (a) An inferior Court; or

      • (b) A tribunal; or

      • (c) A person—

      from a threatened or actual breach, continuation of a breach, or further breach of a duty of the Court, tribunal, or person.

      (2) When this rule applies, the Court may make an order for injunction restraining a threatened or actual breach, continuation of a breach, or further breach of the duty.

      (3) This rule does not affect the power of the Court to grant the equitable remedy of injunction in a case that does not come within this rule.

      Compare: 1908 No 89 Second Schedule, r 462

    625 Prohibition
    • (1) This rule applies when an application is made to the Court to prohibit—

      • (a) An inferior Court; or

      • (b) A tribunal; or

      • (c) A person—

      from exercising a jurisdiction that the Court, tribunal, or person is not by law empowered to exercise.

      (2) When this rule applies, the Court may make an order for prohibition prohibiting the exercise of the jurisdiction.

      Compare: 1908 No 89 Second Schedule, r 463

    626 Certiorari
    • (1) This rule applies when an application is made to the Court to review all or part of a determination of—

      • (a) An inferior Court; or

      • (b) A tribunal; or

      • (c) A person exercising a statutory or prerogative power; or

      • (d) A person exercising a power that affects the public interest.

      (2) When this rule applies, the Court may do 1 or both of the following:

      • (a) Make an order for certiorari:

      • (b) Make any other order that the Court thinks just.

      Compare: 1908 No 89 Second Schedule, r 465

    627 Removal from office
    • When an application is made to the Court to remove a person from a public office, or to try the right of a person to hold a public office, the Court may—

      • (a) Order that the person be removed from the office; or

      • (b) Declare who is entitled to hold the office; or

      • (c) Make both an order under paragraph (a) and a declaration under paragraph (b).

      Compare: 1908 No 89 Second Schedule, r 464

    627A Death, resignation, or removal of party
    • (1) This rule applies if—

      • (a) An order is sought under this Part against a person; and

      • (b) The person no longer holds office because of death, resignation, or removal.

      (2) This rule does not apply if the cause of action has come to an end.

      (3) When this rule applies, the proceeding may be continued—

      • (a) In the name of the person; or

      • (b) In the name of the person's successor, on the application of the successor or a person interested, and with all necessary amendments.

      (4) An order directed to, or made in the name of, the person is binding on the successor.

      Compare: 1908 No 89 Second Schedule, r 468(j); Gazette, 1936, p 536

    627B Interim orders
    • (1) When an application is made under this Part, the Court may make interim orders on such terms and conditions as the Court thinks fit.

      (2) An applicant who applies for an interim order must file a signed undertaking in the terms stated in subclause (3).

      (3) Those terms are to the effect that the applicant will abide by any order that the Court may make in respect of damages—

      • (a) That are sustained by any other party through the making of the interim order; and

      • (b) That the Court decides the applicant ought to pay.

      (4) The undertaking must be referred to in the order and is part of it.

      Compare: 1908 No 89 Second Schedule, rr 468B, 468C; Gazette, 1909, p 644

15 Contents of notice of appeal
  • The High Court Rules are amended by revoking rule 706, and substituting the following rule:

    706
    • (1) Unless the Court otherwise directs, the notice of appeal must—

      • (a) Bear a heading in form 1, referring to the Act under which the appeal is brought and referring to the matter as being in the matter of an appeal from a decision of a tribunal or person (which decision-maker must be named); and

      • (b) Specify the decision or the part of the decision appealed from; and

      • (c) Specify any error of law alleged by the appellant; and

      • (d) Specify any question of law to be resolved; and

      • (e) Specify the grounds of the appeal, which grounds must be specified with such reasonable particularity as to give full advice of the issues involved to—

        • (i) The Court; and

        • (ii) The other parties; and

        • (iii) The tribunal which, or person who, made the decision appealed from; and

      • (f) Specify the relief sought.

      (2) The grounds of the appeal may be amended by leave of the Court.

      (3) The notice of appeal must not name as a respondent the tribunal which, or person who, made the decision appealed from.

      (4) Nothing in subclause (3) limits or affects rule 718(9) (which entitles a decision-maker to be represented and heard).

16 New Part 14 added
  • The High Court Rules are amended by adding, as Part 14, the following Part:

    Part 14
    Proceedings in admiralty

    Preliminary provisions

    764 Interpretation
    • (1) In this Part, unless the context otherwise requires,—

      The Act means the Admiralty Act 1973

      Action in rem means an admiralty action in rem

      Central Registry means the Wellington Registry of the Court

      Foreign ship has the same meaning as it has in section 2(1) of the Maritime Transport Act 1994

      Limitation action means an action by shipowners or other persons under the Maritime Transport Act 1994 for the limitation of the amount of their liability in connection with a ship or other property.

      (2) Expressions not defined in this Part but defined in the Act have, in this Part, the meanings so defined.

      Compare: SR 1975/85, r 2

    765 Application of this Part
    • This Part applies to—

      • (a) Proceedings in the admiralty jurisdiction of the Court; and

      • (b) Appeals in the Court of Appeal arising out of that admiralty jurisdiction whether commenced before, on, or after the date of commencement of this Part.

      Compare: SR 1975/85, r 3

    766 Application of other rules and practice of Court
    • The provisions of other Parts of these rules, and the general practice of the Court, apply where this Part applies except so far as they are modified by or inconsistent with the Act or this Part.

      Compare: SR 1975/85, r 4

    767 Directions where procedure not prescribed
    • (1) If a party or intending party wishes to take a step in a proceeding and the manner and form of the procedure is not prescribed by this Part or any other Part or by the general practice of the Court, that party may apply to the Court or a Judge for directions.

      (2) A step in a proceeding is properly taken if it is taken in accordance with the directions given on an application under subclause (1).

      Compare: SR 1975/85, r 5

    768 Forms
    • (1) The prescribed forms must be used wherever appropriate.

      (2) If a form has not been prescribed for any application under this Part to the Court, the application must be in the form of an interlocutory application and any order made on that application must be in the form prescribed for an order made on an interlocutory application under these rules.

      (3) If subclause (2) does not apply, the parties may frame a form for the special purpose of the particular case or the Court may frame the form.

      (4) Variations to a prescribed form are permitted if the circumstances of any particular case so require.

      Compare: SR 1975/85, r 6

    Commencement of proceedings

    769 Types of action and issue of notice of proceeding
    • (1) Actions may be in personam or in rem, or both in personam and in rem.

      (2) An action must be commenced by a notice of proceeding—

      • (a) Issued out of any office of the Court; and

      • (b) Endorsed, before being issued, with a concise statement of—

        • (i) The nature of the claim; and

        • (ii) The relief or remedy required; and

        • (iii) The amount claimed (if any).

      (3) The concise statement referred to in subclause (2) is not a statement of claim within the meaning of these rules.

      (4) An action in any case is to be treated as having commenced when a notice of proceeding complying with subclause (2) is filed in that case.

      Compare: SR 1975/85, r 7

    770 Actions in personam and service out of jurisdiction
    • (1) An action in personam must be commenced by a notice of proceeding in form 67.

      (2) The action must be intituled as in form 66.

      (3) Rules 219 to 227 apply in relation to service out of the jurisdiction in an action in personam.

      Compare: SR 1975/85, r 8

    771 Actions in rem and service out of jurisdiction
    • (1) An action in rem must be commenced by a notice of proceeding in form 69.

      (2) The action must be intituled as in form 68.

      (3) No proceedings in rem concerning any claim against the Crown may be brought.

      (4) A notice of proceeding in rem may not be served out of the jurisdiction, but a notice of proceeding that is both in rem and in personam may be served out of the jurisdiction in so far as it is in personam.

      (5) Rules 219 to 227 apply to service out of the jurisdiction under subclause (4).

      (6) An action that is both in rem and in personam, or notice of an action that is both in rem and in personam, must be intituled as in form 66 and be commenced by a notice of proceeding in form 70.

      Compare: SR 1975/85, r 9

    772 Service of notice of proceeding in action in rem
    • (1) The notice of proceeding in an action in rem must be served as follows:

      • (a) On a ship or on cargo, freight, or other property on board a ship,—

        • (i) By attaching a sealed copy of the notice adjacent to the bridge or some conspicuous part of the ship, or adjacent to an entrance way to the superstructure or accommodation section of the ship; and

        • (ii) By leaving a copy of the notice with the person apparently in charge of the ship, if that person is available at the time of service:

      • (b) On cargo, freight, or other property not on board a ship,—

        • (i) By attaching a sealed copy of the notice to that cargo, freight, or other property; and

        • (ii) By leaving a copy of the notice attached to that place:

      • (c) On freight in the hands of an individual,—

        • (i) By showing the person a sealed copy of the notice; and

        • (ii) By leaving a copy of the notice with that person:

      • (d) On proceeds in Court,—

        • (i) By showing the Registrar a sealed copy of notice; and

        • (ii) By leaving a sealed copy of the notice with the Registrar:

      • (e) On inaccessible cargo, freight, or other property,—

        • (i) By showing a sealed copy of the notice to any person appearing to be in charge of that cargo, freight, or other property; and

        • (ii) By leaving a copy of the notice with that person:

      • (f) In any case, by taking such other steps as the Court may order.

      (2) The notice of proceeding must be served by or on behalf of the plaintiff or the plaintiff's solicitor on any person at whose instance a caveat against arrest is entered under rule 777 and a sealed copy of the notice must be delivered to the address for service given in the request for the caveat as soon as the plaintiff or the plaintiff's solicitor becomes aware that the caveat is in force.

      (3) The notice of proceeding may be served on a Sunday, Good Friday or Christmas Day, or any public holiday, as well as on any other day.

      (4) An affidavit of service exhibiting a sealed copy of the notice of proceeding and deposing to the time, place, and method of service must be filed.

      (5) In an action in rem, service of a notice of proceeding or a warrant of arrest is not required if the solicitor for the defendant undertakes in writing to—

      • (a) Accept service; and

      • (b) Enter an appearance; and

      • (c) Give security or pay money into Court instead of giving security.

      Compare: SR 1975/85, r 10

    773 Appearance
    • (1) A party intending to defend an action must enter an appearance in person, or by a solicitor, by filing a memorandum in form 71 within the time and at the place directed in the notice of proceeding.

      (2) The time for entering an appearance is—

      • (a) For a notice of proceeding to be served within the jurisdiction, within 14 days after the day of service:

      • (b) For a notice of proceeding to be served outside the jurisdiction, within the time fixed by any order granting leave to serve the notice outside the jurisdiction.

      (3) The provisions of this rule apply, with all necessary modifications, to an added or substituted defendant, to a third or further party who is served with a third party notice, and to an intervener who has obtained leave to intervene in an action.

      (4) If 2 or more defendants to an action enter an appearance by the same solicitor at the same time, only 1 memorandum need be completed and filed.

      (5) A party not entering an appearance within the time fixed by the notice of proceeding may, by consent of the other parties or by leave of the Judge, enter an appearance at any time on such terms as the Judge may order, but a party may not enter an appearance after judgment has been entered except with the leave of a Judge.

      (6) A defendant to an action may enter a conditional appearance in the action, but a conditional appearance has effect as an unconditional appearance unless—

      • (a) A Judge otherwise orders; or

      • (b) The defendant applies to the Court, within the time fixed for the purpose, for an order under subclause (7) and the Court makes an order under that subclause.

      (7) A defendant to an action may at any time before entering an appearance in the action, or, if the defendant has entered a conditional appearance, within 10 days after the day on which that conditional appearance is entered, apply to the Court for an order—

      • (a) Setting aside the notice of proceeding or service of the notice on the defendant; or

      • (b) Declaring that the notice has not been duly served on the defendant; or

      • (c) Discharging any order giving leave to serve the notice on the defendant out of the jurisdiction.

      (8) On the filing of a memorandum of appearance, the Registrar must enter an appearance in the Register of Admiralty Proceedings, and must return to the party filing the memorandum a duplicate copy showing the date of filing.

      (9) The party filing the memorandum must, as soon as practicable, serve the duplicate copy on the plaintiff, and must immediately serve office copies on those other parties who have entered appearances.

      (10) At the end of every memorandum of appearance there must be an endorsement stating—

      • (a) Whether the appearance is filed by the party appearing in person or by the party's solicitor, as the case may be; and

      • (b) If applicable, the solicitor's name and address, and the name of the solicitor's firm (if any); and

      • (c) If applicable, the name and address of the solicitor acting as agent in the proceeding of the solicitor filing the appearance or of the agent's firm (if any); and

      • (d) An address for service.

      (11) In an action in rem, the appearance must state—

      • (a) The name and true address of the party appearing and the capacity in which that party appears, whether as owner or part owner or otherwise; and

      • (b) The port of registry or port to which the ship belongs;—

      and each statement is prima facie evidence of the matters stated in it.

      (12) A solicitor who, on behalf of any person, undertakes in writing to give security or to pay money into Court instead of bail in an admiralty action in rem, and fails to fulfil that undertaking, is liable to attachment.

      (13) If the last day for entering an appearance falls on a Saturday, a Sunday, or a holiday, the memorandum may be filed on the next day following that Saturday, Sunday, or holiday which is not a holiday.

      (14) Subject to any direction by the Court or a Judge, in calculating the time for filing a memorandum of appearance, the period commencing on 20 December and ending with 20 January must be disregarded.

      (15) A memorandum of appearance may be filed by post, and—

      • (a) The appearance is not to be treated as having been entered until the memorandum is actually received by the Registrar:

      • (b) The duplicate copy to be returned to the party filing the memorandum may be returned by post.

      Compare: SR 1975/85, r 11

    774 Pleadings
    • (1) Every action must be heard with pleadings, unless the Court or a Judge otherwise orders.

      (2) Unless the Court or a Judge gives leave to the contrary, the plaintiff must—

      • (a) File in Court and serve a full and explicit statement of claim on each defendant; and

      • (b) Take the steps specified in paragraph (a) either when the notice of proceeding is served on that defendant or at any time after service of the notice on that defendant, but in no case later than 14 days after that defendant enters an appearance.

      (3) If preliminary acts are required under rule 785, then, unless the Court or a Judge orders the action to be tried without pleadings, the plaintiff must file in Court and serve a statement of claim on each defendant within 14 days after the latest date on which the preliminary act of any party to the action is filed.

      (4) Subclause (3) overrides subclause (2) to the extent that there is a conflict between the application of those provisions in any case.

      Compare: SR 1975/85, r 12

    775 Statement of defence
    • (1) Every defendant who enters an appearance in, and intends to defend, an action must, unless the Court or a Judge gives leave to the contrary, file in Court and serve a statement of defence on the plaintiff within 30 days after the day on which a statement of claim is served on the defendant.

      (2) Rule 129(2) applies to a statement of defence required under this rule.

      Compare: SR 1975/85, r 13

    Provisions relating to arrest of property

    776 Warrant of arrest
    • (1) After the issue of a notice of proceeding or counterclaim in rem, the plaintiff or the defendant to the notice or counterclaim may, by an application in form 72, apply for the issue of a warrant of arrest of the property against which the action or counterclaim is brought.

      (2) If 2 or more ships owned by the same person are named as defendant in an action arising from a cause of action concerning 1 ship only, a warrant of arrest may issue against 1 ship only, and the plaintiff must name that ship in the application for the warrant of arrest.

      (3) The party applying for the issue of a warrant of arrest must cause a search to be made in the Central Registry to determine whether any caveat against the issue of the warrant is in force.

      (4) In support of the application for a warrant of arrest, there must be filed—

      • (a) An affidavit deposing to—

        • (i) The name and description of the party at whose instance the warrant is to issue; and

        • (ii) The nature of the claim; and

        • (iii) The name or nature of the property to be arrested; and

        • (iv) The extent to which the claim has been satisfied, the amount claimed paid into Court, or security for payment of the claim which has been given to the Registrar; and

        • (v) Whether any caveat against the issue of a warrant of arrest has been filed and, if so, whether a copy of the notice of proceeding or a notice requiring payment or security has been served on the caveator; and

      • (b) An indemnity to the Registrar in form 73 and security to the satisfaction of the Registrar for the fees, expenses, and harbour dues (if any) of the Registrar and of the Registrar's appointed officers and agents.

      (5) The Registrar may from time to time require additional security to cover fees, expenses, and harbour dues (if any) referred to in subclause (4)(b).

      (6) If an application for a warrant of arrest is made in a registry other than the Central Registry, the Registrar must, before issuing the warrant of arrest, ascertain from the Central Registry whether a caveat against the issue of a warrant of arrest has been entered.

      (7) Subject to compliance with the preceding provisions of this rule, the Registrar must complete the certificate on the application for a warrant of arrest and must issue a warrant of arrest in form 74.

      (8) The warrant must be served by the Registrar, or any person lawfully authorised (whether generally or specially for the purpose) to act as the Registrar, in the manner prescribed by these rules for the service of a notice of proceeding in an action in rem, and the property is to be treated as having been arrested when the warrant has been served in the prescribed manner.

      (9) The warrant may be served on a Sunday, Good Friday, or Christmas Day, or any public holiday, as well as on any other day.

      (10) A Registrar may, by fax or other means of communication, send notice to the Registrar's appointed officer or agent, or to any other Registrar, of the issue of a warrant of arrest of any ship, and give instructions for the execution of the warrant.

      (11) It is contempt of Court for—

      • (a) The master of a ship, after notice of the issue of a warrant of arrest of that ship has been communicated to the master; or

      • (b) Any other person having notice of the arrest of the ship—

      to move that ship from where it is lying without the consent of the Registrar.

      (12) A Registrar may, in the case of any emergency or special circumstances, issue a warrant of arrest forthwith if the Registrar—

      • (a) Is satisfied that a notice of proceeding has been issued and that there is either an emergency or special circumstances which justify the immediate issue of a warrant of arrest; and

      • (b) Is given such indemnity as the Registrar may require against any claim arising out of the issue of a warrant of arrest.

      (13) The Registrar may, instead of completing the certificate on the application for warrant of arrest, endorse the application to the effect that the warrant is issued under subclause (12).

      (14) A warrant of arrest is valid for 6 months commencing on the day of issue unless sooner withdrawn, but successive warrants may be issued.

      (15) The Registrar must give notice of the arrest of property by serving on any person or by affixing on a conspicuous part of the property a notice in form 75; and service may be effected by the Registrar's duly appointed officer or agent.

      (16) Subclauses (4)(b) and (12)(b) do not require the Crown to give any indemnity or security in the cases mentioned in either of those subclauses.

      (17) In the application of this rule,—

      • (a) Subclause (2) overrides subclause (1); and

      • (b) Subclause (12) overrides subclause (6),—

      to the extent that there is a conflict between the application of those provisions in any case.

      Compare: SR 1975/85, r 15

    777 Caveat against arrest
    • (1) A person may prevent the arrest of any property by filing in the Central Registry a request in form 76 signed by the person or the person's solicitor undertaking—

      • (a) To enter an appearance in any action that may be commenced against the property described in the request; and

      • (b) Within 3 days after receiving notice that such an action has been commenced, to give security to the satisfaction of the Registrar in the sum specified in the request or to pay that sum into Court.

      (2) Immediately on the filing of such a request, the Registrar must enter a caveat in the Register of Admiralty Proceedings.

      (3) If the amount claimed in the action does not exceed the amount specified in the undertaking, the caveator must pay into Court or give security for the amount claimed within 3 days after the day of service of the notice of proceeding or counterclaim.

      (4) If the caveator fails to pay into Court or give security in accordance with this rule, and the party seeking the issue of a warrant of arrest suffers any loss as a result, the Court may order the caveator to pay to that party damages for that loss unless the caveator shows good and sufficient reason for that failure.

      (5) Neither any provision of this Part nor the entry of a caveat under this rule prevents a party from taking out a warrant for the arrest of property, but, if a caveat is entered under this rule against the arrest of the property and a party has that property arrested, that party is liable for costs and damages unless the party shows good and sufficient reason for the arrest.

      (6) A caveat under this rule is valid for 6 months commencing on the day after the date on which it is entered unless sooner withdrawn, but successive caveats may be entered.

      (7) A caveat under this rule may be withdrawn at any time by the filing of a notice of withdrawal signed by the caveator or the caveator's solicitor but the withdrawal does not affect any rights or obligations that may have accrued at the date of the withdrawal.

      (8) The Court may of its own motion or on application set aside a caveat under this rule.

      Compare: SR 1975/85, r 16

    778 Release of property under arrest
    • (1) Unless the property arrested is sold under an order of the Court, property arrested under a warrant of arrest may be released only under the authority of an instrument of release (a release) in form 77 issued out of the registry where the action in which the warrant was issued is proceeding.

      (2) A party at whose instance any property was arrested may, before an appearance is entered in the action, file a notice withdrawing the warrant of arrest and, if the party files the notice, a release must be issued for that property unless such action contravenes subclause (3) or subclause (7).

      (3) Unless the Court otherwise orders, a release must not be issued for property if a caveat against release of that property is in force.

      (4) A release may be issued at the instance of a party interested in the property under arrest if the Court so orders or, unless the Court orders otherwise, if all the other parties to the action in which the warrant of arrest was issued consent.

      (5) Unless a caveat against release is in force, a Registrar may issue a release either on payment into Court of the amount claimed in the notice of proceeding together with the costs of issue and execution of the warrant of arrest, or on security (including a bail bond in form 78) for those amounts first given to the satisfaction of the Registrar.

      (6) If a release is to issue out of a registry other than the Central Registry, the Registrar must, before issuing the release, cause a search to be made in the Register of Admiralty Proceedings in the Central Registry for the purpose of ascertaining whether a caveat against release of the property in question is in force.

      (7) Before a release is issued, the party entitled to its issue must—

      • (a) If a caveat against release of the property in question is in force, give notice to the party at whose instance it was entered or that party's solicitor requiring that the caveat be withdrawn; and

      • (b) File a request for the issue of a release.

      (8) Before property under arrest is released in compliance with a release issued under this rule, the party at whose instance it was issued must, in accordance with the directions of the Registrar, either pay the costs, charges, and expenses due in connection with the care and custody of the property while under arrest or give a written undertaking to pay those costs, charges, and expenses.

      (9) The Court, on the application of any party who objects to directions given to that party by the Registrar under subclause (8), may vary or revoke the directions.

      (10) Subclause (5) overrides subclause (1) to the extent that there is a conflict between the application of those provisions in any case.

      Compare: SR 1975/85, r 17

    779 Caveat against release and payment
    • (1) A person may prevent the release of property under arrest in an action in rem or the payment out of Court of any money in Court representing the proceeds of sale of that property, or both that release and that payment, by filing in the Registry a request in form 79 and, when the request is filed, the Registrar must enter in the Register of Admiralty Proceedings a caveat against the issue of a release for that property or as the case may be, against the payment out of Court of that money, or against both that release and that payment.

      (2) A party who delays the release of property by entry of a caveat is liable in damages to any person having an interest in the property, unless that party shows to the satisfaction of the Court good and sufficient reason for having the caveat entered.

      (3) A caveat under this rule is valid for 6 months commencing on the day after the date of entering, unless sooner withdrawn, but successive caveats may be entered.

      (4) A caveat under this rule may be withdrawn by filing a notice of withdrawal signed by the caveator or the caveator's solicitor.

      (5) The Registrar or any party to an action in rem may apply to the Court for directions concerning any property under arrest (including directions for removal of the property) and, unless the Court otherwise orders, the person applying must give notice of the application to all parties to the action.

      (6) The Court may of its own motion or on application set aside a caveat under this rule.

      Compare: SR 1975/85, r 18

    780 Discharge of cargo under arrest from ships not under arrest and of cargo not under arrest
    • (1) If a ship is not under arrest but cargo on board the ship is, persons interested in the ship who wish to discharge the cargo under arrest may, without intervening in the action, request the Registrar to take the appropriate steps, and the Registrar must apply to the Court under rule 779(5) for the appropriate order if—

      • (a) The Registrar considers the request reasonable; and

      • (b) The applicant gives to the Registrar a satisfactory undertaking in writing to pay on demand the fees and expenses incurred by the Registrar and any of the Registrar's appointed officers or agents in taking the desired steps.

      (2) If the interested persons are unable or unwilling to arrange for an undertaking under subclause (1) to be given, they may intervene in the action in which the cargo is under arrest and apply for an order for discharge of the cargo and for directions as to the fees and expenses incurred by the Registrar, and any of the Registrar's appointed officers or agents, in discharging and storing the cargo under the order.

      (3) If a ship is under arrest but cargo on board the ship is not, persons interested in cargo who wish to secure its discharge may follow 1 or other of the procedures specified in this rule.

      Compare: SR 1975/85, r 19

    Security and payment out of court

    781 Security
    • (1) The amount and form of any security required under this Part may be determined by the Court or a Judge on an application by any party.

      (2) If security is being given by a person not ordinarily resident within the jurisdiction, that person must,—

      • (a) Unless otherwise ordered by the Court, submit to the jurisdiction of the Court for all purposes relating to the security and its enforcement; and

      • (b) Give an address for service within the jurisdiction of the Court.

      Compare: SR 1975/85, r 20

    782 Payment out of Court
    • (1) No money paid into Court in any action may be paid out of Court except under subclause (2) or by order of the Court or a Judge.

      (2) With the written consent of all parties to the action and of any caveator and of any intervener under rule 783, the Registrar may authorise money to be paid out of Court.

      Compare: SR 1975/85, r 21

    Leave to intervene in proceedings

    783 Interveners
    • (1) If property against which an action in rem is brought is under arrest or money representing the proceeds of sale of that property is in Court, a person who has an interest in that property or money but who is not a defendant to the action may, with the leave of the Court, intervene in the action.

      (2) An application for the grant of leave under this rule must be made ex parte and be supported by an affidavit showing the interest of the applicant in the property against which the action is brought or in the money in Court.

      (3) A person to whom leave is granted under this rule must enter an appearance in the action, and the provisions of rule 773, with the necessary modifications, apply as if the intervener were a defendant named in the notice of proceeding.

      (4) The Court may order that a person to whom it grants leave under this rule must, within such period as may be specified in the order, serve on every other party to the action such pleadings as may be specified in the order.

      Compare: SR 1975/85, r 22

    Sale of arrested property

    784 Appraisement and sale of property
    • (1) The Court may either before or after final judgment, order that any property under the arrest of the Court—

      • (a) Be appraised; or

      • (b) Be sold with or without appraisement, and either by public auction or by private contract.

      (2) If the property is deteriorating in value, the Court may order that it be sold immediately.

      (3) If the property sold is of small value, the Court may, if it thinks fit, order that it be sold without a commission of sale being issued.

      (4) A commission for the appraisement and sale of any property under an order of the Court must not be issued until the party applying for it has filed a request in form 80.

      (5) The commission for the appraisement must be in form 81 and must, unless the Court otherwise orders, be executed by the Registrar or the Registrar's duly appointed officer or agent.

      (6) A commission for appraisement and sale may not be executed until an undertaking in writing, satisfactory to the Registrar, to pay the Registrar's fees and expenses on demand has been lodged in the Registrar's office.

      (7) The Registrar must pay into Court the gross proceeds of the sale of any property sold by the Registrar under a commission for sale, and must bring into Court the account relating to the sale (with vouchers in support).

      Compare: SR 1975/85, r 23

    Preliminary acts

    785 Preliminary acts to be filed in collision cases
    • (1) In an action arising out of a collision between ships, unless the Court otherwise orders,—

      • (a) The plaintiff must file a preliminary act within 30 days after the issue of the notice of proceeding:

      • (b) The defendant must file a preliminary act within 30 days after entering an appearance in the action and before any pleading is filed or served.

      (2) A preliminary act is a document containing a statement of the following particulars:

      • (a) The names of the ships which came into collision and their ports of registry:

      • (b) Particulars (referring to the period immediately before the collision) of the person in command, the persons on the bridge, and the persons keeping a lookout on the plaintiff's ship (if the plaintiff is filing a preliminary act) and on the defendant's ship (if the defendant is filing a preliminary act):

      • (c) The date and time of the collision:

      • (d) The place of the collision:

      • (e) The direction and force of the wind:

      • (f) The state of the weather including visibility:

      • (g) The state, direction, and force of the tidal or other current:

      • (h) The ship's course and speed through the water when the other ship was first seen or immediately before any measures were taken in connection with its presence, whichever was the earlier:

      • (i) The lights (if any) carried by the ship:

      • (j) The distance and bearing of the other ship if and when its echo was first observed by radar:

      • (k) The distance, bearing, and approximate heading of the other ship when first seen:

      • (l) The other ship's light or combination of lights (if any) when first seen:

      • (m) The other lights or combination of lights (if any) of the other ship that were subsequently seen before the collision, and the time of the sighting:

      • (n) The alterations (if any) made to the ship's course and speed after the earlier of the 2 times referred to in paragraph (h) up to the time of the collision, and the times of those alterations, and the measures (if any), other than alterations of course or speed, taken to avoid the collision, and times of those measures:

      • (o) The parts of each ship that first came into contact and the approximate angle between the 2 ships at the moment of contact:

      • (p) The sound signals or other signals (if any) given, and the times of those sound signals or other signals:

      • (q) The sound signals or other signals (if any) heard or seen from the other ship, and the times of hearing or seeing those sound signals or other signals.

      (3) The Registrar must seal every preliminary act and file it in a closed envelope (which must be sealed with the official stamp of the Court and show the date of filing), and, unless the Court or a Judge otherwise orders, the envelope must not be opened until the pleadings are closed and a consent signed by each of the parties to the opening of the preliminary acts is filed.

      (4) Every party filing a preliminary act concerning a collision must, within 3 days after it is filed, serve notice of the filing on every other party who has filed a preliminary act concerning the same collision.

      (5) If the Court orders the preliminary acts to be opened, the Court may further order that the action be tried without pleadings, but, in that case, any party who intends to rely on the defence of compulsory pilotage must give notice of the party's intention to do so to the other parties within 7 days after the opening of the preliminary acts.

      (6) If the Court or a Judge orders the action to be tried without pleadings, the Court or a Judge may also order each party, within such period as may be specified in the order, to file a statement of the grounds on which the party charges any other party with negligence in connection with the collision and to serve a copy of the statement on that other party.

      Compare: SR 1975/85, r 24

    786 Proceedings against party in default where other party fails to lodge preliminary act
    • (1) If, in an action referred to in rule 785(1), the plaintiff fails to lodge a preliminary act within the prescribed period, any defendant who has lodged a preliminary act may apply to the Court for an order to dismiss the action and the Court may by order dismiss the action or make such other order on such terms as it thinks just.

      (2) If, in an action referred to in rule 785(1) that is an action in personam, a defendant fails within the prescribed period to lodge a preliminary act and the plaintiff has lodged a preliminary act, rule 787 applies as if the defendant's failure to lodge a preliminary act within that period were a failure to enter an appearance or to file a statement of defence within the periods respectively fixed by or under these rules for doing those things.

      (3) If, in an action referred to in rule 785(1) that is an action in rem, a defendant fails to lodge a preliminary act within the prescribed period, the plaintiff (if the plaintiff has lodged a preliminary act) may apply to the Court by motion for judgment against that defendant and the plaintiff need not file or serve a statement of claim or an affidavit before the hearing of the motion.

      (4) On the hearing of the motion under subclause (3), the Court may make such order as it thinks just, and, if the defendant does not appear on the hearing and the Court considers that judgment should be given for the plaintiff provided the plaintiff proves the plaintiff's case, the Court must order that the plaintiff's preliminary act be opened and require the plaintiff to satisfy the Court that the plaintiff's claim is well founded.

      (5) The plaintiff s evidence may, unless the Court otherwise orders, be given by affidavit without any order or direction.

      (6) If the plaintiff in accordance with a requirement under subclause (4) satisfies the Court that the plaintiff's claim is well founded, the Court may give judgment for the claim and, at the same time, may order that the property against which the action is brought be appraised and sold and the proceeds to be paid into Court or make such order as it thinks just.

      (7) The Court may, on such terms as it thinks just, set aside any judgment entered under this rule.

      (8) In this rule, references to the prescribed period are to be construed as references to the period within which, by virtue of rule 785(1) or of any order of the Court or a Judge, the plaintiff or defendant, as the context of the reference requires, is required to lodge a preliminary act.

      Compare: SR 1975/85, r 25

    Judgment by default

    787 Judgment by default in actions in personam
    • (1) Rules 459 to 470 apply to actions in personam.

      (2) A plaintiff is entitled to proceed to judgment if the defendant fails, within the time fixed by or under this Part, either to enter an appearance or to file a statement of defence, as the case may be, but judgment in such a case must not exceed the amount endorsed on the notice of proceeding or claimed in the statement of claim concerning the demand for costs.

      Compare: SR 1975/85, r 26

    788 Default in filing and service of statement of claim
    • (1) If the plaintiff is required by these rules to file in Court a statement of claim and to serve it on a defendant, and the plaintiff fails to do either of those things,—

      • (a) The defendant may, after the expiration of the period fixed by or under these rules for filing the statement of claim, apply to the Court for an order to dismiss the action; and

      • (b) The Court may by order dismiss the action or make an order on such terms as it thinks just.

      (2) This rule applies to actions in personam and to actions in rem.

      (3) The Court may, on such terms as it thinks just, set aside or vary any default judgment entered under this rule.

      Compare: SR 1975/85, r 27

    789 Third parties
    • If a third party fails to enter an appearance, rule 161 applies as if the failure to enter an appearance were a failure to file a statement of defence.

      Compare: SR 1975/85, r 28

    790 Judgment by default in actions in rem
    • (1) If a notice of proceeding is served under rule 772(2) on a party at whose instance a caveat against arrest has been issued, and—

      • (a) The sum claimed in the action begun by the notice of proceeding does not exceed the amount specified in the undertaking given by that party or that party's solicitor to procure the entry of that caveat; and

      • (b) That party or that party's solicitor does not within 14 days after service of the notice of proceeding fulfil that undertaking,—

      the plaintiff may, on filing an affidavit verifying the facts on which the action is based, apply to the Court for judgment by default.

      (2) Judgment given under subclause (1) may be enforced by—

      • (a) Arrest of the property against which the action was brought:

      • (b) Committal of the party at whose instance the caveat against that property was entered.

      (3) A plaintiff to an action in rem may apply to the Court for judgment by default if—

      • (a) The defendant to the action fails to enter an appearance within the time fixed for appearing; and

      • (b) Not less than 14 days has passed since the notice of proceeding was served; and

      • (c) The plaintiff has filed an affidavit proving due service of the notice of proceeding, a statement of claim (where one has not already been filed), and an affidavit verifying the facts on which the action is based.

      (4) A plaintiff to an action in rem may apply to the Court for judgment by default if—

      • (a) The defendant to the action fails to file and serve a statement of defence on the plaintiff within the period fixed by or under these rules for filing and service of the defence; and

      • (b) The plaintiff has filed—

        • (i) An affidavit stating that no defence was served on the plaintiff by that defendant during the period referred to in paragraph (a); and

        • (ii) An affidavit verifying the facts on which the action is based.

      (5) A party making a counterclaim in an action in rem may apply to the Court for judgment by default if—

      • (a) The defendant to the counterclaim fails to file and serve a defence to the counterclaim on the party making the counterclaim within the period fixed by or under these rules for the filing and service of the defence to a counterclaim; and

      • (b) The party making the counterclaim has filed—

        • (i) An affidavit stating that no defence to the counterclaim has been served on that party by the defendant during that period; and

        • (ii) An affidavit verifying the facts on which the counterclaim is based.

      (6) An application to the Court under this rule must be made by motion, and, if at the hearing the Court is satisfied that the applicant's claim is well founded, it may give judgment for the claim, and, at the same time, it may—

      • (a) Order the property against which the action, or, as the case may be, the counterclaim is brought to be appraised and sold and the proceeds to be paid into Court; or

      • (b) Make such other order as it thinks just.

      (7) In default actions in rem, evidence may, unless the Court otherwise orders, be given by affidavit.

      (8) The Court may, on such terms as it thinks just, set aside or vary any judgment entered under this rule.

      Compare: SR 1975/85, r 29

    Priority of claims

    791 Determination of priority of claims where Court orders sale of ship
    • (1) If in an action in rem against a ship the Court orders the ship to be sold, any party who obtains judgment against the ship or the proceeds of sale of the ship may, on obtaining judgment, apply to the Court by motion for an order determining the order of priority of the claims against the proceeds of the sale of the ship.

      (2) In making an order for the sale of a ship, the Court may further order—

      • (a) That the order of priority of the claims against the proceeds of sale of the ship not be determined until after the expiration of 90 days, or of such other period as the Court may specify, beginning with the day on which the proceeds of sale are paid into Court:

      • (b) That any party to the action or to any other action in rem against the ship or the proceeds of sale of the ship may apply to the Court in the action to which that party is a party to extend the period specified in the order:

      • (c) That, within 7 days after the date of payment into Court of the proceeds of sale, the Registrar must send for publication in the Gazette and such newspaper (if any), as the Court may direct, a notice in form 82.

      (3) If the order for sale contains a further order referred to in subclause (2), an application for an order determining priorities may be made only after the expiration of such period as has been specified by the Court under paragraph (a) or paragraph (b) of that subclause.

      (4) The Registrar must lodge in the registry a copy of each newspaper in which the notice referred to in subclause (2)(c) appeared.

      (5) The expenses incurred by the Registrar in complying with an order of the Court under this rule must be included in the Registrar's expenses relating to the sale of the ship.

      (6) An application to the Court to extend the period referred to in subclause (2)(a) must be served on each party who has begun an action in rem against the ship or the proceeds of sale of the ship.

      (7) Subclause (3) overrides subclause (1) to the extent that there is a conflict between the application of those provisions in any case.

      Compare: SR 1975/85, r 30

    792 Actions for limitation of liability
    • (1) This rule applies to proceedings for relief under Part VII of the Maritime Transport Act 1994.

      (2) The proceedings must be in the form of an admiralty action in personam.

      (3) In the action the person seeking relief is the plaintiff and must be described in the notice of proceeding by name and not described merely as the owner of, or as bearing some other relation to, a particular ship or other property.

      (4) For the purposes of this rule,—

      • (a) Name includes a firm name or the name under which a person carries on business:

      • (b) If any person with a claim against the plaintiff concerning the casualty to which the action relates has been described for the purposes of that claim merely as the owner of, or as bearing some other relation to, a ship or other property, that person may be described in that way as defendant to the notice of proceeding and, if described in that way, is to be treated for the purposes of this rule to have been named in the notice of proceeding by that person's name.

      (5) The plaintiff must make defendant to the action such 1 or more of the persons with claims against the plaintiff concerning the casualty to which the action relates as the plaintiff thinks fit, and must describe those defendants in the notice of proceeding by name.

      (6) If the plaintiff thinks fit, all other persons with claims against the plaintiff concerning the casualty to which the action relates, described generally and not by their names, may be included as defendants to the notice of proceeding.

      (7) The notice of proceeding must be served on 1 or more of the defendants who are named by their names, and need not be served on any other defendant.

      (8) Within 7 days after the entry of appearance by 1 of the defendants named by their names in the notice of proceeding, or, if none of them enters an appearance, within 7 days after the time fixed for appearing, the plaintiff, without filing a statement of claim, must apply to the Court by notice of motion for an order limiting the plaintiff's liability or, in default of such an order, for directions as to the further proceedings in the action, and the following provisions apply:

      • (a) The application must be supported by an affidavit or affidavits proving—

        • (i) The plaintiff's case in the action; and

        • (ii) If none of the defendants named in the notice of proceeding by their names has entered an appearance, service of the notice of proceeding on at least 1 of the defendants so named; and

        • (iii) The names of all the persons (other than defendants to the action who are named in the notice of proceeding by their names) who, to the knowledge of the plaintiff, have claims against the plaintiff concerning the casualty to which the action relates; and

        • (iv) The address of each of those persons, if known to the plaintiff:

      • (b) At least 7 clear days before the hearing of the application, the motion and every affidavit in support of the motion must be served on any defendant who has entered an appearance:

      • (c) If at the hearing of the application it appears to the Court that it is not disputed that the plaintiff has a right to limit the plaintiff's liability, the Court must make a decree limiting the plaintiffs liability and fix the amount to which the liability is to be limited:

      • (d) If at the hearing of the application it appears to the Court that any defendant does not have sufficient information to enable the defendant to decide whether or not to dispute that the plaintiff has a right to limit the plaintiff's liability, the Court must—

        • (i) Give such directions as appear to be appropriate for enabling the defendant to obtain such information; and

        • (ii) Adjourn the hearing:

      • (e) If on the hearing or resumed hearing of the application the Court does not make a decree limiting the plaintiff's liability, the Court must give such directions as to the further proceedings in the action as appear to be appropriate:

      • (f) Any defendant who, after directions have been given under paragraph (e), ceases to dispute the plaintiff's right to limit the plaintiffs liability must immediately file a notice to that effect in the registry of the Court and serve a copy on the plaintiff and on any other defendant who has entered an appearance:

      • (g) If every defendant who disputes the plaintiff's right to limit the plaintiff s liability serves a notice on the plaintiff under paragraph (f), the plaintiff may apply to the Court for an order limiting the plaintiffs liability; and paragraphs (b) and (c) apply to an application under this paragraph as they apply to an application under the preceding provisions of this subclause.

      (9) If the only defendants in the action are those named in the summons by their names and all those persons have been served,—

      • (a) Any order limiting the plaintiff's liability—

        • (i) Need not be advertised; and

        • (ii) Operates only to protect the plaintiff against claims by the persons so named or persons claiming through or under those persons:

      • (b) In any case not covered by paragraph (a), any order limiting the plaintiff s liability—

        • (i) Must be advertised by the plaintiff in such manner and within such time as the order may provide; and

        • (ii) Must fix a time within which persons with claims against the plaintiff concerning the casualty to which the action relates may enter an appearance in the action (if they have not already done so) and file their claims, and, in cases to which subclause (10) applies, file a motion, if they think fit, to set the order aside:

      • (c) The time to be allowed under paragraph (b)(ii) must, unless the Court otherwise orders, be not less than 2 months from the latest date allowed for the appearance of the advertisement and, after the expiration of the time so allowed, leave of the Court is required to enter an appearance, file a claim, or to make an application to set aside the order.

      (10) lf an order limiting the plaintiff's liability fixes a time in accordance with subclause (9)(b),—

      • (a) Any person with a claim against the plaintiff concerning the casualty to which the action relates who—

        • (i) Is not named in the notice of proceeding as a defendant to the action; or

        • (ii) If so named, was not served with the notice of proceeding and has not entered an appearance—

        may, within that fixed time after entering an appearance, apply on notice for the order to be set aside:

      • (b) The application must be supported by an affidavit or affidavits showing that the defendant in question has a bona fide claim against the plaintiff concerning the casualty in question and that the defendant has sufficient prima facie grounds for the contention that the plaintiff is not entitled to the relief given to the plaintiff by the order:

      • (c) At least 7 clear days before the hearing of the motion, the application and every affidavit in support of the application must be served on the plaintiff and on any defendant who has entered an appearance:

      • (d) On the hearing of the application, the Court, if satisfied that the defendant in question has a bona fide claim against the plaintiff and sufficient prima facie grounds for the contention that the plaintiff is not entitled to the relief given to the plaintiff by the order, must set the order aside and give such direction as to the further proceedings in the action as appear appropriate.

      (11) Any order limiting the plaintiff s liability may make any provision authorised by section 89 of the Maritime Transport Act 1994.

      Compare: SR 1975/85, r 31

    Miscellaneous provisions

    793 Inspection of ship, etc
    • Without limiting its powers under these rules, the Court may, on the application of any party, make an order for the inspection by a Court expert, or by any party or witness, of any ship or other property, whether real or personal, if the inspection is necessary or desirable for the purpose of obtaining full information or evidence in connection with any issue in the action.

      Compare: SR 1975/85, r 35

    794 Consent orders
    • Any agreement in writing, between the parties to a cause or matter, that is dated and signed by the parties or their solicitors may be filed if the Registrar thinks it is reasonable to file the agreement and thinks that a Judge would under the circumstances have allowed it to be filed, and, on its filing, the agreement becomes an order of the Court.

      Compare: SR 1975/85, r 36

    795 Registrar may seek Court's assistance and parties may seek review of Registrar's decision
    • (1) The Registrar may apply to the Court for orders to assist the Registrar in the performance or exercise of any function, duty, right, or power conferred or imposed on the Registrar by this Part, and the Court may make such orders in relation to the performance or exercise of that function, duty, right, or power as the Court thinks fit.

      (2) Any party to a proceeding who is affected by a decision of the Registrar under this Part may apply by interlocutory application to review that decision, and the Court may make such order as it thinks just.

17 New forms inserted
  • Schedule 1 of the High Court Rules is amended by inserting, in their appropriate numeral order, the forms set out in the Schedule of these rules.

18 Consequential amendments to forms
  • Schedule 1 of the High Court Rules is consequentially amended by omitting from forms 6, 7, 8, 13, 49, and 64C the expression 9.30 am to 4 pm wherever it appears, and substituting in each case the expression 8.30 am to 5 pm.

19 Revocations
  • The following rules are revoked:

    • (a) The Admiralty Rules 1975 (SR 1975/85):

    • (b) The Admiralty Rules 1975, Amendment No 1 (SR 1975/293):

    • (c) The Admiralty Rules 1975, Amendment No 2 (SR 1987/170):

    • (d) The Admiralty Rules 1975, Amendment No 3 (SR 1991/177):

    • (f) Rule 19 of the High Court Amendment Rules (No 2) 1988:


Schedule
New forms 66 to 82 inserted in Schedule 1 of High Court Rules

Rule 17

Form 66
General heading for action in personam

Rule 770(2)

In the High Court of New Zealand

 In Admiralty 
 ....... Registry No AD ....... / .......
 Between[Insert name of plaintiff]
  Plaintiff
 And[Insert name of defendant]
  Defendant

Form 67
Notice of proceeding in personam

Rule 770(1)

[General heading as in form 66]
.

To [Insert name of defendant(s)]. 1. Unless, within 14 days after the service of this notice of proceeding on you (which period begins on the day after the day of service), you cause an appearance to be entered for you in the office of this Court at [State place], the plaintiff may proceed in the plaintiff's action without having it heard in Court and judgment may be given in your absence. 2. The trial of the action, if a trial is necessary, will take place at the Court at [State place] at a time to be fixed by the Court. 3. The plaintiff claims the sum of $[Insert sum] for [Specify]. The plaintiff also claims the sum of $[Insert sum] for the costs of and incidental to service of this notice of proceeding. 4. This notice of proceeding was issued by [Insert full name] appearing in person. My address for service is at [Insert address]. OR This notice of proceeding was issued by [Insert full name], solicitor for the above named plaintiff(s). My firm is [Insert name] of [Insert address]. My address for service is at [Insert address*]. *Where the plaintiff's solicitor is acting by an agent, the name and address of the agent should be shown as well as the name, firm, and address of the principal. Given under the seal of the High Court of New Zealand at [State place] on ........... 19 . (Deputy) Registrar. [Note: This notice of proceeding must be served within 12 months after the date of the notice of proceeding, or within 6 months after the date of renewal, if renewed.]

.

Directions for Entering an Appearance 1. You may enter an appearance either personally (if suing in person) or by a solicitor at the office of the Court mentioned in the notice of proceeding, by filing a memorandum of appearance (in duplicate) in that office or by posting the memorandum (in duplicate) to the Registrar at that office. The appropriate form may be obtained at any office of the High Court. 2. If the last day for entering your appearance falls on a Saturday, a Sunday, or a holiday, you may file the memorandum of appearance on the day next following that Saturday, Sunday, or holiday, as the case may be, which is not a holiday. 3. In calculating the time for filing the memorandum, you must disregard the period which commences with 20 December and ends with 20 January. [This paragraph must be deleted if it conflicts with a direction given by the Court or a Judge.]

Form 68
General heading for action in rem

Rule 771(2)

.

In the High Court of New Zealand In Admiralty Registry No AD / Admiralty Action in Rem: Between[See note 1] Plaintiff(s) And[See note 2] Defendant(s) Notes 1. Insert name of plaintiff(s), eg, The owners of the Ship X. 2. Insert name of defendant(s), eg, The Ship Y (or The Ship Y and its freight or The Ship Y and its cargo and freight or The cargo ex the Ship Y or The proceeds of the Ship Y or The proceeds of the cargo ex the Ship Y).

Form 69
Notice of proceeding in rem

Rule 771(1)

[General heading as in form 68]
.

To the owners and all others interested in the [Insert name of ship or describe property]. 1. Unless, within 14 days after the service of this notice of proceeding on you (which period begins on the day after the day of service), you cause an appearance to be entered for you in the office of this Court at [State place], the plaintiff may proceed in the plaintiff's action without having it heard in Court, and judgment may be given in your absence, and, if the thing described in this notice of proceeding is then under arrest of the Court, it may be sold by order of the Court. 2. The trial of the action, if a trial is necessary, will take place at the Court at [State place] at a time to be fixed by the Court. 3. The plaintiff claims the sum of $[Insert sum] for [Specify]. The plaintiff also claims the sum of $[Insert sum] for the costs of and incidental to service of this notice of proceeding. 4. This notice of proceeding was issued by [Insert full name] appearing in person. My address for service is at [Insert address]. OR This notice of proceeding was issued by [Insert full name], solicitor for the above named plaintiff(s). My firm is [Insert name] of [Insert address]. My address for service is at [Insert address*]. *Where the plaintiff's solicitor is acting by an agent, the name and address of the agent should be shown as well as the name, firm, and address of the principal. Given under the seal of the High Court of New Zealand at [State place] on ............ 19 . (Deputy) Registrar. [Note: This notice of proceeding must be served within 12 months after the date of the notice of proceeding, or within 6 months after the date of renewal, if renewed.]

.

Directions for Entering an Appearance 1. You may enter an appearance either personally (if suing in person) or by a solicitor at the office of the Court mentioned in the notice of proceeding, by filing a memorandum of appearance (in duplicate) in that office or by posting the memorandum (in duplicate) to the Registrar at the office. The appropriate form may be obtained at any office of the High Court. 2. The appearance must state the name and true address of the party appearing and the capacity in which that party appears, whether as owner or part owner or otherwise, and must also state the port of registry or port to which the ship belongs. Those statements are prima facie evidence of the matters stated in them. 3. If the last day for entering your appearance falls on a Saturday, a Sunday, or a holiday, you may file the memorandum of appearance on the day next following that Saturday, Sunday, or holiday, as the case may be, which is not a holiday. 4. In calculating the time for filing the memorandum, you must disregard the period which commences with 20 December and ends with 20 January. [This paragraph must be deleted if it conflicts with a direction given by the Court or a Judge.]

Form 70
Notice of proceeding both in rem and in personam

Rule 771(6)

[General heading as in form 66]
.

To the owners and all others interested in the [Insert name of ship or describe property]. And to the abovenamed second defendant. 1. Unless, within 14 days after the service of this notice of proceeding on you (which period begins on the day after the day of service), you cause an appearance to be entered for you in the office of this Court at [State place], the plaintiff may proceed in the plaintiff's action without having it heard in Court, and judgment may be given in your absence, and, if the thing described in this notice of proceeding is then under arrest of the Court, it may be sold by order of the Court. 2. The trial of the action, if a trial is necessary, will take place at the Court at [State place] at a time to be fixed by the Court. 3. This notice of proceeding was issued by [Insert full name] appearing in person. My address for service is at [Insert address]. OR This notice of proceeding was issued by [Insert full name], solicitor for the above named plaintiff(s). My firm is [Insert name] of [Insert address]. My address for service is at [Insert address*]. *Where the plaintiff's solicitor is acting by an agent, the name and address of the agent should be shown as well as the name, firm, and address of the principal. Given under the seal of the High Court of New Zealand at [State place] on .......... 19 . (Deputy) Registrar [Note: This notice of proceeding must be served within 12 months after the date of the notice of proceeding, or within 6 months after the date of renewal, if renewed.]

.

Directions for Entering an Appearance 1. You may enter an appearance either personally (if suing in person) or by a solicitor at the office of the Court mentioned in the notice of proceeding, by filing a memorandum of appearance (in duplicate) in that office or by posting the memorandum (in duplicate) to the Registrar at the office. The appropriate form may be obtained at any office of the High Court. 2. If you are entering an appearance for the ship [Insert name of ship or describe property], the appearance must state the name and true address of the party appearing and the capacity in which that party appears, whether as owner or part owner or otherwise, and must also state the port of registry or port to which the ship belongs. Those statements are prima facie evidence of the matters stated in them. 3. If the last day for entering your appearance falls on a Saturday, a Sunday, or a holiday, you may file the memorandum of appearance on the day next following that Saturday, Sunday, or holiday, as the case may be, which is not a holiday. 4. In calculating the time for filing the memorandum, you must disregard the period which commences with 20 December and ends with 20 January. [This paragraph must be deleted if it conflicts with a direction given by the Court or a Judge.] Endorsements to be made on notice of proceeding before issue The plaintiff claims against the [Insert name of ship or describe property] under sections [Specify] of the Admiralty Act 1973. [Insert summary of claim and amount.] The plaintiff claims against the second defendant under [Insert summary of claim and amount]. The plaintiff also claims against the [Insert name of ship or describe property] and against the second defendant the sum of $[Insert sum] for the costs of and incidental to service of this notice of proceeding.

Form 71
Memorandum of appearance

Rule 773(1)

[General heading as in form 66 or form 68, as the case requires]
.

Please enter an appearance for [See notes 1-3] in this action. This appearance is filed by [Insert full name] appearing in person. My address for service is at [Insert address]. Dated this ....... day of ....... 19 . (Signed (party or solicitor)) Directions 1. If the last day for entering an appearance falls on a Saturday, a Sunday, or a holiday, the memorandum of appearance may be filed on the day next following that Saturday, Sunday, or holiday, as the case may be, which is not a holiday. 2. Subject to any direction by the Court or a Judge, in calculating the time for filing the memorandum, you must disregard the period commencing with 20 December and ending with 20 January. Notes 1. Enter the name of defendant, defendant's occupation, and place of residence or business. In an action in rem, the appearance must state the name and true address of the party appearing and the capacity in which that party appears, whether as owner or part owner or otherwise, and must also state the port of registry or port to which the ship belongs. Those statements are prima facie evidence of the matters stated in them (See rule 773(11)). 2. If the appearance is to a counterclaim, it should state accordingly and the heading to the memorandum should contain the double title of claim and counterclaim. If the appearance is by an added defendant or a third party or an intervener, the memorandum should contain brief particulars of the order or notice served on the party entering the appearance. 3. If the appearance is filed by a solicitor who has another solicitor acting as that solicitor's agent at the place of filing, the name and address of the agent or the agent's firm should be added to the name and address of the principal or the principal's firm. If the appearance is conditional, add the words This appearance has effect as an unconditional appearance unless within 10 days after the filing of the appearance application is made to set aside the notice of proceeding or service of the notice of proceeding and an order is made accordingly (See rule 773(6)).

Form 72
Application for warrant of arrest

Rule 776(1)

[General heading as in form 68]
.

1. The plaintiff applies for a warrant for the arrest of [Insert name of ship or describe property]. 2. The present location of the property to be arrested is [Specify location]. 3. This application is accompanied by the affidavit(s) of [Insert names of deponents] deposing to the matters referred to in Part 14 of the High Court Rules, and an indemnity to the Registrar. Dated this ....... day of ...... 19 . (Solicitor for) Plaintiff. To the Registrar of the High Court at [State place]. Certificate of Registrar I certify that according to the records of the Court— (a) A notice of proceeding in an action in rem has been issued against [Insert name of ship or describe property to be arrested]. (b) That on [Insert date] I made inquiries from the Central Registry and ascertained that [State result of inquiries]. (c) This application was filed at [Insert time and date]. Dated this .......... day of ........... 19 . (Deputy) Registrar.

Form 73
Indemnity to registrar

Rule 776(4)(b)

[General heading as in form 68]
.

To The Registrar of the High Court at [State place]. The applicant indemnifies you— (a) For any fees and expenses (including harbour dues) that may be incurred by you in the execution of the warrant of arrest issued against [Specify]; and (b) Against any liability arising out of or incidental to any act lawfully done by you in executing that warrant. Dated this .......... day of .......... 19 . (Solicitor for) Applicant.

Form 74
Warrant of arrest

Rule 776(7)

[General heading as in form 68]
.

To the Registrar of the High Court at [State place] and to the Registrar's appointed officers or agents. You are directed to arrest the [Insert name of ship or describe property] and keep it under safe arrest until you receive further orders from the Court. Dated this .......... day of .......... 19 . (Deputy) Registrar. This Warrant of Arrest is taken out by [Insert name of solicitor], solicitor for [Insert name of party]. Registrar's endorsement as to service This warrant was executed by [Insert name of person executing the warrant] at [Insert time and date]. (Deputy) Registrar.

Form 75
Notice by registrar of arrest of property

Rule 776(15)

[General heading as in form 68]
.

[Insert name of ship or describe property] 1. The ship named (or property described) above is in custody or possession of the Registrar of the High Court of New Zealand by virtue of a warrant from this Court. 2. All persons are cautioned not to attempt to remove the property or interfere with it without the written authority of the Registrar, or of the Registrar's officers or agents, otherwise they will be in contempt of Court. Given under the seal of the High Court of New Zealand at [State place] on .......... 19 .

Form 76
Request for caveat against arrest

Rule 777(1)

[NB No general heading]
.

[Insert name of ship or describe property] 1. I request a caveat be entered against the arrest of the ship named (or property described) above. 2. I undertake to enter an appearance in any action that may be begun against it in the Court. 3. I undertake, within 3 days after receiving notice of an action in the Court concerning the arrested property, to give security to the satisfaction of the Registrar in a sum not exceeding $ [Insert sum] or to pay that sum into Court. 4. My address for service is at [Insert address]. Given under the seal of the High Court of New Zealand at [State place] on .......... 19 . (Solicitor for) Applicant.

Form 77
Release from arrest

Rule 778(1)

[General heading as in form 68]
.

To the Registrar of the High Court of New Zealand at [State place] and the Registrar's appointed officers and agents. 1. The [Insert name of ship or describe property] has been held under arrest in accordance with a warrant of arrest issued at [Insert place and date]. 2. You are now directed to release the arrested property. 3. The ground for release is [Specify ground, eg Court order, payment into Court, etc] Given under my hand (*or Given under the seal of the High Court of New Zealand) at [Insert place and date]. Registrar. *If the release is under an order of the Court, it must be issued under the seal of the Court

Form 78
Bail bond

Rule 778(5)

[Heading as in action]
.

1. An action in rem against the [Insert name of ship or describe property] is pending in this Court and the parties to the action are [Insert names]. 2. I (or We) submit to the jurisdiction of the Court. 3. If the defendant does not satisfy any judgment in this proceeding or does not pay any sum due to be paid by the defendant under any admission of liability in this action or under any settlement agreement which is filed in this Court, then execution may issue against me (or us), my (or our) executors or administrators or assigns, and my (or our) goods and chattels, and the goods and chattels of my (or our) executors, administrators, or assigns, for a sum not exceeding $[Insert sum]. The Common Seal etc, or This bond was signed by (Sureties) at .......... this .......... day of .......... 19 before me A Solicitor of the High Court of New Zealand (or A Registrar of the High Court of New Zealand) (or A Notary Public).

Form 79
Request for caveat against release and payment

Rule 779(1)

[NB No general heading]
.

[Insert name of ship or describe property] I request a caveat be entered against— (a) The issue of a release for the arrested property; and (b) Payment out of Court of the proceeds of sale (if the Court should order that the arrested property be sold). Dated this .......... day of .......... 19 . [Signed].

Form 80
Request for commission for appraisement and sale

Rule 784(4)

[General heading as in form 68]
.

I (or We) request a commission for the appraisement and sale of [Insert name of ship or describe property] which was ordered by the Court on [Insert date]. Dated this .......... day of .......... 19 . [Signed].

Form 81
Commission for appraisement and sale

Rule 784(5)

[Heading as in action]
.

To the Registrar of the High Court at [State place] and to the Registrar's appointed officers and agents. 1. The Court has ordered that the [Insert name of ship or describe property] be appraised and sold. 2. You are directed to choose one or more experienced persons and to swear them to appraise the property according to its true value. 3. You are also directed that, once that value has been certified in writing by the appraiser or appraisers, you are to cause the property to be sold by [Specify whether sale to be by way of private treaty or public auction] for the highest price that can be obtained for it, but not for less than the appraised value unless the Court on your application allows it to be sold for less. 4. You are further directed that, immediately on the sale being completed, you are to pay the proceeds of the sale into Court and to file in the Court the certificate of appraisement signed by you and the appraiser or appraisers, and an account of the sale signed by you, together with this commission. Dated this .......... day of .......... 19 . (Deputy) Registrar This Commission is taken out by [Insert name], solicitor for the [Specify party].

Form 82
Notice for priority of claims on sale of ship

Rule 791(2)(c)

[General heading as in form 68]
.

1. The [Insert name of ship or describe property] has been sold and the gross proceeds of such sale, amounting to $[Insert sum] have been paid into Court at [State place]. 2. The priority of the claims against the proceeds of sale will not be determined until after [Insert date of expiry of period specified in the order for sale]. 3. Any person having a claim against the ship or the proceeds of sale of the ship on which that person intends to proceed to judgment should commence an action to enforce that claim before the date specified in paragraph 2 and, if necessary, apply to the Court to extend the period within which the order of priority of claims will not be determined. 4. If the steps referred to in paragraph 3 are not taken, an order determining the priority of claims against the ship or the proceeds of sale of the ship may be made without notice to the person claiming against the ship or the proceeds of sale of the ship. Dated this .......... day of ........... 19 . (Deputy) Registrar.

MARIE SHROFF,

Clerk of the Executive Council.

Explanatory note

This note is not part of the rules, but is intended to indicate their general effect.

These rules, which come into force on 1 February 1998, amend the High Court Rules.

Rule 2 amends rule 22 to update the opening hours of the Court. Rule 22 requires courts to be open from 9.30 am to 4 pm but the actual opening hours are presently 8.30 am to 5 pm.

Rules 3, 4, 5, 12, and 13 amend rules to remove the words cause or matter. The appropriate term is proceeding or interlocutory application.

Rule 6 inserts new rule 383A, which provides for arbitration by consent during the course of a proceeding. The new rule is based on a recommendation in the Law Commission's Report on Arbitration (Report No 20, 1991).

Rule 7 amends rule 437 by providing for mediation or some other form of alternative dispute resolution to be ordered by consent before a proceeding is set down for trial.

Rule 8 amends rule 438 by providing for mediation or some other form of alternative dispute resolution to be ordered by consent during the course of a trial.

Rule 9 repositions old rule 724J and makes it a rule of general application. The new rule is inserted into Part III as rule 438A and provides for the appointment of counsel assisting the Court.

Rule 10 provides for judicial settlement conferences to be held by consent during a trial.

Rule 11 relates to the taking of affidavits. The rule replaces rule 521, with 3 main changes—

  • the power of Justices of the Peace to take affidavits in New Zealand is extended, by abolishing the 8 km rule in rule 521

  • barristers are authorised to take affidavits, provided they hold an appropriate practising certificate

  • partners in, or solicitors employed or engaged by, the same firm as the solicitor of a party to the proceeding are prohibited from taking affidavits in contentious proceedings.

Rule 14 deals with extraordinary remedies. The new rules substituted by rule 14

  • remove definitions of the content of the writs

  • remove references to tribunals being constituted by or under any Act

  • remove references to the duty to act judicially.

Rule 15 replaces rule 706 and relates to the content of a notice of appeal. The changes introduced by the new rule are—

  • the notice of appeal must have a heading in form 1 and refer to the Act under which the appeal is brought

  • the notice of appeal must not name the decision-maker as a respondent.

Rule 16 adds new Part 14, which replaces the Admiralty Rules 1975. The main changes are—

  • the writ of summons is replaced with a notice of proceeding

  • rule 769(4) provides that an action is commenced when the notice of proceeding is filed

  • rule 770(3) applies rules 219 to 227 where an action in personam has to be served outside New Zealand

  • rule 771(6) requires the use of a new form where the proceeding is both in rem and in personam

  • rule 772 dispenses with the former service requirement that a notice of proceeding be attached to the property for a short time

  • rule 773(6) allows a conditional appearance to be entered as of right

  • rule 774(2)(a) requires a statement of claim to be full and explicit

  • rule 775(2) requires the long vacation to be disregarded for the purposes of calculating the time limit for serving a statement of defence

  • the old rule 14, which provided for trial without pleadings, has not been carried over

  • rule 776(5) provides for the review of securities given to Registrars in support of applications or warrants for arrest

  • rule 781 simplifies the rule about the giving of securities in admiralty proceedings and, in particular, it provides for the Court to determine such matters and requires a person who gives a security to submit to the Court's jurisdiction if the person is not ordinarily resident in New Zealand

  • rule 787 applies rules 459 to 470 to judgment by default in proceedings in personam

  • the former rule 32, which provided for the consolidation of proceedings, has not been carried over and that subject is now covered by rule 382

  • the former rule 33, which provided for the appointment of Court experts, has not been carried over and that subject is now covered by rules 324 to 330

  • the former rule 37, which related to costs in admiralty proceedings, has not been carried over

  • rule 795 provides for Registrars to seek assistance from the Court and provides for the review of decisions of Registrars.

Rule 17 adds new admiralty forms to the First Schedule.

Rule 18 consequentially amends forms 6, 7, 8, 13, 49, and 64C to update the reference in them to the opening hours of the Court.

Rule 19 contains consequential revocations.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 11 December 1997.