District Courts Rules 2014

Reprint as at 18 October 2016

Coat of Arms of New Zealand

District Courts Rules 2014

(LI 2014/179)

Jerry Mateparae, Governor-General

Order in Council

At Wellington this 26th day of May 2014

Present:
His Excellency the Governor-General in Council

Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

These rules are administered by the Ministry of Justice.

Pursuant to section 122 of the District Courts Act 1947, section 11 of the Admiralty Act 1973, section 16 of the Arbitration Act 1996, section 42 of the Harassment Act 1997, section 81 of the Construction Contracts Act 2002, and section 213 of the Local Government Act 2002, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, and (in relation to the jurisdiction conferred by the District Courts Act 1947, the Admiralty Act 1973, or the Construction Contracts Act 2002), with the concurrence of the Chief District Court Judge and at least 2 members of the Rules Committee established under section 51B of the Judicature Act 1908 (of whom at least 1 was a District Court Judge), makes the following rules.

Contents

1.1Title
1.2Commencement
1.3Objective
1.4Interpretation
1.5Application of rules
1.6Transitional and savings provisions
1.7Application issues
1.8Non-compliance with rules
1.9Directions as to conduct of proceedings
1.10Security
1.11Cases not provided for
1.12Amendment of defects and errors
1.13Oral applications for relief
1.14Consent instead of leave of court
1.15Speaking in Māori
1.16Translation of documents into te reo Māori
1.17Failure to give notice
1.18Translation may be ordered by court
1.19Affidavit in language other than English
1.20Sign language
1.21Calculating periods of time
1.22When time expires when court registry is closed
1.23Extending and shortening time
1.24Lawyers’ duties
1.25Variation of forms
1.26Communication with foreign court
2.1Court holidays
2.2Sittings on court holidays
2.3Closing or opening by special order
2.4Registry hours
2.5Epidemics and emergencies
2.6Filing by post
2.7Registrars’ jurisdiction and powers relating to interlocutory applications
2.8Limits on jurisdiction
2.9Powers ancillary to jurisdiction
2.10Jurisdiction in other registries
2.11Form of order
2.12Review of Registrar’s decision
2.13Application for order
2.14Powers of court in relation to application
2.15Disposal of securities and income
3.1Interpretation
3.2Application
3.3General right of access to formal court record
3.4Right of parties to access court file or documents
3.5Access to documents during substantive hearing stage
3.6Meaning of relevant deadline in rule 3.5
3.7Access to court files, documents, and formal court record in other cases
3.8Restrictions on access
3.9Applications for permission to access documents, court file, or formal court record other than at hearing stage
3.10Decisions on applications under rule 3.9
3.11Review of decisions by Registrar
3.12Matters to be taken into account
4.1Limit on parties
4.2Plaintiffs
4.3Defendants
4.4Third parties
4.5Fourth parties
4.6Subsequent parties
4.7Status of third, fourth, and subsequent parties
4.8Court’s power and discretion
4.9Application of third party notice rules to fourth and subsequent party notices
4.10Requirements of third party notice
4.11Filing of third party notice
4.12Service on third party
4.13Service on plaintiff
4.14Filing and service of statement of defence
4.15Service of application for leave
4.16Setting aside third party notice
4.17Default in filing statement of defence
4.18Right to give notice
4.19Statement of claim to be filed and served
4.20Statement of defence
4.21Form of notice
4.22Effect of omission to give notice
4.23Trustees, executors, and administrators
4.24Persons having same interest
4.25Partners
4.26Person trading as firm
4.27Representation by other persons
4.28Relators
4.29Incapacitated person, litigation guardian, and minor defined
4.30Incapacitated person must be represented by litigation guardian
4.31Minor must be represented by litigation guardian
4.32Minor may apply to conduct proceeding without litigation guardian
4.33Application of rules 4.34 to 4.46 to minors
4.34Court may set aside step in proceeding
4.35Appointment of litigation guardian
4.36Application to be served on person for whom litigation guardian is to be appointed
4.37Notification of appointment
4.38Powers of litigation guardian
4.39Heading on documents when incapacitated person is represented
4.40Service of documents
4.41Representation to be disregarded in making award of costs
4.42Award of costs enforceable against incapacitated person or litigation guardian
4.43Liability of former litigation guardian for costs subsequently awarded against incapacitated person
4.44Compliance with liability order
4.45Litigation guardian may be reimbursed for costs out of property of incapacitated person
4.46Retirement, removal, or death of litigation guardian
4.47Procedure when person ceases to be incapacitated person
4.48Procedure when minor attains full age
4.49Proceeding not to come to end
4.50Procedure on death, bankruptcy, and devolution
4.51Devolution when proceeding pending
4.52New parties order
4.53Discharge or variation of new parties order
4.54Change of name
4.55Parties wrongly joined
4.56Striking out and adding parties
4.57Interpretation
4.58Right to interplead
4.59Form of application
4.60Affidavit in support
4.61Time for applying
4.62Claimants to file affidavits
4.63Powers of court
4.64Costs of applicant
5.1How to determine proper registry
5.2Transfer under section 43 of Act
5.3Papers to be forwarded to High Court
5.4Transfer under section 46 of Act
5.5Non-complying documents
5.6Paper
5.7Contents to be typed, etc
5.8Margin
5.9Signature to be original
5.10Cover sheet, numbering, and fastening of document
5.11Description of document
5.12Heading generally
5.13Format of cover sheet
5.14Heading on statement of claim and counterclaim
5.15Heading on judgment and certain orders
5.16Heading on other documents
5.17Division into paragraphs
5.18Numbers
5.19Information at foot of cover sheet
5.20Distinct matters to be stated separately
5.21Denial of representative character
5.22Denial of contract
5.23Effect of document to be stated
5.24Notice requiring further particulars or more explicit pleading
5.25Notice of proceeding to be filed with statement of claim
5.26Requirements as to notice of proceeding
5.27When not necessary to file notice of proceeding
5.28Proceeding commenced by filing statement of claim
5.29Statement of claim to show nature of claim
5.30Statement of claim to specify relief sought
5.31Inclusion of several causes of action
5.32Joint plaintiffs
5.33Representative capacity of party
5.34Specifying relief sought
5.35Amount of money claim
5.36Special damages
5.37Set-off
5.38Authority to file documents
5.39Authority of certain Australian solicitors in certain trans-Tasman proceedings
5.40Solicitor’s warranty as to authorisation to file documents
5.41Solicitor on record
5.42Authority to sign documents
5.43Change of representation or address for service
5.44Withdrawal of solicitor who has ceased to act for party
5.45Address for service of party whose solicitor has ceased to act
5.46Solicitors to inform clients of orders or directions
5.47Memorandum at end of first document filed by party
5.48Power to make order for security for costs
5.49Filing and service of statement of defence
5.50Requirements of statement of defence
5.51Appearance and objection to jurisdiction
5.52Appearance for ancillary purposes
5.53Appearance reserving rights
5.54Forms
5.55Counterclaim against plaintiff only
5.56Heading of counterclaim
5.57Filing and service
5.58Defence to counterclaim
5.59Counterclaim against plaintiff and another person
5.60Place of trial of counterclaim
5.61Status of counterclaim if proceeding stayed
5.62Counterclaim by counterclaim defendant
5.63Restriction when the Crown involved
5.64Duty to file and serve reply
5.65Contents of reply
5.66Service generally
5.67Personal service required
5.68Prompt service required
5.69Extension of time for service
5.70Notice of service to Registrar
6.1Methods of service
6.2Service of copies
6.3Notices
6.4Personal service on spouses or partners
6.5Service at address for service
6.6Service by means of post office box, document exchange, fax, or email
6.7Service under agreement
6.8Substituted service
6.9Notices to be given by Registrar
6.10Proof of service
6.11Personal service
6.12Personal service on New Zealand corporations
6.13Personal service in New Zealand on foreign corporations
6.14Personal service on Australian corporations, partnerships, and attorneys
6.15Personal service in Australia on foreign corporations
6.16Personal service on unincorporated societies
6.17Personal service on partnership or apparent partnership
6.18Personal service on attorney or agent of absentee
6.19Service on representatives
6.20Service on solicitor
6.21Service of statement of claim on certain days void
6.22Failure to give address for service
6.23When allowed without leave
6.24When allowed with leave
6.25Court’s discretion whether to assume jurisdiction
6.26Service of other documents outside New Zealand
6.27Notice to defendant served outside New Zealand
6.28Service outside New Zealand
6.29Service through official channels
6.30Service in convention countries
6.31Time for filing defence
6.32Subpart does not apply to service in Australia of documents for or in certain trans-Tasman proceedings
7.1Proceedings subject of case management
7.2First case management conference
7.3Judicial settlement conference
7.4Second case management conference
7.5Additional case management conferences
7.6Steps after close of pleadings date restricted
7.7Cancellation of case management conference
7.8Limitation of right of appeal
7.9Timetable and monitoring obligations
7.10Lists of proceedings
7.11Registrar’s functions in relation to hearing dates
7.12Contents, form, and filing of interlocutory application
7.13Affidavit to be filed with application
7.14Filing by post
7.15Service of application and supporting affidavit
7.16Application without notice
7.17Notice of opposition to application
7.18Affidavit to be filed with notice of opposition
7.19Affidavit in reply
7.20Evidence normally given by affidavit
7.21Cross-examination of maker of affidavit
7.22Rules governing affidavits
7.23Statements of belief in affidavits
7.24When admissions binding
7.25Previous affidavits and agreed statements of fact
7.26Allocation of hearing date
7.27Mode of hearing
7.28Publication about hearing in chambers
7.29Application for summary judgment to be heard in open court
7.30No hearing required if respondents consent or do not oppose
7.31Respondent who consents, or who does not oppose, need not attend hearing
7.32Synopsis of argument
7.33Failure to attend
7.34Certain applications may be made orally at hearing
7.35Adjournment
7.36Making of interlocutory orders
7.37Power to grant interlocutory order or interlocutory relief
7.38Interlocutory orders may be made subject to conditions
7.39Determination of application without notice
7.40Drawing up and sealing interlocutory order
7.41Enforcement of interlocutory order
7.42Order relating to management of proceeding may be varied if circumstances change
7.43Order may be rescinded if fraudulently or improperly obtained
7.44Limitation as to second interlocutory application
7.45Application for injunction
7.46Undertaking as to damages
7.47Preservation of property
7.48Sale of perishable property before hearing
7.49Order to transfer part of property to person with interest in property
7.50Interim payment of income to person with interest in income
7.51Application
7.52Address for service
7.53Receiver must give security
7.54Remuneration of receiver
7.55Accounts of receiver
7.56Examination of accounts
7.57Default by receiver
7.58Powers of receiver
7.59Accounts on death of receiver
7.60Interpretation
7.61Application for interim payment
7.62Order for interim payment in respect of damages
7.63Order for interim payment in respect of sums other than damages
7.64Method of payment
7.65Directions on interim payment application
7.66Non-disclosure of interim payment
7.67Adjustment on final judgment or order or on discontinuance
7.68Counterclaims and other proceedings
7.69Filing of amended pleading
7.70Recovery of specific property subject to lien or other security
7.71Arbitration by consent
8.1Interpretation
8.2Co-operation
8.3Preservation of documents
8.4List of documents relied on
8.5Discovery orders to be made at second case management conferences
8.6Two kinds of discovery
8.7Standard discovery
8.8Tailored discovery
8.9Presumption as to tailored discovery
8.10Obligation of party ordered to make tailored discovery
8.11Preparation for second case management conference
8.12Orders that may be made
8.13Solicitor’s discovery obligations
8.14Extent of search
8.15Affidavit of documents
8.16Schedule appended to affidavit of documents
8.17Variation of discovery order
8.18Continuing obligations
8.19Order for particular discovery against party after proceeding commenced
8.20Order for particular discovery before proceeding commenced
8.21Order for particular discovery against non-party after proceeding commenced
8.22Costs of discovery
8.23Incorrect affidavit of documents to be amended
8.24Who may swear affidavit of documents
8.25Challenge to privilege or confidentiality claim
8.26Crown documents and public interest
8.27Inspection of documents
8.28Privilege and confidentiality
8.29Order facilitating inspection
8.30Use of documents
8.31Effect of failure to include document
8.32Notice to produce documents or things
8.33Contempt of court
8.34Interrogatories by notice
8.35Duties of party served
8.36Limitation of interrogatories by notice
8.37Multiple parties
8.38Order to answer
8.39Contents of statement
8.40Objection to answer
8.41Who may swear affidavit verifying statement in answer to interrogatories
8.42Insufficient answer
8.43Incorrect answer to be amended
8.44Answers as evidence
8.45Public interest
8.46Defamation proceedings
8.47Notice to admit facts
8.48Judgment on admission of facts
9.1Objective and scope
9.2Exchange of documents and index
9.3Timing
9.4Preparation of common bundle
9.5Consequences of incorporating document in common bundle
9.6Consequence of not incorporating document in common bundle
9.7Requirements in relation to briefs
9.8Supplementary briefs
9.9Exchange of chronology of facts intended to be relied upon at trial or hearing
9.10Oral evidence directions
9.11Compliance with Evidence Act 2006
9.12Evidence-in-chief at trial
9.13Briefs not given in evidence
9.14Privilege and admissibility not affected by briefs
9.15Cross-examination duties
9.16Plaintiff’s synopsis of opening
9.17Order for examination of witness or for letters of request
9.18Security for costs for taking evidence outside New Zealand
9.19Documents for examiner
9.20Procedure for examination before examiner
9.21Examination of additional persons
9.22Objection to question
9.23Form of report
9.24Depositions as evidence
9.25Order for inspection, etc
9.26Notice of application
9.27Appointment of court expert
9.28Submission of question to court expert
9.29Report of court expert
9.30Experiments and tests
9.31Cross-examination of court expert
9.32Remuneration of court expert
9.33Calling of expert witnesses
9.34Expert witness to comply with code of conduct
9.35Court may direct conference of expert witnesses
9.36Status of joint witness statement by expert witnesses
9.37Evidence of expert witnesses at trial
9.38Right to preserve evidence
9.39Procedures in which the Crown may have interest
9.40Examination of witness
9.41Subsequent admissibility
9.42Evidence to be given orally
9.43Issue of witness summonses
9.44Service of summons
9.45Evidence of person in custody
9.46Affidavit evidence by agreement
9.47Affidavit evidence under order of court
9.48Agreed statement of facts
9.49Interpretation
9.50Issue of subpoenas by District Court for service in Australia
9.51Leave to serve New Zealand subpoena on witness in Australia
9.52Service of subpoena on witness in Australia
9.53Application to set aside New Zealand subpoena
9.54Service of documents on applicant
9.55Hearing of application
9.56Failure to comply with subpoena
9.57Evidence and submissions by remote appearance medium from Australia
9.58Application of rules 9.59 to 9.64
9.59Time for filing plaintiff’s affidavits
9.60Time for filing defendant’s affidavits
9.61Time for filing affidavits in reply
9.62Use of affidavits
9.63Swearing of affidavits
9.64Cross-examination of person who has sworn affidavit
9.65Person refusing to make affidavit
9.66Form and contents of affidavits
9.67Exhibits to affidavits
9.68Interlineation, alteration, or erasure in affidavit
9.69Irregularity in form of affidavit
9.70Service copies of affidavits
9.71Affidavit may be sworn on Sunday
9.72Affidavits made on behalf of corporation
9.73Affidavit by 2 or more persons
9.74Affidavit by blind or illiterate person
9.75Authority to take affidavits in New Zealand
9.76Authority to take affidavits in places outside New Zealand
9.77Meaning of authenticated deposition
9.78Admissibility of authenticated deposition
9.79Application of other rules
10.1Criteria for mode of trial
10.2Mode of trial may be changed before trial
10.3Timetable for short trial
10.4Features of short trial
10.5Affidavits of evidence and copies of documents for simplified trial
10.6Witnesses at simplified trial
10.7Features of simplified trial
10.8Full procedure applies to full trial
10.9Venue and changing it
10.10Adjournment of trial
10.11Method of trial
10.12Court may order separate trials
10.13When neither party appears
10.14When only plaintiff appears
10.15When only defendant appears
10.16Judgment following non-appearance may be set aside
10.17When both parties appear
10.18When order may be made
10.19Application of rule 10.18
10.20Definition of question
10.21Orders for decision
10.22Agreed result
10.23Record, etc, of decision
10.24Disposal of proceeding if proceeding substantially affected by decision of question
10.25Form and contents of case
10.26Insufficient case or disputed facts or documents
10.27Counsel assisting
11.1Interpretation
11.2Types of judgment
11.3How judgment given
11.4Time judgment given
11.5Delivery time of written judgment
11.6Form and certificates of judgments
11.7Duplicate judgments
11.8Death or incapacity of Judge before judgment
11.9Recalling judgment
11.10Correction of accidental slip or omission
11.11Judgments to be sealed, dated, and served
11.12When judgment takes effect
11.13Steps before judgment sealed
11.14Registrar’s role on receipt of judgment
11.15Conduct of proceedings after judgment
11.16Applying for dismissal because of inactivity
11.17Judgment directing sale of property
11.18Judgment for balance of claim over counterclaim
11.19Judgment for balance of counterclaim
11.20Cross judgments
11.21Judgment if third party defends
11.22Interest on judgment debt
11.23Satisfaction of judgment
11.24Power to order retrial
11.25Application for retrial
12.1Application of summary judgment procedure
12.2Judgment when there is no defence or when no cause of action can succeed
12.3Summary judgment on liability
12.4Interlocutory application for summary judgment
12.5Service out of New Zealand
12.6Requirements as to notice of proceeding
12.7Time for service
12.8Postponement of hearing
12.9Notice of opposition and affidavit in answer
12.10Statement of defence
12.11Affidavits in reply
12.12Disposal of application
12.13Time for filing statement of defence on dismissal of plaintiff’s application
12.14Setting aside judgment
12.15Discontinuance
12.16Application to counterclaims and claims against third parties
13.1Interpretation
13.2Application of Part
13.3Defendants
13.4Affidavit in support
13.5Service
13.6Time for filing statement of defence
13.7Power of court to make unlawful occupiers defendants
13.8Judgment for possession
13.9Possession order
14.1Costs at discretion of court
14.2Principles applying to determination of costs
14.3Categorisation of proceedings
14.4Appropriate daily recovery rates
14.5Determination of reasonable time
14.6Increased costs and indemnity costs
14.7Refusal of, or reduction in, costs
14.8Costs in interlocutory applications
14.9Costs may be determined by different Judge
14.10Written offers without prejudice except as to costs
14.11Effect on costs
14.12Disbursements
14.13Joint and several liability for costs
14.14Defendants defending separately
14.15Claim and counterclaim both established
14.16Set-off if costs allowed to both parties
14.17Solicitor acting in person
14.18Proceeding transferred from High Court
14.19Enforcement of order for costs
15.1Dismissing or staying all or part of proceeding
15.2Dismissal for want of prosecution
15.3Application where appearance
15.4Affidavits to be filed
15.5When several causes of action
15.6When several defendants
15.7Liquidated demand
15.8Recovery of land or chattels
15.9Formal proof for other claims
15.10Judgment may be set aside or varied
15.11Overseas service cases
15.12Judgment on admission of facts
15.13Admission of cause of action
15.14Admission of defence
15.15Interpretation
15.16Right to discontinue proceeding
15.17Restrictions on right to discontinue proceeding
15.18Effect of discontinuance
15.19Court may set discontinuance aside
15.20Costs
15.21Restriction on subsequent proceedings
15.22Certain remedies not affected
16.1Interpretation
16.2Orders for accounts and inquiries
16.3Directions
16.4Summary order for accounts
16.5Mutual accounts
16.6Account-taker
16.7Direction as to evidence
16.8Remuneration of accountant
16.9Form and verification of account
16.10Filing and service of account
16.11Notice of receipt that is not admitted
16.12Notice of error
16.13Admission of items
16.14Appointment and notice for taking accounts
16.15Parties to attend account hearing
16.16Adjournment of account hearing
16.17Power of summary decision
16.18Examination of accounting party
16.19Production of documents
16.20Interest on debts of deceased person
16.21Accounting and estimates
16.22Directions for inquiries
16.23Powers of persons taking accounts or making inquiries
16.24Duty of persons summoned to attend
16.25Time for proving claims
16.26Statement of claim to be filed
16.27Failure to claim within time
16.28Result to be certified
16.29Party may ask for court’s decision
16.30Certificate or report when approved to be signed by Judge
16.31Effect of certificate or report when filed
16.32Distribution before all persons entitled are ascertained
16.33Payment of share carried over to separate trust account
16.34Report under section 62 or 62A of Act
16.35Abandonment of excess if more than $200,000 found due on taking of accounts
17.1Agreement not to appeal
17.2Leave to appeal
18.1Application of this Part
18.2Interpretation
18.3Judge may call conference and give directions
18.4Time for appeal if there is right of appeal
18.5Commencement of periods in rule 18.4
18.6When appeal brought
18.7Power to dispense with service
18.8Filing notice of appeal
18.9Contents of notice of appeal
18.10Stay of decision subject to appeal
18.11Cross-appeal
18.12Dismissal or stay or abandonment of appeal or cross-appeal
18.13Security for appeal
18.14Documents to be lodged with Registrar
18.15Order for transcript of evidence
18.16Report by decision-maker
18.17Further evidence
18.18Decision-maker entitled to be heard on appeal
18.19Appeal is rehearing
18.20Powers of court in relation to evidence heard on appeal
18.21Court has powers of decision-maker
18.22Counsel assisting court
18.23Appeals from decision arising from contested application
18.24Powers of court on appeal
18.25Dismissal of appeal
18.26Repayment of judgment sum and interest
18.27Registrar to notify decision of court
19.1Payment in reduction of amount
19.2Sale of personal property
19.3Examination of any party
19.4Application by judgment creditor of partner
19.5Application by partner of judgment debtor
19.6Change of parties after judgment
19.7Change of name, etc, of party after judgment
19.8Application to Registrar for suspension of judgment, etc
19.9Stay of judgment, etc
19.10Discharge of person under section 98 of Act
19.11Receipt to be attached to warrant
19.12Bailiff to enforce warrants, etc
19.13New order for payment of unsatisfied judgment
19.14Application for civil enforcement process
19.15Hearing in different place
19.16Non-appearance of judgment creditor or witness at assessment
19.17Record of assessment hearing
19.18Warrant of arrest
19.19Review of Registrar’s decision
19.20Contempt of enforcement proceedings
19.21Hearing of contempt of enforcement proceedings if judgment debtor at distance
19.22Certain fees, costs, and expenses incurred by judgment creditor may be recovered
19.23Interpretation
19.24Application for charging order
19.25Filing of application for charging order
19.26Value of property exceeding $200,000
19.27Charging order where amount involved small
19.28Form of charging order
19.29Application for relief by persons prejudicially affected
19.30Claim of third person on property charged
19.31Apportionment when more than 1 charging order
19.32Charging order final in first instance
19.33Registration of charging order under Land Transfer Act 1952
19.34Registration of charging order under Deeds Registration Act 1908
19.35Lodging of charging order under Crown Minerals Act 1991
19.36Sale before registration of charging order
19.37Discharge of land or mining privilege from charging order
19.38Charging order expires after 2 years
19.39Property other than land that may be charged
19.40Interim charging order
19.41Effect of interim charging order
19.42Liability for breach of interim charging order
19.43Money may be paid into court
19.44Application to make interim charging order final
19.45Costs of charging orders
19.46Removal of final charging order to High Court
19.47Application for warrant to seize property
19.48Order of priority
19.49Issue, duration, and renewal
19.50Enforcement against firm
19.51Concurrent warrants to seize property
19.52Costs of warrants to seize property
19.53Holding over enforcement and withdrawing from possession
19.54Reissue of warrant to seize property
19.55Possession fees
19.56Bailiff to make inventory
19.57Accounts of sale
19.58Bailiff to furnish statements to Registrar
19.59Court may order enforcement on returned warrant to seize property
19.60Application for private sale
19.61Warrant for recovery of chattels
19.62Warrant of committal
19.63Warrant to seize property for value of chattels and for damages, etc
19.64Where possession ordered to be taken until security given
19.65Warrant to recover land
19.66Judgment or order enforceable by committal
19.67Application for warrant of committal
19.68Discharge of person in custody
19.69Release on bail pending hearing of application for discharge from custody
19.70Interpretation
19.71Garnishee proceeding
19.72Where debt exceeds $200,000
19.73Starting proceeding
19.74Service and effect of service
19.75Statement to be filed by sub-debtor in respect of deposit or other accounts
19.76Payment into court by sub-debtor
19.77Payment out of court of money paid by sub-debtor
19.78Garnishee order where sub-debtor does not pay into court or appear
19.79Order in other cases
19.80Where debt stated to belong to third party
19.81Garnishee orders in respect of deposit and other accounts
19.82Discharge of sub-debtor as against judgment debtor
19.83Court may refuse order
19.84Where money due by sub-debtor under judgment or order
19.85Money in court
19.86Debts owing by firm
19.87Costs
19.88Garnishee proceeding against the Crown
19.89Notice of claim
19.90Notice to enforcement creditor
19.91Appraisement
19.92Admission of claim
19.93Order protecting bailiff
19.94Starting proceeding
19.95Service
19.96Security for costs where claimant does not reside in New Zealand
19.97Particulars and grounds of claim to be lodged
19.98Withdrawal or admission
19.99Claim for damages by claimant
19.100Claim for damages by enforcement creditor
19.101Payment into court where damages claimed
19.102Application for writ
19.103Form of writ, and procedure
19.104Costs where executor sues and fails
19.105Judgment and enforcement against executor or administrator
19.106Assets after judgment
19.107How documents may be sent
19.108Authentication of documents
20.1Types of proceedings
20.2Application of this Part to proceedings under Industrial and Provident Societies Act 1908
20.3This Part subject to rules under other Acts
20.4Commencement of proceedings
20.5Naming of defendants in cases involving deceased estates or trusts
20.6Persons served by direction of court need not be named as defendant
20.7Applications for directions as to service
20.8Orders giving directions as to service
20.9Proceeding without service
20.10Time for serving affidavit in support of appearance
20.11Statement of defence to be filed
20.12Evidence generally by agreed statement of facts or affidavit
20.13Application of this subpart
20.14Commencing proceedings
20.15Memorandum relating to filing and address for service
20.16Heading of documents
20.17Application of rules relating to interlocutory applications
20.18Directions as to parties and conduct of applications
20.19Evidence
20.20Cross-examination of person making affidavit
20.21Applications for directions as to service
20.22Application of subpart
20.23Interpretation
20.24Construction
20.25Procedure and practice
20.26Application of rules in other Parts
20.27Cases not provided for
20.28Forms
20.29Headings
20.30How to start proceedings
20.31Form of main application
20.32Documents accompanying main applications
20.33Supporting affidavits
20.34Number of copies to be filed
20.35Request that residential address be kept confidential
20.36Request that address of applicant’s solicitor be kept confidential
20.37Proper registry for filing main application
20.38Proceedings started in wrong court
20.39Procedure on filing main applications
20.40Requirement to file and serve notice of defence or address for service
20.41Consequences of failure to file and serve notice of defence
20.42Appointment of representative of certain minors
20.43Applications against minors
20.44Appointment of representative of person unable or unwilling to take proceeding
20.45Effect of minor turning 17, marrying, or entering into civil union
20.46Effect of ceasing to be unable or unwilling to take proceedings
20.47Personal service of applications
20.48Main applications served by Registrar
20.49Parties may not effect service
20.50Substituted service
20.51Power of Judge to call conference
20.52Orders and directions
20.53Amendment before service
20.54Transfer of proceeding
20.55Transfer of hearing
20.56Transfer with or without application
20.57Procedure on transfer of proceeding
20.58Procedure on transfer of hearing
20.59Form of restraining order
20.60Transfer of information to criminal court
20.61Interlocutory applications
20.62Applications for extending time used as delaying tactic
20.63Application of this subpart
20.64Interpretation
20.65Application of rules in other Parts
20.66Starting proceeding
20.67Application for removal order
20.68Procedure on applications for removal order
20.69Removal orders
20.70Service of removal order on respondent
20.71Service of removal order on other parties
20.72Mode of service of removal order
20.73Notice of objection
20.74Manner in which notice of objection to be dealt with
20.75Interlocutory applications
20.76Applications for extending time used as delaying tactic
20.77Notice where land entered to enforce removal order
20.78Application of this subpart
20.79Interpretation
20.80Application of other rules and practice of court
20.81Form of application for review
20.82Where to file application for review
20.83Procedure after filing of application for review
20.84Notice of opposition to application for review
20.85Adjudicator to forward documents relating to adjudication proceedings on request
20.86Application for adjudicator’s determination to be enforced
20.87Service
20.88Opposition to application for adjudicator’s determination to be enforced
20.89Application of this subpart
20.90Interpretation
20.91Application of other rules and practice of court
20.92Preliminary acts to be filed in collision cases
20.93Meaning of preliminary act
20.94Notice of filing of preliminary act to be served on other parties
20.95Registrar to seal and file preliminary acts
20.96Failure to lodge preliminary act
20.97Actions for limitation of liability
20.98Inspection of ship or other property
20.99Interpretation
20.100Entry of judgment where all parties agree
20.101Entry of judgment in other cases
20.102Application for entry of award as judgment
20.103Affidavit to be filed in support
20.104Service
20.105Entry as judgment without notice in exceptional circumstances
20.106Entry as judgment if defendant takes no steps
20.107Opposition to entry as judgment
21.1Proceedings on complaint of assault or rescue
21.2Misconduct or neglect of officers
21.3Witnesses and costs
21.4Non-attendance, etc, of witness
21.5Notice before imposing or enforcing fine
21.6Contempt of court
21.7Enforcement of fine
22.1Revocation
Gazette Information
Reprint notes

Rules

1.1 Title

These rules are the District Courts Rules 2014.

1.2 Commencement

These rules come into force on 1 July 2014.

Part 1 Rules of general application

Subpart 1—Objective and interpretation

1.3 Objective

The objective of these rules is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application.

Compare: HCR 1.2

1.4 Interpretation

(1)

In these rules, unless the context otherwise requires,—

Act means, except in Part 20, the District Courts Act 1947

address for service

(a)

in relation to a party or other person, means the address of a place in New Zealand at which a document may be left for that party or other person, or to which it may be sent by post to that party or other person, under these rules; but

(b)

in relation to a party who is a defendant (as defined in section 4(1) of the Trans-Tasman Proceedings Act 2010) who is served in Australia under section 13 of that Act with an initiating document for a proceeding, means the address of a place in New Zealand or Australia that, under section 18 of that Act, is or is to be treated as the defendant’s address for service for the proceeding

approved form, in relation to any matter, means a form approved for the purpose of the matter under the Act by the chief executive of the Ministry of Justice

chattels includes all things that are not land

civil proceedings, in relation to the Crown, has the same meaning as in section 2(1) of the Crown Proceedings Act 1950

court

(a)

means the District Court; and

(b)

includes a District Court Judge

court holiday means a day that is a holiday under rule 2.1

Crown has the same meaning as in section 2(2) of the Crown Proceedings Act 1950

defendant means a person served or intended to be served with a proceeding (other than a third or subsequent party served with a proceeding under these rules)

document means—

(a)

any material, whether or not it is signed or otherwise authenticated, that bears symbols (including words and figures), images, or sounds or from which symbols, images, or sounds can be derived, and includes—

(i)

a label, marking, or other writing that identifies or describes a thing of which it forms part, or to which it is attached:

(ii)

a book, map, plan, graph, or drawing:

(iii)

a photograph, film, or negative; and

(b)

information electronically recorded or stored, and information derived from that information

enforce, in relation to a judgment, means enforce or execute the judgment under Part 6 of the Act

to file, in relation to a document, means to lodge the document in the form required by these rules in, or to send it by post or electronically in accordance with these rules to, the proper registry (as determined under rule 5.1), together with the filing fee (if any) that is payable

full trial means a full trial held under Part 10 of these Rules

HCF means High Court form (as prescribed by Schedule 1 of the High Court Rules 2016)

HCR means High Court rule

High Court Rules means the High Court Rules 2016

incapacitated person has the same meaning as in rule 4.29

interlocutory application means application made in accordance with rule 1.15, 7.12, or 7.34

interlocutory order

(a)

means an order or a direction of the court that—

(i)

is made or given for the purposes of a proceeding or an intended proceeding; and

(ii)

concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading; and

(b)

includes—

(i)

an order for a new trial; and

(ii)

an order striking out the whole or part of a pleading; and

(iii)

an order varying or rescinding an interlocutory order

land includes any estate, right, title, or interest in land

lawyer has the same meaning as in section 6 of the Lawyers and Conveyancers Act 2006

litigation guardian has the same meaning as in rule 4.29

Māori means a person of the Māori race of New Zealand, and includes any descendant of that person

minor has the same meaning as in rule 4.29

nearer or nearest, in relation to any place, means nearer or nearest by the most practicable route

opposite party means, in relation to any party, any other party whose interests are opposed to those of that party

plaintiff means the person by whom or on whose behalf a proceeding is brought

pleading includes a statement of claim, a statement of defence, a reply, a counterclaim, and an originating application

proceeding means any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application

proper registry, in relation to a proceeding, means the registry determined under rule 5.1 for the purposes of the proceeding

Registrar includes a Deputy Registrar

registry includes an office of the court

short trial means a short trial held under Part 10 of these rules

simplified trial means a simplified trial held under Part 10 of these rules

unsuccessful judicial settlement conference means a judicial settlement conference at which the parties have been unable to settle the proceedings

will say statement, in relation to a witness, means a statement that records the essence of what the plaintiff or defendant (as the case may be) believes the witness will say at trial

working day means any day of the week other than—

(a)

Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and

(b)

a day in the period commencing with 25 December in any year and ending with 15 January in the following year; and

(c)

if Waitangi Day or Anzac Day falls on a Saturday or Sunday, the following Monday.

(2)

A word or an expression used in a rule or form in these rules and not defined in these rules but defined in an enactment dealing with the subject matter of that rule or form, unless the context otherwise requires, has the meaning given to it by that enactment.

(3)

In these rules, unless the context otherwise requires, a reference to a numbered form is a reference to the form so numbered in Schedule 2 of these rules.

(4)

In a judgment, order, direction, or other document forming part of a proceeding or of an interlocutory application, unless the context otherwise requires,—

month means a calendar month

working day has the same meaning as in subclause (1).

Compare: HCR 1.3; SR 2009/257 rr 1.8, 1.9

Rule 1.4(1) HCF: amended, on 18 October 2016, by section 183(c) of the Senior Courts Act 2016 (2016 No 48).

Rule 1.4(1) High Court Rules: amended, on 18 October 2016, by section 183(c) of the Senior Courts Act 2016 (2016 No 48).

Rule 1.4(1) working day paragraph (b): amended, on 1 January 2015, by rule 4(1) of the District Courts Amendment Rules 2014 (LI 2014/347).

Rule 1.4(1) working day paragraph (c): inserted, on 1 January 2015, by rule 4(2) of the District Courts Amendment Rules 2014 (LI 2014/347).

Subpart 2—Application and compliance

1.5 Application of rules

(1)

These rules apply to—

(a)

civil proceedings taken in the District Court under the District Courts Act 1947; and

(b)

unless otherwise provided in these rules or any other enactment, other civil proceedings taken in the District Court or before a Judge.

(2)

These rules do not apply to proceedings to which the Family Courts Rules 2002 apply, namely—

(a)

proceedings in the Family Court; or

(b)

proceedings in the District Court acting under—

(i)

section 151 of the Children, Young Persons, and Their Families Act 1989; or

(ii)

section 15 of the Family Courts Act 1980.

Compare: HCR 1.4(1)–(3); SR 2009/257 r 1.5

1.6 Transitional and savings provisions

Transitional and savings provisions relating to the commencement of these rules are set out in Schedule 1.

1.7 Application issues

If, in any civil proceeding, any question arises as to the application of any provision of these rules or the High Court Rules, the court may, either on the application of a party or on its own initiative, determine the questions and give any directions it thinks just.

Compare: 1947 No 16 s 70A; HCR r 1.4(4)

1.8 Non-compliance with rules

(1)

A failure to comply with the requirements of these rules—

(a)

must be treated as an irregularity; and

(b)

does not nullify—

(i)

the proceeding; or

(ii)

any step taken in the proceeding; or

(iii)

any document, judgment, or order in the proceeding.

(2)

Subject to subclauses (3) and (4), the court may, on the ground that there has been a failure to which subclause (1) applies, and on any terms as to costs or otherwise that it thinks just,—

(a)

set aside, either wholly or in part,—

(i)

the proceeding in which the failure occurred; or

(ii)

any step taken in the proceeding in which the failure occurred; or

(iii)

any document, judgment, or order in the proceeding in which the failure occurred; or

(b)

exercise its powers under these rules to allow any amendments to be made and to make any order dealing with the proceeding generally as it thinks just.

(3)

The court must not wholly set aside any proceeding or the originating process by which the proceeding was begun on the ground that the proceeding was required by the rules to be begun by an originating process other than the one employed.

(4)

The court must not set aside any proceeding or any step taken in a proceeding or any document, judgment, or order in any proceeding on the ground of a failure to which subclause (1) applies on the application of a party unless the application is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

Compare: HCR 1.5

1.9 Directions as to conduct of proceedings

(1)

A Judge may, by interlocutory order,—

(a)

fix the time by which a step in a proceeding must be taken:

(b)

fix the time by which all interlocutory steps must be completed:

(c)

direct the steps that must be taken to prepare a proceeding for a substantive hearing:

(d)

direct how the hearing is to be conducted:

(e)

make any other direction or order that the court may make under these rules.

(2)

A party or intended party may apply without notice to a Judge for directions if in doubt about—

(a)

whether it is correct or appropriate to join a person as a party; or

(b)

the proper court or registry in which to commence or take a step in a proceeding.

Compare: HCR r 7.43A

1.10 Security

(1)

If any officer is empowered to take security from any person for any purpose, the security must be given by the number of sureties and in the form and for the amount that the officer empowered to take security thinks proper.

(2)

Any person required to give security may appeal to the court against any decision under subclause (1).

(3)

A party’s solicitor may not be accepted as surety for a security that the party is required to give under rule 5.48(3).

(4)

If any surety becomes bankrupt or insolvent or makes a composition with his or her creditors, all further steps in the proceeding by the principal party to the security may be stayed by the court until another surety has been found.

Compare: HCR r 1.10

1.11 Cases not provided for

(1)

If any case arises for which no form of procedure is prescribed by any Act, rule, or regulation or by these rules, the court must dispose of the case as nearly as may be practicable in accordance with the provisions of the rules affecting any similar case or in accordance with the provisions of the High Court Rules.

(2)

If there are no relevant High Court Rules, the court must dispose of the case in the manner that the court thinks best calculated to promote the objective of these rules.

Compare: HCR 1.6; SR 2009/257 r 1.13

1.12 Amendment of defects and errors

(1)

The court or a Registrar may, before, at, or after the trial of any proceeding, amend any defects and errors in the pleadings or procedure in the proceeding, whether or not there is anything in writing to amend, and whether or not the defect or error is that of the party (if any) applying to amend.

(2)

The court may, at any stage of a proceeding, make, either on its own initiative or on the application of a party to the proceeding, any amendments to any pleading or the procedure in the proceeding that are necessary for determining the real controversy between the parties.

(3)

Amendments made under subclause (1) or (2) may be made with or without costs and on terms that the court thinks just.

Compare: HCR 1.9; SR 2009/257 r 1.14

1.13 Oral applications for relief

(1)

A Judge may grant relief on an oral application if the case is urgent and the interests of justice so require.

(2)

This rule applies despite any rule requiring a written application.

(3)

Relief may be granted on terms and conditions considered just.

Compare: HCR 1.7

1.14 Consent instead of leave of court

(1)

When, by these rules, the leave of the court is required in any matter of procedure, and all parties and persons who are affected consent to the grant of leave, a party may file a memorandum signed by all those parties and persons evidencing that consent and its terms and conditions.

(2)

The Registrar must either—

(a)

make and seal an order in terms of the memorandum; or

(b)

refer the memorandum to the court, in which case the memorandum must be treated as an interlocutory application for the leave.

Compare: HCR 1.8

Subpart 3—Use of Māori language, translations, and sign language

1.15 Speaking in Māori

(1)

This rule applies to a person entitled under section 7(1) of Te Ture mō Te Reo Māori 2016/the Māori Language Act 2016 to speak Māori in a proceeding (including at the hearing of an interlocutory application or at a conference).

(2)

If a person to whom this rule applies wishes to speak Māori in a proceeding or at the hearing of an interlocutory application, that person, or if the person is a witness, the party intending to call that person, must file and serve on every other party to the proceeding a notice of his or her intention to speak Māori.

(3)

The notice must state that the person intends to speak Māori at—

(a)

all conferences and hearings; or

(b)

all conferences and hearings held after a specified conference or hearing; or

(c)

a specified conference or hearing.

(4)

The notice must be in form 4.

(5)

The notice must be filed and served,—

(a)

if the person intends to speak Māori at all conferences and hearings, not less than 10 working days before the first conference or hearing; or

(b)

if the person intends to speak Māori at conferences and hearings held after a particular conference or hearing, not less than 10 working days before the first conference or hearing at which the person intends to speak Māori; or

(c)

if the person intends to speak Māori at a particular conference or hearing, not less than 10 working days before the conference or hearing.

Compare: HCR 1.11; SR 2009/257 r 3.5

Rule 1.15(1): amended, on 30 April 2016, by section 50 of Te Ture mō Te Reo Māori 2016/the Māori Language Act 2016 (2016 No 17).

1.16 Translation of documents into te reo Māori

(1)

A person upon whom in any proceeding a document is served is entitled to receive a translation of the document into the Māori language if he or she—

(a)

applies, orally or in writing, to the Registrar in the place where the proceeding is pending, within 10 working days after the date of service, for a translation into the Māori language of the document; and

(b)

states a postal address for the service of the translation (if an address for service has not already been given); and

(c)

satisfies the Registrar that he or she is unable to read the document but could read it if it were translated into the Māori language.

(2)

The Registrar must require that translation to be prepared by the party or person on whose behalf the document was served.

(3)

The translation must be certified correct by a person holding an endorsed certificate of competency under clause 4 of Schedule 6 of Te Ture mō Te Reo Māori 2016/the Māori Language Act 2016.

(4)

The translation may be served—

(a)

personally; or

(b)

at the address for service (if any) of the person entitled to the translation; or

(c)

by sending it by registered post addressed to that person at the stated postal address.

(5)

When the translation is sent by registered post, it is treated as having been served when it would be delivered or available for delivery at its address in the ordinary course of registered post.

(6)

The costs of preparing, certifying, and serving the translation are in the discretion of the court to be treated as costs in the proceeding.

(7)

Unless the court otherwise orders,—

(a)

the document is treated as not having been served until the translation is served in accordance with subclause (4); and

(b)

the proceeding in which the document is issued must be stayed as far as the person entitled to the translation is concerned until the translation is so served; and

(c)

every subsequent document served on the person in the proceeding and every enforcement process or other process issued against the person to enforce any judgment entered or order made in the proceeding must, unless the person is at the time represented by a solicitor, be accompanied by a translation into the Māori language complying with this rule.

Compare: HCR 1.12; SR 2009/257 r 3.6

Rule 1.16(3): amended, on 30 April 2016, by section 50 of Te Ture mō Te Reo Māori 2016/the Māori Language Act 2016 (2016 No 17).

1.17 Failure to give notice

A failure to comply with rule 1.15 does not prevent a person speaking Māori at a conference or hearing, but—

(a)

the court may adjourn the conference or hearing to enable the Registrar to arrange for a person who holds a certificate of competency under clause 1(2)(a) or (c) of Schedule 6 of Te Ture mō Te Reo Māori 2016/the Māori Language Act 2016, or some other person competent to interpret Māori, to be available at the adjourned conference or hearing:

(b)

the court may treat the failure to comply as a relevant consideration in an award of costs.

Compare: HCR 1.13; SR 2009/257 r 3.7

Rule 1.17(a): amended, on 30 April 2016, by section 50 of Te Ture mō Te Reo Māori 2016/the Māori Language Act 2016 (2016 No 17).

1.18 Translation may be ordered by court

(1)

The court may at any time order that a translation into the Māori language, complying with rule 1.16(2) to (7), of any document served, before or after the making of the order, upon a Māori person concerned in a proceeding be served on that person, whether or not the person has applied for it under rule 1.16(1).

(2)

An order may be made subject to such terms and conditions as the court thinks fit in the interests of justice.

(3)

The court may, on ordering a translation under this rule, grant an adjournment of the proceeding if it thinks fit in the interests of justice.

Compare: HCR 1.14; SR 2009/257 r 3.8

1.19 Affidavit in language other than English

(1)

An affidavit in a language other than English (non-English-language affidavit) may be filed in a proceeding.

(2)

The non-English-language affidavit must be accompanied by an affidavit by an interpreter to which is exhibited—

(a)

a copy of the non-English-language affidavit; and

(b)

the interpreter’s translation of the non-English-language affidavit.

Compare: HCR 1.15; SR 2009/257 r 3.9

1.20 Sign language

(1)

Any person permitted by the New Zealand Sign Language Act 2006 to use New Zealand Sign Language in a proceeding (including at the hearing of any interlocutory application, or at a conference), or if the person is a witness, the party intending to call that person, must give the court and all other parties 10 working days’ notice of that person’s intention to do so.

(2)

A Judge may at any time make any order that he or she thinks fit in the interests of justice relating to—

(a)

providing, with the Registrar’s assistance, a competent interpreter, and ensuring that the interpreter is available; and

(b)

the interpretation of the sign language into English or Māori and the interpretation of English or Māori words used in court into sign language; and

(c)

the costs of and incidental to any interpretation ordered; and

(d)

the method of making and recording the sign language communication.

(3)

A failure to give notice as required by subclause (1) does not prevent any permitted person using New Zealand Sign Language, but—

(a)

the failure is a relevant consideration in an award of costs; and

(b)

the Judge may adjourn the conference, hearing, or trial to enable the Registrar to arrange for a competent interpreter to be available at the adjourned conference, hearing, or trial.

(4)

In this rule, competent interpreter means an interpreter who meets the standards of competency specified in regulations made under the New Zealand Sign Language Act 2006, and in the absence of such regulations means a person who the Judge is satisfied is competent to translate from English or Māori (as the case requires) into New Zealand Sign Language and from New Zealand sign language into English or Māori (as the case requires).

Compare: HCR 1.16; SR 2009/257 r 3.10

Subpart 4—Time

1.21 Calculating periods of time

(1)

A period of time fixed by the rules or by a judgment, order, or direction or by a document in a proceeding must be calculated in accordance with this rule and rule 1.22.

(2)

When a time of 1 day or a longer time is to be reckoned by reference to a given day or event, the given day or the day of the given event must not be counted.

(3)

Nothing in this rule or in rules 1.22 and 1.23 affects the reckoning of a period of time fixed by the Limitation Act 2010 or any other statute or the application of the Interpretation Act 1999 in relation to the Limitation Act 2010 or any other statute.

Compare: HCR 1.17; SR 2009/257 r 1.16

1.22 When time expires when court registry is closed

When the time for doing any act at a registry of the court expires on a day on which that registry is closed, so that that act cannot be done on that day, the act is in time if done on the next day on which that registry is open.

Compare: HCR 1.18; SR 2009/257 r 1.17

1.23 Extending and shortening time

(1)

The court may, in its discretion, extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding, on such terms (if any) as the court thinks just.

(2)

The court may order an extension of time although the application for the extension is not made until after the expiration of the time appointed or fixed.

(3)

The court or a Registrar may order an extension of time on application made by written notice instead of by interlocutory application, if the parties consent.

Compare: HCR 1.19; SR 2009/257 r 1.18

Subpart 5—Lawyers’ obligations

1.24 Lawyers’ duties

(1)

The duties imposed by these rules on lawyers do not limit a lawyer’s obligations to a client or another lawyer or the court under the rules of conduct and client care for lawyers in New Zealand or other applicable ethical rules or guidelines.

(2)

A lawyer who acts for a party to a proceeding, or is a party to any proceeding, must not, without the leave of the court, act for any other party to the proceeding who does not have the same interest in the subject matter of the proceeding.

(3)

In this rule, lawyer includes the partner of a solicitor to whom subclause (1) applies.

(4)

In applying these rules, the court may have regard to the obligations referred to in subclause (1).

Compare: HCR 1.20

Subpart 6—Forms

1.25 Variation of forms

(1)

Variations may be made to any form directed or authorised by Schedule 2 or any other provisions of these rules to be used, as the circumstances of a particular case require, and—

(a)

any information may be added as required for identification or other official purposes; and

(b)

reformatted versions may be provided by the chief executive of the Ministry of Justice for general use and be received for filing (for example, such versions may use different type sizes or fonts or may reposition information or notes).

(2)

Subclause (1) does not apply if a Judge orders that a court document be prepared in a particular format or with prescribed content.

Compare: HCR 1.21

Subpart 7—International co-operation

1.26 Communication with foreign court

(1)

This rule applies if, and to the extent that, the court is required, or wishes, to seek the co-operation of a court in another country when dealing with an application under these rules.

(2)

The court is entitled to communicate with the foreign court if—

(a)

the parties consent; and

(b)

the communication is not prohibited by the law of the other country.

(3)

When the court acts under subclause (2), it must give the parties to the proceeding an opportunity to be heard on the form of the communication.

(4)

The communication and any reply must be treated as part of the record of the proceeding or interlocutory application.

Compare: HCR 1.22

Part 2 Court administration

Subpart 1—Registry hours and court holidays

2.1 Court holidays

(1)

Holidays must be observed in the court and the court’s registries and on the following days:

(a)

the days in the period beginning on Good Friday and ending with the close of the Monday following Easter:

(b)

the days in the period beginning 25 December in any year and ending with the close of 2 January in the following year:

(c)

Saturdays and Sundays:

(d)

the Sovereign’s birthday:

(e)

Anzac Day:

(f)

Labour Day:

(g)

Waitangi Day:

(h)

the day observed as the anniversary of the province in which the court is situated:

(i)

in each place where a registry of the court is situated, any day which in that place is—

(i)

a public holiday; or

(ii)

a proclaimed holiday:

(j)

any days on which any registry of the court is closed by an order under rule 2.3.

(2)

This rule is subject to the Holidays Act 2003.

Compare: HCR 3.2; SR 2009/257 r 1.19

2.2 Sittings on court holidays

(1)

The court may sit on a court holiday if a Judge considers it desirable to do so in order to dispose of business.

(2)

Despite subclause (1), the court may sit on a Sunday, Christmas Day, New Year’s Day, or Good Friday only if a Judge is of the view that the business to be disposed of is extremely urgent.

(3)

If the court sits on a court holiday, it may—

(a)

authorise the receipt or issue of any document complying with these rules:

(b)

authorise the service of any document received or issued under paragraph (a).

Compare: HCR 3.3; SR 2009/257 r 1.20

2.3 Closing or opening by special order

(1)

The Minister of the Crown who is responsible for the Ministry of Justice may by general or special order direct that the court or any registry of the court may be closed on any day specified in the order.

(2)

Despite rule 2.1, any registry of the court may from time to time be closed or opened by special order of a Judge.

(3)

If an order to close a registry is made under subclause (2), the Registrar must ensure that the order is advertised immediately in the manner directed by a Judge.

Compare: SR 2009/257 r 1.21

2.4 Registry hours

(1)

The court’s registries must be open from 9 am to 5 pm on every day that is not a court holiday.

(2)

The Minister of the Crown who is responsible for the administration of the Act may from time to time authorise the closing of the court or any registry of the court for 1 hour.

(3)

If the Registrar is Registrar for 2 or more registries, or in any other special circumstances, those registries of the court must be open on the days and at the times from time to time determined by the Minister of the Crown who is responsible for the administration of the Act.

(4)

A notice of the registry hours must be posted in some convenient place accessible to the public.

Compare: HCR 3.1; SR 2009/257 r 1.22

2.5 Epidemics and emergencies

(1)

Despite rule 2.4, a Judge may order that the court and its registries be closed for a period specified in the order (not exceeding 1 week) if an epidemic or emergency exists in the place where the court is located.

(2)

A Registrar must ensure that an order made under this rule is immediately advertised in the manner the Judge directs.

Compare: HCR 3.4

Postal provision

2.6 Filing by post

(1)

Documents to be filed may be posted together with the applicable fee to the Registrar at the proper registry of the court.

(2)

A posted document is filed when the Registrar receives it with the applicable fee.

(3)

The Registrar must notify the applicant of the hearing date (if any) allocated for the application.

(4)

If the application is made without notice and does not require an appearance, the Registrar must notify the applicant of the result of the application.

Compare: SR 2009/257 r 1.23

Subpart 2—Registrars

2.7 Registrars’ jurisdiction and powers relating to interlocutory applications

A Registrar has the jurisdiction and powers of a Judge to do the following:

(a)

hear and determine an application to extend or shorten the time for filing a statement of defence, counterclaim, third party notice, or notice of interlocutory application:

(b)

hear and determine an application under rule 6.24 (relating to service out of New Zealand):

(c)

adjourn a trial, reserving to the court the costs of, or arising out of, the adjournment:

(d)

order a stay of the proceeding or a step in the proceeding, if an order or a decision of a Registrar is subject to an application for review under rule 2.12:

(e)

make an order in an interlocutory application on notice—

(i)

if the consent of all relevant parties is endorsed on the application or filed; or

(ii)

on receiving a draft order consented to in writing by all relevant parties or by their solicitor or counsel.

Compare: HCR 2.5

2.8 Limits on jurisdiction

(1)

A Registrar must exercise jurisdiction under rule 2.7

(a)

in chambers; and

(b)

subject to any judicial direction.

(2)

However, a Registrar may exercise his or her jurisdiction under that rule without further direction.

(3)

In exercising a jurisdiction conferred by these rules, a Registrar is not subject to direction by any person except a Judge acting under rule 2.12.

Compare: HCR 2.7

2.9 Powers ancillary to jurisdiction

A Registrar may exercise powers ancillary to jurisdiction under rule 2.7 if a Judge may exercise those ancillary powers in the same circumstances.

Compare: HCR 2.8

2.10 Jurisdiction in other registries

A Registrar may exercise jurisdiction under rule 2.7 in respect of an application filed in a registry of the court other than the one at which he or she is Registrar.

Compare: HCR 2.9

2.11 Form of order

An order made by a Registrar under rule 2.7 must—

(a)

be headed “Before the Registrar at [place], in chambers”; and

(b)

be signed by a Registrar or Deputy Registrar, and sealed with the seal of the court; and

(c)

state the rule under which it is made.

Compare: HCR 2.10

2.12 Review of Registrar’s decision

(1)

An affected party to a proceeding or an intended proceeding may apply to a Judge by interlocutory application for a review of any of the following:

(a)

a Registrar’s exercise of jurisdiction:

(b)

a Registrar’s refusal to file a document tendered for filing:

(c)

a Registrar’s refusal to perform a duty placed on him or her under these rules.

(2)

The Judge may, on review, make any orders he or she thinks just.

(3)

Notice of an application for review must be filed,—

(a)

if it is made by a party who was present or represented when the decision or refusal of the Registrar was given, within 5 working days of the decision or refusal; or

(b)

if it is made by a party who was not present or represented, within 5 working days after the receipt by the party of notice of the decision or refusal.

(4)

An application for review under this rule is not a stay of proceeding or a step in the proceeding, unless a Judge, or a Registrar acting under rule 2.7, so directs.

Compare: HCR 2.11

Subpart 3—Investment of funds in court

2.13 Application for order

(1)

Subclause (2) applies if money has been, or is to be, paid into court in a proceeding under—

(a)

an order of the court; or

(b)

a provision of these rules.

(2)

If this subclause applies, a party to the proceeding may apply to the court for an order directing the Registrar to invest the money on whatever security or securities the court thinks just.

(3)

Unless the court otherwise orders, an application may not be made until 15 working days after the money has been paid into court.

Compare: HCR 3.17

2.14 Powers of court in relation to application

(1)

The court may, when making an order for investment of money under rule 2.13,—

(a)

direct that the security on which the money is invested must be taken in the name of the Registrar alone or with another person the court nominates; and

(b)

also give—

(i)

directions as to the form and the terms of the security; and

(ii)

any other directions as may appear necessary or expedient.

(2)

An order may be varied by the court on the application of a party to the proceeding.

Compare: HCR 3.18

2.15 Disposal of securities and income

(1)

The court may, on the application of a party to a proceeding, direct that—

(a)

the security on which money is invested under rule 2.13 be transferred to a party or parties in the shares or proportions the court thinks just; or

(b)

the security be converted into money and the resulting capital and income be paid to a party or parties in the shares or proportions the court thinks just; or

(c)

the capital be paid to a party or parties and the income be paid to another party or other parties in the shares or proportions the court thinks just.

(2)

An application may be made—

(a)

at the time of making an order under rule 2.13; or

(b)

at a later time.

(3)

Unless the court directs otherwise, the income received from an investment under an order under rule 2.13 must be paid to the party or parties who are found by the court to be entitled to the capital, in the shares or proportions the court thinks just.

Compare: HCR 3.19

Part 3 Access to court documents

3.1 Interpretation

In this Part, unless the context otherwise requires,—

access means to search, inspect, or copy under the supervision of an officer of the court

court file means a collection of documents in the custody or control of the court that relate to a proceeding (including any interlocutory application associated with the proceeding)

document

(a)

means any written material in the custody or control of the court that relates to a proceeding (including any interlocutory application associated with the proceeding), whether or not kept on a court file; and

(b)

includes documentary exhibits, video recordings, records in electronic form, films, photographs, and images in electronic form; but

(c)

excludes—

(i)

notes made by or for a Judge for his or her personal use; and

(ii)

any material that relates to the administration of the court

formal court record means any of the following kept in a registry of the court:

(a)

a register or index:

(b)

any published list that gives notice of a hearing:

(c)

a document that—

(i)

may be accessed under an enactment other than these rules; or

(ii)

constitutes notice of its contents to the public:

(d)

a judgment, order, or minute of the court, including any record of the reasons given by the Judge.

Compare: HCR 3.5; SR 2009/257 r 3.11

3.2 Application

(1)

This Part applies to documents while they are in the custody or control of the court and until they are transferred to Archives New Zealand.

(2)

This Part does not require any person to prepare a document that is not in existence at the time the document is sought.

(3)

Nothing in this Part applies to documents to which the Family Courts Rules 2002 apply.

Compare: HCR 3.6; SR 2009/257 r 3.12

3.3 General right of access to formal court record

Subject to rule 3.8, every person has the right to access the formal court record kept in a registry of the court.

Compare: HCR 3.7; SR 2009/257 r 3.13

3.4 Right of parties to access court file or documents

(1)

The parties to a proceeding, and their counsel, may (whether during or after the completion of the proceeding), under the supervision of an officer of the court,—

(a)

search and inspect the court file or any document relating to the proceeding, without payment of a fee; and

(b)

copy any part or parts of the court file or any document relating to the proceeding on payment of any prescribed fee.

(2)

Despite subclause (1), a record of court proceedings in electronic form may be copied only with the permission of the court.

(3)

Despite subclause (1), a Judge may direct that the court file or any document relating to the proceeding not be accessed by the parties or their counsel without the permission of the court.

Compare: HCR 3.8; SR 2009/257 r 3.14

3.5 Access to documents during substantive hearing stage

(1)

This rule applies during the hearing of a proceeding (other than the hearing of an interlocutory application) and until—

(a)

the close of the 20th working day after the court has given the final judgment on the proceeding; or

(b)

the discontinuance of the proceeding before the final judgment is given.

(2)

During the period to which this rule applies, any person may access any of the following documents relating to the proceeding:

(a)

any pleading, reference, notice, or application filed in the court:

(b)

affidavits, depositions, or other written statements admitted into evidence for the purposes of the hearing:

(c)

documents admitted into evidence for the purposes of the hearing:

(d)

if any evidence given orally at the hearing has been transcribed, a transcript of that evidence.

(3)

Despite subclause (2), a Judge may, on his or her own initiative or on request, direct that any document, or part of a document, relating to the proceeding not be accessed without the permission of a Judge.

(4)

A request for access to a document under this rule is made informally to the Registrar by letter that—

(a)

identifies the requested document; and

(b)

gives the reasons for the request.

(5)

The following provisions apply when a request for access to a document is made under subclause (4):

(a)

the Registrar must promptly give the parties or their counsel a copy of the request:

(b)

a party who wishes to object must, before the relevant deadline (within the meaning of rule 3.6), give written notice of the objection to the Registrar, to the person who made the request, and to the other parties or their counsel:

(c)

on receipt of an objection, the Registrar must promptly refer the objection and the request to the Judge for determination:

(d)

unless the document is subject to a restriction stated in subclause (3) or rule 3.8, the Registrar must promptly give the person who made the request access to the document—

(i)

if the Registrar receives no objection before the expiry of the relevant deadline (within the meaning of rule 3.6); or

(ii)

if the parties or their counsel earlier agree that the person be given access to the document:

(e)

every request that relates to a document that is subject to a restriction under subclause (3) or rule 3.8 is taken to be a request for the permission of a Judge, and must be promptly referred to the Judge by the Registrar.

(6)

The Judge may determine an objection referred to the Judge under subclause (5)(c) or a request for permission under subclause (3) or (5)(e) in any manner the Judge considers just.

(7)

For the purposes of subclause (2)(b) and (c), admitted into evidence does not include evidence admitted provisionally.

Compare: HCR 3.9; SR 2009/257 r 3.15

3.6 Meaning of relevant deadline in rule 3.5

(1)

For the purpose of rule 3.5, where a party or counsel receives a copy of a request given to the party or counsel under that rule, relevant deadline means whichever of the following times is applicable:

(a)

if the copy of the request is received on a day on which the hearing is proceeding, 3 pm on the first working day after the date on which the copy is received:

(b)

if the copy of the request is received on any other day, 3 pm on the third working day after the date on which the copy is received.

(2)

For the purposes of subclause (1), a person is deemed to receive a copy of a request—

(a)

on the day on which it is emailed, faxed, or handed to the person:

(b)

on the day after the date on which it is posted to the person.

(3)

This rule overrides rule 6.6.

Compare: HCR 3.10; SR 2009/257 r 3.16

3.7 Access to court files, documents, and formal court record in other cases

If a person is not eligible to access a document, court file, or any part of the formal court record under any of rules 3.3 to 3.5, the person may access the document, court file, or any part of the formal court record with the permission of the court, given on an application made under rule 3.9.

Compare: HCR 3.11; SR 2009/257 r 3.17

3.8 Restrictions on access

(1)

Any right or permission conferred or given by these rules to access a document, court file, or any part of the formal court record is subject to—

(a)

any enactment, court order, or direction limiting or prohibiting access or publication; and

(b)

the payment of any prescribed fees for access.

(2)

A person may not access a document, court file, judgment, or order that relates to a proceeding brought under an enactment specified in subclause (3) unless—

(a)

the person is a party to that proceeding; or

(b)

the court permits the person to do so.

(4)

A person may search, inspect, or copy a document, court file, judgment, or order of a District Court relating to an application under rule 9.51 (which relates to the service of New Zealand subpoenas in Australia) only with the leave of a Judge.

Compare: HCR 3.12; SR 2009/257 r 3.18

3.9 Applications for permission to access documents, court file, or formal court record other than at hearing stage

(1)

This rule applies whenever the permission of the court is necessary under these rules and is sought to access a document, court file, or any part of the formal court record, except where access may be sought under rule 3.5.

(2)

An application under this rule is made informally to the Registrar by a letter that—

(a)

identifies the document, court file, or part of the formal court record that the applicant seeks to access; and

(b)

gives the reasons for the application.

(3)

The application is heard and determined by a Judge or, if a Judge directs the Registrar to do so, by the Registrar.

(4)

On receipt of an application made in accordance with subclause (2), the Judge or Registrar may direct that the person file an interlocutory application or originating application.

(5)

The applicant must give notice of the application to any person who is, in the opinion of the Judge or Registrar, adversely affected by the application.

(6)

The Judge or Registrar may dispense with the giving of notice under subclause (5) if it would be impracticable to require notice to be given.

(7)

The Judge or Registrar may deal with an application on the papers, at an oral hearing, or in any other manner the Judge or Registrar considers just.

Compare: HCR 3.13; SR 2009/257 r 3.19

3.10 Decisions on applications under rule 3.9

(1)

The Judge or Registrar may refuse an application made under rule 3.9 or grant it in whole or in part without conditions or subject to any conditions that the Judge or Registrar thinks appropriate.

(2)

A Judge may permit access to a series of files for the purposes of research.

Compare: HCR 3.14; SR 2009/257 r 3.20

3.11 Review of decisions by Registrar

(1)

Any decision by a Registrar under rule 3.10 is subject to review by a Judge on the application of the applicant or any person affected.

(2)

Rule 2.12 applies as if the reference in that rule to a party were a reference to the applicant or any person affected.

Compare: HCR 3.15; SR 2009/257 r 3.21

3.12 Matters to be taken into account

In determining an application under rule 3.9, or a request for permission under rule 3.5, or the determination of an objection under that rule, the Judge or Registrar must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:

(a)

the orderly and fair administration of justice:

(b)

the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(c)

the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:

(d)

the freedom to seek, receive, and impart information:

(e)

whether a document to which the application or request relates is subject to any restriction under rule 3.8:

(f)

any other matter that the Judge or Registrar thinks just.

Compare: HCR 3.16; SR 2009/257 r 3.22

Part 4 Parties

Subpart 1—Limit on parties

4.1 Limit on parties

The number of persons named or joined as parties to a proceeding must be limited, as far as practicable, to—

(a)

persons whose presence before the court is necessary to justly determine the issues arising; and

(b)

persons who ought to be bound by any judgment given.

Compare: HCR 4.1

Subpart 2—Plaintiffs

4.2 Plaintiffs

(1)

Persons may be joined jointly, severally, or in the alternative as plaintiffs—

(a)

if it is alleged that they have a right to relief in respect of, or arising out of, the same transaction, matter, event, instrument, document, series of documents, enactment, or bylaw; and

(b)

if each of those persons brought a separate proceeding, a common question of law or fact would arise.

(2)

On the application of a defendant, the court may, if it considers a joinder may prejudice or delay the hearing of a proceeding, order separate trials or make any order it thinks just.

Compare: HCR 4.2

Subpart 3—Defendants

4.3 Defendants

(1)

Persons may be joined jointly, individually, or in the alternative as defendants against whom it is alleged there is a right to relief in respect of, or arising out of, the same transaction, matter, event, instrument, document, series of documents, enactment, or bylaw.

(2)

It is not necessary for every defendant to be interested in all relief claimed or every cause of action.

(3)

The court may make an order preventing a defendant from being embarrassed or put to expense by being required to attend part of a proceeding in which the defendant has no interest.

(4)

A plaintiff who is in doubt as to the person or persons against whom the plaintiff is entitled to relief may join 2 or more persons as defendants with a view to the proceeding determining—

(a)

which (if any) of the defendants is liable; and

(b)

to what extent.

Compare: HCR 4.3

Subpart 4—Third, fourth, and subsequent parties

4.4 Third parties

(1)

A defendant may issue a third party notice if the defendant claims any or all of the following:

(a)

that the defendant is entitled to a contribution or an indemnity from a person who is not a party to the proceeding (a third party):

(b)

that the defendant is entitled to relief or a remedy relating to, or connected with, the subject matter of the proceeding from a third party and the relief or remedy is substantially the same as that claimed by the plaintiff against the defendant:

(c)

that a question or issue in the proceeding ought to be determined not only between the plaintiff and the defendant but also between—

(i)

the plaintiff, the defendant, and the third party; or

(ii)

the defendant and the third party; or

(iii)

the plaintiff and the third party:

(d)

that there is a question or an issue between the defendant and the third party relating to, or connected with, the subject matter of the proceeding that is substantially the same as a question or an issue arising between the plaintiff and the defendant.

(2)

A third party notice must be issued within—

(a)

10 working days after the expiry of the time for filing the defendant’s statement of defence; or

(b)

a longer time given by leave of the court.

(3)

A third party notice may be issued only with the leave of the court if an application for judgment is pending under rule 12.2 or 12.3.

Compare: HCR 4.4

4.5 Fourth parties

(1)

A third party claiming any or all of the matters in rule 4.4(1) in relation to a person who is not a party to the proceeding (a fourth party) may issue a fourth party notice.

(2)

A fourth party notice must be issued within—

(a)

10 working days after the expiry of the time for filing the third party’s statement of defence; or

(b)

a longer time given by leave of the court—

(i)

on an application on notice to all existing parties; or

(ii)

with the written consent of all existing parties.

(3)

Rule 4.4(3) applies to fourth party notices.

Compare: HCR 4.5

4.6 Subsequent parties

(1)

A fourth party who claims any or all of the matters in rule 4.4(1) in relation to a person who is not a party to the proceeding (a subsequent party) may issue a subsequent party notice and so on.

(2)

A subsequent party notice may be issued only with—

(a)

the written consent of all existing parties; or

(b)

the leave of the court made on an application on notice to all existing parties.

(3)

Rules 4.4(3) and 4.5(2) apply, with all necessary modifications, to subsequent party notices.

Compare: HCR 4.6

4.7 Status of third, fourth, and subsequent parties

(1)

A third, fourth, or subsequent party is a party to the proceeding from the time a notice is served on that party.

(2)

A third, fourth, or subsequent party has the same rights of defence as a defendant to the proceeding.

Compare: HCR 4.7

4.8 Court’s power and discretion

(1)

On an application seeking leave to issue a third, fourth, or subsequent party notice, the court must have regard to all relevant circumstances, including delay to the plaintiff.

(2)

On the making of an application of that kind, the court may grant or refuse leave or grant leave on just terms.

Compare: HCR 4.8

4.9 Application of third party notice rules to fourth and subsequent party notices

Rules 4.10 to 4.17 apply, with all necessary modifications, to fourth and subsequent party notices.

Compare: HCR 4.9

4.10 Requirements of third party notice

(1)

A third party notice must be signed by the defendant and inform the third party of—

(a)

the plaintiff’s claim against the defendant; and

(b)

the defendant’s claim against the third party; and

(c)

the steps the third party is required to take if the third party wishes to dispute either claim; and

(d)

the consequences that will follow if the third party fails to dispute either claim.

(2)

A third party notice may be in form 5.

Compare: HCR 4.10

4.11 Filing of third party notice

(1)

A third party notice must be filed in the court together with a statement of the defendant’s claim against the third party.

(2)

The statement of claim must—

(a)

comply with rules 5.28 to 5.37; and

(b)

state the nature of the question or issue to be determined; and

(c)

state the nature and extent of any relief or remedy claimed against the third party; and

(d)

be accompanied by a list of documents relied on by the defendant under rule 8.4 (see also rule 8.4 for related requirements to provide copies).

Compare: HCR 4.11

4.12 Service on third party

A defendant must, within 25 working days after the date of the filing of the third party notice or the date of the order granting leave to issue the third party notice, serve the following on the third party:

(a)

a copy of the third party notice:

(b)

a copy of the defendant’s statement of claim against the third party:

(c)

a copy of the plaintiff’s statement of claim:

(d)

a copy of the notice of proceeding:

(e)

a copy of the defendant’s statement of defence or appearance:

(f)

a list of other documents that have been served—

(i)

by the plaintiff on the defendant; or

(ii)

by the defendant on the plaintiff.

Compare: HCR 4.12

4.13 Service on plaintiff

(1)

The defendant must, within 25 working days after the date of the filing of the third party notice or the date of the order granting leave to issue the third party notice, serve the plaintiff with—

(a)

a copy of the third party notice; and

(b)

a copy of the defendant’s statement of claim against the third party.

(2)

The plaintiff must not, without the leave of the court, do the following until the expiry of the time for the third party to file a defence:

(a)

enter judgment in the proceeding; or

(b)

apply for the allocation of a hearing date for the proceeding.

(3)

An application for leave to the court must be made on notice—

(a)

to the defendant; and

(b)

if the third party has been served, to the third party.

Compare: HCR 4.13

4.14 Filing and service of statement of defence

(1)

A statement of defence by a third party must be filed and served within 25 working days after the date of service of the third party notice.

(2)

Subclause (1) is subject to rule 6.31, which (unless the court otherwise orders) requires a defendant (as defined in section 4(1) of the Trans-Tasman Proceedings Act 2010) who has been served out of New Zealand to file a statement of defence within 30 working days from the date of service.

(3)

The statement of defence must be accompanied by a list of documents relied on by the third party in form 6 (see rule 8.4 for related requirements to provide copies).

(4)

A third party must serve a copy of the third party’s statement of defence on the plaintiff and the defendant.

Compare: HCR 4.14

4.15 Service of application for leave

If an application to the court for leave to issue a third party notice is required, it must be served on the other parties to the proceeding.

Compare: HCR 4.15

4.16 Setting aside third party notice

(1)

A third party may apply to the court have a third party notice issued and served with the leave of the court set aside.

(2)

A party to a proceeding served with a third party notice issued and served without leave of the court may apply to the court to have the notice set aside.

(3)

In either case, the court may—

(a)

set the third party notice aside and dismiss the defendant’s statement of claim against the third party—

(i)

on the merits; or

(ii)

without prejudice to the right of the defendant to pursue that claim against the third party in an independent proceeding; or

(b)

give other directions.

Compare: HCR 4.16

4.17 Default in filing statement of defence

(1)

A third party defaulting in filing a statement of defence—

(a)

admits the validity of, and is bound by,—

(i)

any judgment (whether by consent, default, or otherwise) given in the proceeding; and

(ii)

any decision on a question specified in the defendant’s statement of claim; and

(b)

admits liability if a contribution, an indemnity, relief, or a remedy is claimed against the third party in the defendant’s statement of claim.

(2)

Subclause (1) does not apply in third party proceedings against the Crown unless—

(a)

an application is made to that effect and the court orders it; and

(b)

the application was served on the Crown not less than 5 working days before the day for hearing the application.

Compare: HCR 4.17

Subpart 5—Claims between defendants

4.18 Right to give notice

If a defendant claims against another defendant in circumstances in which (had that other defendant not been a defendant) it would be permissible to issue and serve a third party notice on that other defendant, the claiming defendant may, at any time before the close of pleadings date for the proceeding, file and serve that other defendant and the plaintiff with a notice to that effect.

Compare: HCR 4.18

4.19 Statement of claim to be filed and served

(1)

A defendant who files a notice under rule 4.18 must file and serve with it a statement of that defendant’s claim against the other defendant.

(2)

The statement of claim—

(a)

must comply with the requirements of subpart 6 of Part 5; and

(b)

in particular, must state the nature of the question or issue sought to be determined and the nature and extent of any relief or remedy claimed against the other defendant; and

(c)

must be accompanied by a list of documents relied on by the defendant under rule 8.4 in form 6 (see also rule 8.4 for related requirements to provide copies).

Compare: HCR 4.19

4.20 Statement of defence

(1)

Unless a defendant served with a notice under rule 4.18 wishes to raise an affirmative defence to the claim made against that defendant by the defendant serving the notice, it is not necessary to file a statement of defence to that claim.

(2)

A statement of defence to a claim made in a notice served under rule 4.18 (accompanied by the list of documents referred to in rule 4.19(2)(c)) must, within 10 working days after the day of service of the notice, be filed and served—

(a)

on the defendant serving the notice; and

(b)

on the plaintiff.

Compare: HCR 4.20

4.21 Form of notice

(1)

A notice filed and served under rule 4.18 must be in form 7.

(2)

Every such notice must be signed by the defendant or the defendant’s solicitor.

Compare: HCR 4.21

4.22 Effect of omission to give notice

Even if a defendant has not given a notice under rule 4.18, the court may give any judgment or grant any relief in favour of that defendant that might have been given or granted if such notice had been given.

Compare: HCR 4.22

Subpart 6—Impact of certain capacities

4.23 Trustees, executors, and administrators

(1)

Trustees, executors, and administrators may sue and be sued on behalf of, or as representing, the property or estate of which they are trustees, executors, or administrators.

(2)

There is no need to join persons beneficially interested in a trust or an estate to a proceeding, because the trustees, executors, and administrators represent those persons.

(3)

However, the court may, at any stage, order that a beneficially interested person be made a party, either in addition to or instead of the trustees, executors, or administrators.

Compare: HCR 4.23

4.24 Persons having same interest

One or more persons may sue or be sued on behalf of, or for the benefit of, all persons with the same interest in the subject matter of a proceeding—

(a)

with the consent of the other persons who have the same interest; or

(b)

as directed by the court on an application made by a party or intending party to the proceeding.

Compare: HCR 4.24

4.25 Partners

(1)

Any 2 or more persons making a claim as partners or alleged to be liable as partners may sue or be sued in the name of the firm (if any).

(2)

The opposite party may apply to the firm for the names of the persons who are partners in the firm and, until an affidavit has been filed stating the names and addresses of the partners, all further steps in the proceeding on the part of the partners are stayed.

Compare: HCR 4.25

4.26 Person trading as firm

(1)

A person carrying on business in the name of a firm may be sued in the name of the firm.

(2)

The opposite party may apply to the court for an order—

(a)

directing that an affidavit be filed stating the name and address of the person carrying on the business; and

(b)

staying any further step in the proceeding on the part of the person carrying on the business until the affidavit has been filed.

Compare: HCR 4.26

4.27 Representation by other persons

In respect of a proceeding or intended proceeding, the court may, on an application by a party or an intending party or on its own initiative,—

(a)

direct an executor or a trustee to represent minors, unborn persons, absentees, or unrepresented persons:

(b)

appoint a counsel who agrees to represent minors, unborn persons, absentees, or unrepresented persons:

(c)

appoint a litigation guardian to represent a person if it appears necessary:

(d)

direct the Public Trust to represent a person or class of persons:

(e)

direct that the Attorney-General or the Solicitor-General be served:

(f)

direct, with the consent of the Attorney-General, that a head of a government department or other officer represent the public interest:

(g)

direct that a local authority, public body, or other representative body represent the inhabitants of a locality or any class of persons, unless their interests, or the interests of a considerable section of them, may be adverse to those of the local authority, public body, or other representative body:

(h)

if a local authority, public body, or other representative body is a plaintiff or a party whose interests appear to be adverse to those of the inhabitants of a locality or any class of persons, or a considerable section of them, direct the manner in which the inhabitants, class, or section are to be represented.

Compare: HCR 4.27

4.28 Relators

(1)

In this rule, a relator is a person who has been approved by the Attorney-General to bring a proceeding in the name of the Attorney-General.

(2)

A person who seeks to bring a proceeding in the name of the Attorney-General must obtain the approval of the Attorney-General.

(3)

A relator is liable for the costs of a proceeding.

(4)

A proceeding does not come to an end because a relator or all relators die or become incapable of acting.

(5)

However, the court may stay a proceeding until the name of a new relator, who has been approved by the Attorney-General, has been substituted.

(6)

A person must not be named as a relator in a proceeding until the person has authorised the solicitor issuing the proceeding to name him or her as a relator.

(7)

The authority must be—

(a)

in writing; and

(b)

signed by the proposed relator; and

(c)

filed in the registry of the court in which the proceeding is to commence.

Compare: HCR 4.28

Subpart 7—Incapacitated persons

4.29 Incapacitated person, litigation guardian, and minor defined

For the purposes of these rules,—

incapacitated person means a person who by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is—

(a)

not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or

(b)

unable to give sufficient instructions to issue, defend, or compromise proceedings

litigation guardian

(a)

means—

(i)

a person who is authorised by or under an enactment to conduct proceedings in the name of, or on behalf of, an incapacitated person or a minor (but only in a proceeding to which the authority extends); or

(ii)

a person who is appointed under rule 4.35 to conduct a proceeding; and

(b)

has the same meaning as the expression guardian ad litem

minor means a person who has not attained the age of 18 years, and a person is of full age if he or she has attained the age of 18 years.

Compare: HCR 4.29

4.30 Incapacitated person must be represented by litigation guardian

(1)

An incapacitated person must have a litigation guardian as his or her representative in any proceeding, unless the court otherwise orders.

(2)

If a person becomes an incapacitated person during a proceeding, a party must not take any step in the proceeding without the permission of the court until the incapacitated person has a litigation guardian.

Compare: HCR 4.30

4.31 Minor must be represented by litigation guardian

(1)

A minor must have a litigation guardian as his or her representative in any proceeding, unless the court otherwise orders.

(2)

Subclause (1) does not apply to a minor who—

(a)

is required by an enactment to conduct a proceeding without a litigation guardian; or

(b)

is permitted by an enactment to conduct a proceeding without a litigation guardian and elects to do so; or

(c)

is authorised under rule 4.32 to conduct a proceeding without a litigation guardian.

Compare: HCR 4.31

4.32 Minor may apply to conduct proceeding without litigation guardian

(1)

This rule applies to a minor who—

(a)

is not required or permitted by an enactment to conduct a proceeding without a litigation guardian; and

(b)

is not prohibited by an enactment from conducting a proceeding without a litigation guardian.

(2)

A minor who wishes to conduct a proceeding in his or her own name may apply to the court for authorisation to conduct the proceeding without a litigation guardian.

(3)

On an application under subclause (2), the court may make an order allowing the minor to conduct the proceeding without a litigation guardian if it is satisfied that—

(a)

the minor is capable of making the decisions required or likely to be required in the proceeding; and

(b)

no reason exists that would make it in the interests of the minor to be represented by a litigation guardian.

Compare: HCR 4.32

4.33 Application of rules 4.34 to 4.46 to minors

Rules 4.34 to 4.46 apply to a minor to whom rule 4.31(1) applies, and every reference in those rules to an incapacitated person must be read as if it were also a reference to a minor.

Compare: HCR 4.33

4.34 Court may set aside step in proceeding

The court may set aside a step in a proceeding if an incapacitated person did not have a litigation guardian when that step was taken and the court considers that the incapacitated person was unfairly prejudiced.

Compare: HCR 4.34

4.35 Appointment of litigation guardian

(1)

This rule applies if an incapacitated person does not have a litigation guardian within the meaning of paragraph (a)(i) of the definition of litigation guardian in rule 4.29.

(2)

The court may appoint a litigation guardian if it is satisfied that—

(a)

the person for whom the litigation guardian is to be appointed is an incapacitated person; and

(b)

the litigation guardian—

(i)

is able fairly and competently to conduct proceedings on behalf of the incapacitated person; and

(ii)

does not have interests adverse to those of the incapacitated person; and

(iii)

consents to being a litigation guardian.

(3)

In deciding whether to appoint a litigation guardian, the court may have regard to any matters it considers appropriate, including the views of the person for whom the litigation guardian is to be appointed.

(4)

The court may appoint a litigation guardian under this rule at any time—

(a)

on its own initiative; or

(b)

on the application of any person, including a person seeking to be appointed as litigation guardian.

Compare: HCR 4.35

4.36 Application to be served on person for whom litigation guardian is to be appointed

(1)

Unless the court otherwise orders, an application under rule 4.35

(a)

may be made without notice; and

(b)

must be served on the person for whom the litigation guardian is to be appointed.

(2)

When the person for whom the litigation guardian is to be appointed is a minor,—

(a)

subclause (1)(b) does not apply; and

(b)

unless the court otherwise orders, the application must be served instead on—

(i)

the minor’s parent or guardian; or

(ii)

if there is no parent or guardian, a person of full age who has the care of the minor or with whom the minor lives.

Compare: HCR 4.36

4.37 Notification of appointment

(1)

A litigation guardian within the meaning of paragraph (a)(i) of the definition of litigation guardian in rule 4.29 must file a copy of the order or other document that empowers him or her to conduct the proceeding, at the same time as the first document relating to the proceeding is filed.

(2)

A person appointed under rule 4.35 as a litigation guardian of a party to a proceeding must give notice of the appointment to other parties in the proceeding as soon as practicable after the appointment.

Compare: HCR 4.37

4.38 Powers of litigation guardian

A litigation guardian may do anything in relation to a proceeding that the incapacitated person could do if he or she were not incapacitated.

Compare: HCR 4.38

4.39 Heading on documents when incapacitated person is represented

The heading of a document filed in a proceeding in which an incapacitated person is represented by a litigation guardian must state—

(a)

the name of the incapacitated person followed by the words “by his (or her) litigation guardian”; and

(b)

the litigation guardian’s name.

Compare: HCR 4.39

4.40 Service of documents

(1)

A party who knows that an incapacitated person has a litigation guardian must serve any document in a proceeding—

(a)

on the litigation guardian, unless the litigation guardian has filed an address for service:

(b)

where the litigation guardian has filed an address for service, at that address for service.

(2)

Subclause (3) applies to a party who believes on reasonable grounds that a person is an incapacitated person but does not know if that person has a litigation guardian.

(3)

The party—

(a)

may apply to the court for the appointment of a litigation guardian under rule 4.35; and

(b)

may apply for directions as to service; and

(c)

must serve any documents in the proceeding in accordance with any directions as to service.

Compare: HCR 4.40

4.41 Representation to be disregarded in making award of costs

The fact that an incapacitated person is, or has been, represented by a litigation guardian must be disregarded in making an award of costs under the rules in favour of or against the incapacitated person.

Compare: HCR 4.41

4.42 Award of costs enforceable against incapacitated person or litigation guardian

(1)

Unless the court otherwise orders, an award of costs made against an incapacitated person may be enforced against any 1 or more of the following:

(a)

the incapacitated person:

(b)

the person who is the litigation guardian of the incapacitated person at the time the costs determination is made:

(c)

a person against whom an order for indemnity or contribution has been made under rule 4.43, to the extent of the amount of the indemnity or contribution.

(2)

Unless the court otherwise orders, a litigation guardian is entitled to be reimbursed out of the property of the incapacitated person for any costs paid under subclause (1)(b) or (c).

Compare: HCR 4.42

4.43 Liability of former litigation guardian for costs subsequently awarded against incapacitated person

The court may make an order—

(a)

directing a person who has ceased to be a litigation guardian of an incapacitated person (a former litigation guardian) to indemnify the incapacitated person or a current litigation guardian for any costs subsequently awarded against the incapacitated person in relation to steps taken in the proceeding by the former litigation guardian:

(b)

directing a former litigation guardian to indemnify the incapacitated person or the current litigation guardian on a basis specified by the court for any costs subsequently awarded against the incapacitated person in relation to steps taken in the proceeding after the former litigation guardian ceased to be the litigation guardian:

(c)

directing the former litigation guardian to make a contribution to the costs referred to in paragraph (a) or (b):

(d)

declaring that the former litigation guardian is not liable for any of the costs referred to in paragraph (a) or (b).

Compare: HCR 4.43

4.44 Compliance with liability order

(1)

A former litigation guardian may be required by the incapacitated person or the current litigation guardian to give effect to an order made under paragraph (a), (b), or (c) of rule 4.43.

(2)

The court may, on the application of a former litigation guardian, declare that the former litigation guardian is not required to comply with that order if it is satisfied, having regard to circumstances occurring after the order was made, that it is no longer just that the former litigation guardian be required to comply with the order.

Compare: HCR 4.44

4.45 Litigation guardian may be reimbursed for costs out of property of incapacitated person

Unless the court otherwise orders, a litigation guardian or former litigation guardian is entitled to be reimbursed out of the property of the incapacitated person for any costs (including solicitor and client costs) paid or incurred, or that are to be paid or incurred, by the litigation guardian or former litigation guardian on behalf of the incapacitated person.

Compare: HCR 4.45

4.46 Retirement, removal, or death of litigation guardian

(1)

A litigation guardian may retire only with the leave of the court.

(2)

Unless the court otherwise orders, the appointment of a litigation guardian under rule 4.35 ends if another person is subsequently authorised by or under an enactment to conduct the proceeding in the name of, or on behalf of, the incapacitated person.

(3)

A litigation guardian may be removed by the court when it is in the interests of the person he or she represents.

(4)

In the case of retirement, removal, or death of a litigation guardian, no further step may be taken in the proceeding without the leave of the court until the incapacitated person is represented by another litigation guardian.

Compare: HCR 4.46

4.47 Procedure when person ceases to be incapacitated person

(1)

The court must make an order terminating the appointment of a litigation guardian if it is satisfied that the person the litigation guardian represents is no longer an incapacitated person.

(2)

The court may make an order at any time—

(a)

on its own initiative; or

(b)

on the application of—

(i)

the incapacitated person; or

(ii)

his or her litigation guardian; or

(iii)

a party.

(3)

From the date of the order,—

(a)

all subsequent steps in the proceeding must be carried on by the person formerly represented by the litigation guardian; and

(b)

the person formerly represented by the litigation guardian is liable for all the costs of the proceeding (including solicitor and client costs) in the same manner as if he or she had commenced the proceeding or had become a party to the proceeding when he or she was not an incapacitated person.

Compare: HCR 4.47

4.48 Procedure when minor attains full age

(1)

A minor who attains full age must file and serve an affidavit confirming that he or she is no longer a minor.

(2)

Unless the court otherwise orders, from the date a minor attains full age—

(a)

the appointment of his or her litigation guardian ends; and

(b)

all subsequent steps in the proceeding must be carried on by that person; and

(c)

that person is liable for all the costs of the proceeding (including solicitor and client costs) in the same manner as if he or she had commenced the proceeding or had become a party to the proceeding when he or she was not a minor.

Compare: HCR 4.48

Subpart 8—Change of parties by death, bankruptcy, or devolution

4.49 Proceeding not to come to end

(1)

A proceeding does not come to an end on the death or bankruptcy of a party if a cause of action survives or continues.

(2)

A proceeding does not become defective because of the assignment, creation, or devolution of an estate or a title when the proceeding is pending.

Compare: HCR 4.49

4.50 Procedure on death, bankruptcy, and devolution

In the case of death, bankruptcy, or devolution of an estate of a party to a proceeding by operation of law in circumstances where the complete settlement of all the questions involved in the proceeding is necessary, the court—

(a)

must order that a personal representative, trustee, or other successor to the interest (if any) of that party be made a party to the proceeding, or be served with notice of it, in the prescribed manner and form on terms it thinks just; and

(b)

may make orders it thinks just for the disposal of the proceeding.

Compare: HCR 4.50

4.51 Devolution when proceeding pending

A proceeding may be continued by or against a person to or on whom an estate or title is assigned, created, or devolved if the assignment, creation, or devolution takes place when a proceeding is pending.

Compare: HCR 4.51

4.52 New parties order

(1)

Subclause (2) applies if, after a proceeding has commenced, there is an event causing a change or transmission of interest or liability (including death or bankruptcy) or an interested person comes into existence, making it necessary or desirable that—

(a)

a person be made a party; or

(b)

an existing party be made a party in another capacity.

(2)

An application without notice may be made for an order that the proceeding be carried on between the continuing parties and the new party (a new parties order).

(3)

The new parties order must, unless the court otherwise directs, be served on—

(a)

the continuing parties to the proceeding; and

(b)

each new party, unless the person making the application is the only new party.

(4)

The new parties order is binding on a person served from the time of service.

(5)

A person who is not already a party who is served with a new parties order must file a statement of defence in the same time frame and manner as a person served with a statement of claim.

Compare: HCR 4.52

4.53 Discharge or variation of new parties order

(1)

A person may apply to the court to discharge or vary a new parties order within 10 working days from the service of the order.

(2)

An incapacitated person who is served with a new parties order who does not have a litigation guardian may apply to the court within 10 working days from the appointment of a litigation guardian for the new parties order to be discharged or varied.

(3)

Until the period of 10 working days has expired, the new parties order has no force or effect on the incapacitated person.

Compare: HCR 4.53

Subpart 9—Adjusting parties

4.54 Change of name

A party’s name that is incorrectly stated in pleadings or changed by marriage, civil union, deed poll, or other means, may be amended, without an application to the court, by a notice signed by the party and filed and served on all other parties.

Compare: HCR 4.54

4.55 Parties wrongly joined

(1)

A proceeding is not defeated by reason of parties having been wrongly joined.

(2)

Despite a misjoinder, the court may deal with a proceeding in accordance with the rights and interests of the parties.

Compare: HCR 4.55

4.56 Striking out and adding parties

(1)

A Judge may, at any stage of a proceeding, order that—

(a)

the name of a party be struck out as a plaintiff or defendant because the party was improperly or mistakenly joined; or

(b)

the name of a person be added as a plaintiff or defendant because—

(i)

the person ought to have been joined; or

(ii)

the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.

(2)

An order does not require an application and may be made on terms the court considers just.

(3)

Despite subclause (1)(b), no person may be added as a plaintiff without that person’s consent.

Compare: HCR 4.56

Subpart 10—Interpleader

4.57 Interpretation

In this rule and rules 4.58 to 4.64, unless the context otherwise requires,—

applicant means a person entitled under section 94 or 111 of the Act to apply to the court for relief by way of interpleader

claimant means a person claiming against an applicant in terms of section 94 or 111 of the Act

execution creditor means a person who has issued an enforcement process under Part 19

execution debtor means a person against whose property an enforcement process has been issued under Part 19.

Compare: HCR 4.57

4.58 Right to interplead

(1)

When a person (A) is under a liability for any debt or other cause of action, money, or chattels for or in respect of which A is or expects to be sued by 2 or more persons making adverse claims, A may apply to the court in accordance with rules 4.59 to 4.64 for relief by way of interpleader under section 111 of the Act.

(2)

If a person (B) who is not a person against whom an enforcement process under Part 19 is issued claims money or chattels taken or intended to be taken by an officer giving effect to that process, or the proceeds or value of those chattels, the officer may apply to the court, serving notice on the execution creditor, the execution debtor, and B in accordance with rules 4.59 to 4.64, for relief under rule 4.63.

(3)

Subclause (2) applies—

(a)

whether or not there has been a return of the enforcement process; and

(b)

whether or not a proceeding has been commenced against the officer in respect of the money or chattels.

Compare: HCR 4.58

4.59 Form of application

(1)

When a claimant has issued a proceeding against the applicant in respect of the debt or money or chattels referred to in rule 4.58(1), and in cases within rule 4.58(2), the application must be an interlocutory application in the proceeding.

(2)

Subject to rules 4.61 to 4.64, subpart 2 of Part 7 of these rules applies to the application.

(3)

In other cases the application must be made by filing and serving a statement of claim and notice of proceeding under Part 5.

Compare: HCR 4.59

4.60 Affidavit in support

(1)

An application under rule 4.58 must be supported by an affidavit stating that—

(a)

the applicant claims no interest in the subject matter in dispute other than the charges or costs; and

(b)

adverse claims (of which details must be given) have been made by the claimants and stating the steps already taken by the respective claimants in support of their claims; and

(c)

the applicant is not colluding with any of the claimants to that subject matter; and

(d)

the applicant is willing to pay or transfer that subject matter into court or dispose of it as the court may direct.

(2)

A copy of the affidavit must be served on each claimant when the application under rule 4.58 is served.

Compare: HCR 4.60

4.61 Time for applying

(1)

If a claimant has commenced a proceeding against the applicant to enforce the claim, an application under rule 4.58 must be made before a statement of defence has been filed by the applicant.

(2)

If no statement of defence has been filed by the applicant, it must be made before judgment has been entered against the applicant.

Compare: HCR 4.61

4.62 Claimants to file affidavits

(1)

Subject to subclauses (2) and (3), a claimant who wishes to justify a claim must, within 5 working days after service of an application made under rule 4.58(1) or (2), file and serve on other claimants and on the applicant an affidavit stating the facts and matters relied on.

(2)

When, in accordance with rule 4.59(3), a statement of claim and notice of proceeding have been filed and served together with an affidavit under rule 4.60, the claimant must file and serve a statement of defence with the claimant’s affidavit.

(3)

If the claimant, had the claimant been a defendant, might have filed an appearance under rules 5.51 to 5.53, the claimant may, instead of filing and serving an affidavit under subclause (1), file and serve an appearance.

(4)

An appearance filed and served under subclause (3), for all the purposes of rules 4.63 and 4.64, has effect as though the claimant were a defendant in a proceeding brought by the applicant or by any other claimant referred to in the appearance.

Compare: HCR 4.62

4.63 Powers of court

(1)

On hearing an application under rule 4.58, the court may make whatever orders and directions justice requires.

(2)

In particular, and without limiting subclause (1), the court may—

(a)

stay a proceeding commenced by a claimant:

(b)

bar the claim of a claimant who has not filed and served either—

(i)

an affidavit justifying the claim under rule 4.62(2); or

(ii)

an appearance under rule 4.62(3):

(c)

adjudicate upon the competing claims on the affidavits filed, or adjourn the application for that purpose:

(d)

if the question appears to be one of law only, direct that the question be determined by the court:

(e)

direct the trial of the issues involved by the method that the court directs:

(f)

order that one of the claimants commence a proceeding against any other or others to try the question involved or, if a proceeding has been commenced by a claimant, order that any other claimant be joined as a defendant to that proceeding:

(g)

order that the chattels in dispute or any part of them be sold, and that the proceeds of the sale be applied in such manner and on such terms as are just.

(3)

Subclause (4) applies to a claimant who has been served with an application and—

(a)

does not appear on the hearing of the application; or

(b)

having appeared, fails or refuses to comply with an order.

(4)

The court may make an order declaring that the claimant and all persons claiming under that claimant may not continue or subsequently prosecute that claim against the applicant and all persons claiming under the applicant, but that order does not affect the rights of the claimants as between themselves.

Compare: HCR 4.63

4.64 Costs of applicant

(1)

Unless the court otherwise orders, an applicant is entitled to the indemnity costs (as defined by rule 14.6(1)(b)) of and incidental to the application.

(2)

The court may order that the applicant’s costs be paid by any 1 or more of the claimants and may apportion the liability between any 2 or more claimants, as it thinks just.

(3)

The court may charge any property in dispute, or the proceeds of the sale of it, or both, with payment of the costs of the applicant.

Compare: HCR 4.64

Part 5 Commencement of proceedings and filing of documents

Subpart 1—Proper registry of the court, transfer to High Court, transfer to District Court

5.1 How to determine proper registry

(1)

Documents that are required by these rules to be filed in the court must be filed in the registry—

(a)

either—

(i)

nearest to the residence or principal place of business of the defendant; or

(ii)

if the defendant is neither resident nor has a principal place of business in New Zealand, selected by the plaintiff; or

(b)

nearest to the place where the actions or omissions that led to the claim happened; or

(c)

nearest to the place where the property that is the subject of the claim is located; or

(d)

determined by the court or Registrar on the court’s or Registrar’s own initiative or on application.

(2)

If it appears to a Judge or Registrar, on application by either of the parties, that the statement of claim has been filed in the wrong registry, he or she may direct that the statement of claim and all documents be transferred to the proper registry.

(3)

If it appears to a Judge or Registrar, on application by either of the parties, that a different registry would be more convenient to the parties, he or she may direct that the statement of claim or all documents be transferred to that registry, and that registry becomes the proper registry.

Compare: HCR 5.1; SR 2009/257 r 3.1

Transfer from District Court to High Court

5.2 Transfer under section 43 of Act

(1)

A notice under section 43(1) of the Act must be in form 8 and must be filed by the defendant not later than 5 working days after service of the notice of proceeding on the defendant, including the day of service.

(2)

A notice under section 43(2) of the Act must be in form 9 and must be filed by the defendant not later than 5 working days after service of the notice of proceeding on the defendant, including the day of service.

(3)

An order transferring a proceeding must be in form 10.

Compare: SR 2009/257 r 3.2

5.3 Papers to be forwarded to High Court

On the making of an order transferring a proceeding from a District Court to the High Court, the Registrar must forward all papers in the proceeding to the Registrar of the High Court whose registry is named in the order.

Compare: SR 2009/257 r 3.3

Proceedings transferred from High Court

5.4 Transfer under section 46 of Act

(1)

This rule applies to proceedings transferred to the court by the High Court under section 46 of the Act.

(2)

A Judge—

(a)

must convene a case management conference under rule 7.5(1):

(b)

in addition, may do 1 or more of the following:

(i)

convene a judicial settlement conference:

(ii)

allocate a short trial, simplified trial, or full trial:

(iii)

make any directions he or she considers appropriate.

Compare: SR 2009/257 r 3.4

Subpart 2—Formal requirements for documents

5.5 Non-complying documents

(1)

A document that does not comply with these rules may be received for filing only by leave of a Judge or the Registrar.

(2)

The cost of an application under subclause (1) must be borne by the party making it, and may not be claimed as costs against another party under Part 14.

(3)

Despite subclause (1), a document presented for filing by a party who is not represented by a lawyer may be received and corrected by a Registrar, with the consent of that party.

(4)

Nothing in subpart 2 or 3 of this Part or in subpart 2 of Part 11 applies to a document to which any provision or Part 19 of these rules (Enforcement) or Part 6 of the Act applies.

Compare: HCR 5.2

5.6 Paper

(1)

The paper used must be of medium weight and good quality.

(2)

Each sheet of paper must be of international size A4.

Compare: HCR 5.3

5.7 Contents to be typed, etc

(1)

The contents of each document must be legible and clearly typewritten, printed, or produced in permanent form by photocopying.

(2)

Despite subclause (1), handwriting may be used for the date of the document.

(3)

Subclause (1) does not apply to the signature on a document.

Compare: HCR 5.4

5.8 Margin

(1)

A margin of at least one-quarter of the width of the paper must be left on the left-hand side of each page.

(2)

If, however, the reverse side of a page is used, a margin of that width must be left on the right-hand side of that page.

Compare: HCR 5.5

5.9 Signature to be original

If a document is signed,—

(a)

the signature must be an original signature; and

(b)

immediately below the original signature, the name of the signatory must be—

(i)

legibly typed, printed, or stamped; or

(ii)

legibly written in the style of printed matter.

Compare: HCR 5.6

5.10 Cover sheet, numbering, and fastening of document

(1)

The first sheet of a document must be a cover sheet, showing the matters specified in rules 5.11 and 5.14.

(2)

The cover sheet must not be numbered, even if the heading is continued on another sheet under rule 5.13.

(3)

Each page after the cover sheet must be numbered consecutively, starting with the number 1.

(4)

All sheets of a document must be securely fastened together.

Compare: HCR 5.7

5.11 Description of document

(1)

The cover sheet must show, immediately below the heading, an accurate description of the document.

(2)

The description must include—

(a)

words indicating the party by whom or on whose behalf the document is filed; and

(b)

the words “application without notice” in the case of an application so made.

Compare: HCR 5.8

5.12 Heading generally

All documents presented for filing must have the proper heading of the proceeding.

Compare: HCR 5.9

5.13 Format of cover sheet

(1)

The cover sheet of an originating document and of a notice of interlocutory application must—

(a)

include only—

(i)

the heading; and

(ii)

the description of the document; and

(iii)

if applicable, the next event date; and

(iv)

if applicable, the name of the Judge to whom the proceeding has been assigned; and

(v)

the information required by rule 5.19; and

(b)

leave ample space between the description of the document and the information referred to in paragraph (a)(v) for the inclusion of a minute.

(2)

The heading may, if necessary, be continued on another sheet.

(3)

In subclause (1)(a)(iii), next event date means, if allocated, the date and nature of a hearing or conference that is to be held next after the date on which the document is filed.

Compare: HCR 5.10

Subpart 3—Heading of court documents

5.14 Heading on statement of claim and counterclaim

(1)

The heading of a statement of claim, and of any counterclaim intended to be served upon a person other than the plaintiff, must show—

(a)

the number of the proceeding:

(b)

the registry of the court in which it is filed:

(c)

if the statement of claim or counterclaim seeks relief in reliance on jurisdiction conferred by an enactment, the title of that enactment:

(d)

if the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of an instrument other than a will, the name of the maker of, or the names of the parties to, the instrument and its date:

(e)

if the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of an enactment, the Title and the relevant section or sections of the enactment:

(f)

the full name, and the place of residence and occupation, of every plaintiff and defendant, so far as they are known to the party presenting the document for filing.

(2)

Form 2 must be used for the purposes of subclause (1).

(3)

The names of parties in the heading of a statement of claim must not be repeated in the heading of a counterclaim, which may, for example, refer to the “Plaintiff and First Counterclaim Defendant”.

Compare: HCR 5.11

5.15 Heading on judgment and certain orders

The heading of a judgment and of an order that is required to be registered under any enactment must be the same as the heading on the statement of claim or other document by which the proceeding was commenced.

Compare: HCR 5.12

5.16 Heading on other documents

(1)

The heading of a document to which neither rule 5.14 nor 5.15 applies may be abbreviated as follows:

(a)

first names of persons may be denoted by initials only, unless full names are necessary to distinguish between persons having the same initials:

(b)

if 2 or more persons are joined in the same interest, the name of the first-named person may be set out, followed by the words “and another” or “and others”, as the case may be:

(c)

places of residence and descriptions of persons (unless necessary to distinguish 2 or more persons required to be named and with the same name) and indications of the interest in which a person is a party must be omitted:

(d)

the names of corporations must be set out without abbreviation, but without stating the fact of incorporation or referring to the registered office or making other addition.

(2)

Despite subclause (1), a fuller title may be used upon change of parties or if any party considers that a person has in a previous document been wrongly named or described or for other sufficient reason.

Compare: HCR 5.13

5.17 Division into paragraphs

(1)

Every document presented for filing must be divided into paragraphs which must be numbered consecutively, starting with the number 1.

(2)

Each paragraph must so far as possible be confined to a single topic.

Compare: HCR 5.14

5.18 Numbers

Numbers must be expressed in figures and not in words.

Compare: HCR 5.15

5.19 Information at foot of cover sheet

(1)

The following information must appear at the foot of the cover sheet of every document for filing:

(a)

the name of the solicitor or firm of solicitors (if any) presenting it for filing and the name of any agent by whom the document is filed; and

(b)

when the document is presented for filing by or on behalf of a solicitor or firm of solicitors,—

(i)

the name and telephone number of the principal or employee dealing with the proceeding; and

(ii)

the address of any post office box or document exchange used by the solicitor or firm; and

(iii)

any fax number and any email address used by the solicitor or firm.

(2)

The fact that the name of a solicitor or firm of solicitors is subscribed on a document is prima facie evidence that the document was filed by that solicitor or firm of solicitors.

Compare: HCR 5.16

Subpart 4—Pleadings generally

5.20 Distinct matters to be stated separately

(1)

Distinct causes of action and distinct grounds of defence, founded on separate and distinct facts, must if possible be stated separately and clearly.

(2)

If a party alleges a state of mind of a person, that party must give particulars of the facts relied on in alleging that state of mind.

(3)

A state of mind includes a mental disorder or disability, malice, or fraudulent intention but does not include mere knowledge.

Compare: HCR 5.17

5.21 Denial of representative character

A denial must be specific if a party wishes to deny the right of another party to claim as executor or administrator or as trustee, or in a representative or other alleged capacity, or the alleged constitution of a partnership firm.

Compare: HCR 5.18

5.22 Denial of contract

(1)

A bare denial of a contract will be treated as denying only the making of the contract in fact, and a party must specifically plead an assertion as to the legality or enforceability of a contract, whether with reference to section 24 of the Property Law Act 2007 or otherwise, or as to the interpretation of the contract advanced by that party.

(2)

A party asserting that a contract is illegal or unenforceable must plead the enactment or rule of law relied on.

(3)

A party asserting that the interpretation of a contract advanced by another party is wrong must assert its own interpretation.

Compare: HCR 5.19

5.23 Effect of document to be stated

If a party relies upon any document in whole or in part, it is sufficient to state its effect as briefly as possible, without setting it out, unless the precise words are material.

Compare: HCR 5.20

5.24 Notice requiring further particulars or more explicit pleading

(1)

A party may, by notice, require any other party—

(a)

to give any further particulars that may be necessary to give fair notice of—

(i)

the cause of action or ground of defence; or

(ii)

the particulars required by these rules; or

(b)

to file and serve a more explicit statement of claim or of defence or counterclaim.

(2)

A notice must indicate as clearly as possible the points on which the pleading is considered defective.

(3)

If the party on whom a notice is served neglects or refuses to comply with the notice within 5 working days after its service, the court may, if it considers that the pleading objected to is defective or does not give particulars properly required by the notice, order a more explicit pleading to be filed and served.

(4)

Even if no notice has been given under this rule, the court may on its own initiative order a more explicit pleading to be filed and served.

Compare: HCR 5.21

Subpart 5—Notice of proceeding

5.25 Notice of proceeding to be filed with statement of claim

A notice of proceeding must be filed with every statement of claim.

Compare: HCR 5.22

5.26 Requirements as to notice of proceeding

(1)

The notice of proceeding must—

(a)

be signed by the plaintiff or the plaintiff’s solicitor:

(b)

state the place for the filing of a statement of defence and the time within which the statement of defence is required to be filed, in accordance with these rules:

(c)

warn the defendant that if a statement of defence is not filed within the required time, the plaintiff may at once proceed to judgment on the plaintiff’s claim and judgment may be given in the absence of the defendant.

(2)

The notice of proceeding must be in form 1.

(3)

If the court has directed that any person other than the defendant named in the title of the proceeding be served, a statement to that effect signed by the Registrar and setting out the name, place of residence, and occupation of that person must be annexed to the notice of proceeding.

(4)

[Revoked]

Compare: HCR 5.23

Rule 5.26(4): revoked, on 1 January 2015, by rule 5 of the District Courts Amendment Rules 2014 (LI 2014/347).

5.27 When not necessary to file notice of proceeding

Despite rule 5.25, a notice of proceeding need not be filed, unless the court so orders,—

(a)

if no relief against any person is claimed in the statement of claim (as, for example, in the case of a company’s application to be put into liquidation by the court, or a person’s application to be adjudicated bankrupt); or

(b)

if service of the notice is dispensed with—

(i)

by statute; or

(ii)

under these rules; or

(iii)

by order of the court.

Compare: HCR 5.24

Subpart 6—Statement of claim

5.28 Proceeding commenced by filing statement of claim

(1)

A proceeding must be commenced by filing a statement of claim in the proper registry.

(2)

Subclause (1) does not apply to—

(a)

an appeal under Part 17 or 18:

(b)

a proceeding commenced by originating application under subpart 2 of Part 20:

(c)

a proceeding, commenced in accordance with the Trans-Tasman Proceedings Regulations and Rules 2013, to register under subpart 5 of Part 2 of the Trans-Tasman Proceedings Act 2010 a registrable Australian judgment.

(3)

Despite subclause (1), the statement of claim may be filed in any registry of the court if the parties agree, by endorsement on the statement of claim, to the filing of the statement of claim in that registry.

(4)

The statement of claim must be accompanied by a list of documents relied on by the plaintiff under rule 8.4 in form 6 (see also rule 8.4 for related requirements to provide copies).

Compare: HCR 5.25

5.29 Statement of claim to show nature of claim

The statement of claim—

(a)

must show the general nature of the plaintiff’s claim to the relief sought; and

(b)

must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action; and

(c)

must state specifically the basis of any claim for interest and the rate at which interest is claimed; and

(d)

in a proceeding against the Crown that is instituted against the Attorney-General, must give particulars of the government department or officer or employee of the Crown concerned.

Compare: HCR 5.26

5.30 Statement of claim to specify relief sought

(1)

The statement of claim must conclude by specifying the relief or remedy sought.

(2)

If the statement of claim includes 2 or more causes of action, it must specify separately the relief or remedy sought on each cause of action immediately after the pleading of that cause of action.

Compare: HCR 5.27

5.31 Inclusion of several causes of action

(1)

A plaintiff may include several causes of action in the same statement of claim.

(2)

Despite subclause (1), claims by or against an Official Assignee in bankruptcy, or a liquidator or a receiver of a company, in that capacity, must not, without leave of the court, be joined with any claim by or against that person in any other capacity.

(3)

Despite subclause (1), claims by or against an executor or administrator or trustee, in that capacity, must not be joined with claims by or against that person in a personal capacity unless those personal claims are alleged to arise with reference to the estate or trust in respect of which the person sues or is sued as executor or administrator or trustee.

Compare: HCR 5.28

5.32 Joint plaintiffs

Claims by plaintiffs jointly may be joined with separate claims by them or any of them against the same defendant.

Compare: HCR 5.29

5.33 Representative capacity of party

A party to a proceeding who sues or is sued in a representative capacity must show in what capacity the party sues or is sued in the statement of claim.

Compare: HCR 5.35

5.34 Specifying relief sought

(1)

The relief claimed must be stated specifically, either by itself or in the alternative.

(2)

Despite subclause (1), it is not necessary to ask for general or other relief but the court may, if it thinks just, grant any other relief to which the plaintiff is entitled, even though that relief has not been specifically claimed and there is no claim for general or other relief.

Compare: HCR 5.31

5.35 Amount of money claim

A statement of claim seeking the recovery of a sum of money must state the amount as precisely as possible.

Compare: HCR 5.32

5.36 Special damages

A plaintiff seeking to recover special damages must state their nature, particulars, and amount in the statement of claim.

Compare: HCR 5.33

5.37 Set-off

A plaintiff who wishes to allow a set-off or to give up a portion of the plaintiff’s claim must show the amount allowed or given up in the statement of claim.

Compare: HCR 5.34

Subpart 7—Authority of solicitors to act

5.38 Authority to file documents

(1)

No solicitor may file a document on behalf of a party unless the solicitor is—

(a)

authorised by, or on behalf of, the party to file the document; and

(b)

the holder of a current practising certificate as a solicitor or as a barrister and solicitor issued under section 39 of the Lawyers and Conveyancers Act 2006.

(2)

Subclause (1) does not prevent a person from filing a document on behalf of a party if the person is authorised by, or on behalf of, the party to file the document, and—

(a)

is not the holder of a current practising certificate as a barrister or as a barrister and solicitor issued under section 39(1) of the Lawyers and Conveyancers Act 2006; but

(b)

is allowed to appear for, or to represent, the party, in connection with the proceedings, under section 27(1)(b)(i) or (ii) of the Lawyers and Conveyancers Act 2006.

(3)

The following rules allow certain Australian solicitors to represent a party by filing certain documents:

(a)

rule 5.39 (documents in certain trans-Tasman proceedings):

(b)

rule 9.53(1)(b) (application to set aside New Zealand subpoena served on witness in Australia).

Compare: HCR 5.36

5.39 Authority of certain Australian solicitors in certain trans-Tasman proceedings

(1)

This rule applies to a defendant and a solicitor if the defendant is served with an initiating document in Australia under section 13 of the Trans-Tasman Proceedings Act 2010 and the solicitor is—

(a)

entitled to practice as a solicitor of a Supreme Court of a State or Territory of Australia; and

(b)

authorised by, or on behalf of, the defendant to file a document for the defendant in respect of, or in, the proceeding to which the initiating document relates.

(2)

The solicitor may file the document if the court has under section 38 of the Trans-Tasman Proceedings Act 2010 given the solicitor leave or, as the case requires, he or she is entitled under section 23(4) of that Act, to appear remotely in 1 or more hearings relating to the proceeding.

(3)

The solicitor may file the document even though the solicitor has neither sought, nor been given, leave under section 38 of the Trans-Tasman Proceedings Act 2010 or, as the case requires, he or she has neither made, nor had accepted, a request under section 23(4)(c) of that Act, if the document is—

(a)

an appearance or response document (as defined in section 17(2) of that Act); or

(b)

an application under section 22 of that Act for a stay of the proceeding; or

(c)

a request under section 23(4)(c) of that Act to appear remotely in a hearing to determine an application under section 22 of that Act; or

(d)

an application for leave under section 38 of that Act; or

(e)

a document related to a document, application, or request in any of paragraphs (a) to (d).

(4)

A solicitor who files a document under subclause (3) may, even if not the holder of a current practising certificate as a barrister or as a barrister and solicitor issued under section 39(1) of the Lawyers and Conveyancers Act 2006, be the solicitor on the record under rule 5.41 until—

(a)

the court declines an application by the solicitor for leave under section 38 of that Act; or

(b)

a document to which subclause (3) does not apply is filed in the proceeding by or on behalf of the defendant and, when that document is filed, the court has not given the solicitor leave under section 38 of that Act.

(5)

Subclause (4) does not enable the solicitor to appear remotely in a hearing relating to the proceeding without leave under section 38 of the Trans-Tasman Proceedings Act 2010 or, as the case requires, without being entitled to do so under section 23(4) of that Act.

Compare: HCR 5.36A

5.40 Solicitor’s warranty as to authorisation to file documents

A solicitor by whom, or on whose behalf, a document is filed in the court is to be treated as warranting to the court and to all parties to the proceeding that he or she is authorised, by the party on whose behalf the document purports to be filed, to file the document.

Compare: HCR 5.37

5.41 Solicitor on record

(1)

The solicitor on the record for a party to a proceeding is the solicitor whose name appears on the memorandum located at the end of the first document filed by the party in accordance with rule 5.47.

(2)

This rule is subject to rules 5.39(4) and 5.45.

Compare: HCR 5.38

5.42 Authority to sign documents

(1)

A document required, by these rules, to be signed by a party may be signed on behalf of the party by the party’s solicitor on the record unless the party’s personal signature is expressly required.

(2)

Subclause (1) does not limit the authority of counsel to sign documents.

Compare: HCR 5.39

5.43 Change of representation or address for service

(1)

A party must file and serve on every other party to the proceeding a notice of change of representation if—

(a)

the party has acted in person and appoints a solicitor to act for that party; or

(b)

the party wishes to change that party’s solicitor; or

(c)

the party for whom a solicitor has acted wishes to act in person.

(2)

If the party’s address for service after the change of representation will be different from that which applied before the change, the party must also serve a copy of the notice at the address that was, immediately before the change, the party’s address for service.

(3)

The notice—

(a)

must be signed by the party personally or by the party’s attorney; and

(b)

in the case of a notice under subclause (1)(a) or (b), must contain the information about the new solicitor required by rule 5.47(1)(b) to (e); and

(c)

in the case of a party referred to in subclause (1)(c), must state that the party’s intention is to act in person and state the party’s preferred method of service (being a method of service prescribed by rule 6.1(1)(d)).

(4)

For the purpose of the proceeding, the change of representation takes effect on the filing of an affidavit proving service in accordance with subclause (1).

(5)

A party may change that party’s address for service by—

(a)

filing a notice of the change showing the new address for service or specifying an address for a method of service set out in rule 6.1(1)(d); and

(b)

serving a copy of the notice on every other party.

(6)

A change of address for service may be combined with a notice under subclause (1).

(7)

A notice of change of address for service need not be filed under subclause (5)(a) if an affidavit is filed under subclause (4).

(8)

Form 11 may be used.

Compare: HCR 5.40

5.44 Withdrawal of solicitor who has ceased to act for party

(1)

If the solicitor on the record for a party to a proceeding has ceased to act for the party, the solicitor may apply to the court for an order declaring that the solicitor has ceased to be the solicitor on the record for the party in that proceeding, and the court may make the order.

(2)

It is not necessary to make an application if—

(a)

the party has effected a change of solicitor in accordance with rule 5.43; or

(b)

the party—

(i)

has filed a notice stating that the party intends to act in person and the party’s new address for service; and

(ii)

has served a copy of the notice on the solicitor on the record and on every other party to the proceeding who has given an address for service; and

(iii)

has filed an affidavit proving that service and attaching and verifying a copy of the notice served.

(3)

Unless subclause (2)(a) or (b) applies, the solicitor on the record for a party to a proceeding, for the purposes of that proceeding, is the solicitor on the record for that party until the final conclusion of the proceeding unless and until the solicitor—

(a)

obtains an order under subclause (1); and

(b)

serves on every party to the proceeding who has given an address for service a copy of the order obtained under that subclause; and

(c)

files an affidavit proving that service.

(4)

Every application under subclause (1) must be made by interlocutory application and must be supported by an affidavit giving the grounds of the application.

(5)

Unless the court otherwise directs, notice of every application under subclause (1), and a copy of the affidavit in support of the application, must be served on the party for whom the solicitor acted, and that notice must inform the party of the effect that rule 5.45 will have on the party’s address for service if the solicitor obtains an order under subclause (1).

(6)

An order made under subclause (1) does not affect the rights of the solicitor and the party for whom the solicitor acted as between themselves.

Compare: HCR 5.41

5.45 Address for service of party whose solicitor has ceased to act

(1)

This rule applies whenever the solicitor on the record for a party has obtained an order under rule 5.44(1) and has complied with rule 5.44(3)(b) and (c).

(2)

The last known address of the party, or, when the party is a body corporate, its registered or principal registry is, for the purpose of serving the party with any document not required to be served personally, the party’s address for service until the party—

(a)

appoints another solicitor and complies with rule 5.43; or

(b)

if the party intends to act in person,—

(i)

files a notice stating that the party intends to act in person and showing the party’s new address for service and the party’s preferred method of service (being a method of service prescribed by rule 6.1(1)(d) or specifying an address for a method of service set out in rule 6.1(1)(d)); and

(ii)

serves on the solicitor who obtained the order under rule 5.44(1) and on every other party to the proceeding who has given an address for service a copy of that notice; and

(iii)

files an affidavit proving that service and attaching and verifying a copy of the notice served.

Compare: HCR 5.42

5.46 Solicitors to inform clients of orders or directions

The solicitor on the record for a party must notify the party of an order or direction that affects that party promptly after it is made.

Compare: HCR 5.43

Subpart 8—Memorandum on first document

5.47 Memorandum at end of first document filed by party

(1)

At the end of the first document filed by a party there must be a memorandum stating—

(a)

that the document is filed by a party in person, or by the party’s solicitor, as the case may be; and

(b)

if it is filed by a solicitor,—

(i)

the name of the solicitor; and

(ii)

if the solicitor is a member of a firm or practises under a firm’s name, the name of the firm; and

(c)

if it is filed by a solicitor who has another solicitor acting as the solicitor’s agent in the proceeding,—

(i)

the name of the agent or of the agent’s firm (if any); and

(ii)

the postal address of the party’s solicitor; and

(d)

an address for service; and

(e)

any post office box address, document exchange box number, fax number, or email address by which the solicitor or the party in person will accept service of documents in the course of the proceeding.

(2)

The memorandum may be in one of the paragraphs of form 12.

Compare: HCR 5.44

Subpart 9—Security for costs

5.48 Power to make order for security for costs

(1)

This rule applies if the court is satisfied, on the application of a defendant,—

(a)

that a plaintiff—

(i)

is resident outside New Zealand; or

(ii)

is a corporation incorporated outside New Zealand; or

(iii)

is, within the meaning of section 158 of the Companies Act 1955 or section 5 of the Companies Act 1993, as the case may be, a subsidiary of a corporation incorporated outside New Zealand; or

(b)

that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.

(2)

When this rule applies, the court may, if it thinks fit in all the circumstances, order the giving of security for costs.

(3)

An order under subclause (2)—

(a)

must require the plaintiff or plaintiffs against whom the order is made to give security for costs in respect of the sum that the court considers sufficient—

(i)

by paying that sum into court; or

(ii)

by giving, to the satisfaction of the Registrar, security for that sum; and

(b)

may stay the proceeding until the sum is paid or the security given, as the case may be.

(4)

The court may treat a plaintiff as being resident out of New Zealand even though the plaintiff is temporarily resident in New Zealand.

(5)

The court may make an order under subclause (2) even if the defendant has taken a step in the proceeding before applying for security.

(6)

References in this rule to a plaintiff or defendant are references to the person (however described on the record) who, because of a document filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.

Compare: SR 2009/257 r 4.20

Subpart 10—Statement of defence and appearance

5.49 Filing and service of statement of defence

(1)

A defendant who intends to defend the proceeding must,—

(a)

within the number of working days stated in the notice of proceeding, file in the registry of the court named in that notice a statement of defence to the plaintiff’s claim; and

(b)

serve a copy of the statement of defence on the plaintiff and any other party.

(2)

Unless otherwise ordered by the court,—

(a)

the place for filing the statement of defence must be the registry of the court in which the statement of claim was filed or into which it has been transferred:

(b)

the time within which the statement of defence is required to be filed is 25 working days after the day on which the statement of claim and notice of proceeding are served on the defendant.

(3)

Subclause (2)(b) is subject to rule 6.31 (which, unless the court otherwise orders, requires a defendant who has been served out of New Zealand to file a statement of defence within 30 working days from the date of service).

(4)

The statement of defence must be accompanied by the list of documents required under rule 8.4 in form 6 (see also rule 8.4 for related requirements to provide copies).

Compare: HCR 5.47

5.50 Requirements of statement of defence

(1)

The statement of defence must either admit or deny the allegations of fact in the statement of claim, but a defendant does not have to plead to an allegation that does not affect that defendant.

(2)

A denial of an allegation of fact in the statement of claim must not be evasive. Points must be answered in substance. If, for example, it is alleged that the defendant received a sum of money, it is not sufficient to deny receipt of the particular amount. Rather, the defendant must deny receipt of that sum or any part of it, or set out how much was received. When a matter is alleged with circumstances it is not sufficient to deny it as alleged with those circumstances. In all cases a fair and substantial answer must be given.

(3)

An allegation not denied is treated as being admitted.

(4)

An affirmative defence must be pleaded.

(5)

The statement of defence must give particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the court, the plaintiff, and any other parties of the defendant’s defence.

Compare: HCR 5.48

5.51 Appearance and objection to jurisdiction

(1)

A defendant who objects to the jurisdiction of the court to hear and determine the proceeding may, within the time allowed for filing a statement of defence and instead of so doing, file and serve an appearance stating the defendant’s objection and the grounds for it.

(2)

The filing and serving of an appearance does not operate as a submission to the jurisdiction of the court.

(3)

A defendant who has filed an appearance may apply to the court to dismiss the proceeding on the ground that the court has no jurisdiction to hear and determine it.

(4)

The court hearing an application under subclause (3) must,—

(a)

if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss the proceeding; but

(b)

if it is satisfied that it has jurisdiction to hear and determine the proceeding, dismiss the application and set aside the appearance.

(5)

At any time after an appearance has been filed, the plaintiff may apply to the court by interlocutory application to set aside the appearance.

(6)

The court hearing that application must,—

(a)

if it is satisfied that it has jurisdiction to hear and determine the proceeding, set aside the appearance; but

(b)

if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss both the application and the proceeding.

(7)

To the extent that an application under this rule relates to service of process effected outside New Zealand under rules 6.23 and 6.24, it must be determined under rule 6.25.

(8)

However, both this rule and rule 6.25 are subject to section 27(1) of the Trans-Tasman Proceedings Act 2010, which provides that a New Zealand court cannot stay a civil proceeding before it on forum grounds connected with Australia otherwise than in accordance with subpart 2 of Part 2 of that Act.

(9)

The court, in exercising its powers under this rule, may do so on any terms and conditions the court thinks just, and, in particular, on setting aside the appearance it may extend the time within which the defendant may file and serve a statement of defence and may give any directions that appear necessary regarding any further steps in the proceeding.

(10)

If the appearance set aside has been filed in relation to a proceeding in which the plaintiff has applied for judgment under rule 12.2 or 12.3, the court—

(a)

must fix the time within which the defendant may file and serve—

(i)

a notice of opposition; and

(ii)

an affidavit by or on behalf of the defendant in answer to the affidavit by or on behalf of the plaintiff; and

(b)

may, under subclause (9), give any other directions that appear necessary regarding any further steps in the proceeding.

Compare: HCR 5.49

5.52 Appearance for ancillary purposes

A defendant who does not oppose the plaintiff’s claim but who wishes to be heard on any ancillary matter (including costs) may, without filing a statement of defence, file and serve an appearance stating those matters, which must not subsequently be determined without notice to that defendant.

Compare: HCR 5.50

5.53 Appearance reserving rights

(1)

This rule applies to a defendant who does not oppose the plaintiff’s claim but who wishes to reserve the defendant’s rights in the event that—

(a)

any other person may become a party to the proceeding; or

(b)

any person, already a party, may take some steps in the proceeding adverse to the defendant’s interests.

(2)

The defendant—

(a)

may, without filing a statement of defence, file and serve an appearance reserving those rights; and

(b)

is subsequently entitled to be served with all documents relevant to the rights so reserved that are filed in the proceeding by a person who is or becomes a party.

(3)

A defendant who has filed an appearance under subclause (2) may at any time, by leave of the court, file and serve a statement of defence and any other document within the time and upon any terms and conditions prescribed by the court when granting leave.

Compare: HCR 5.51

5.54 Forms

Forms 13 to 15 (whichever is appropriate) may be used for the purpose of entering an appearance under rules 5.51 to 5.53.

Compare: HCR 5.52

Subpart 11—Counterclaims

5.55 Counterclaim against plaintiff only

(1)

A defendant who intends to raise a counterclaim against the plaintiff only must file a statement of counterclaim in the registry of the court in which the statement of defence must be filed.

(2)

This rule is subject to rule 5.56.

Compare: HCR 5.53

5.56 Heading of counterclaim

A counterclaim must be headed with the word “Counterclaim”, but in all other respects it must conform with rule 5.14 and the rules applying to statements of claim.

Compare: HCR 5.54

5.57 Filing and service

A counterclaim must be filed in the court and a copy served on the plaintiff within the time stated in the notice of proceeding for filing a statement of defence or, if no such time is stated, within a time fixed by the court.

Compare: HCR 5.55

5.58 Defence to counterclaim

(1)

A plaintiff who intends to defend a counterclaim that has been served must, within 25 working days after the day on which the counterclaim is served, file a statement of defence to it and serve a copy on the defendant.

(2)

The statement of defence must be headed with the words “Defence to Counterclaim”, but in all other respects it must conform with the rules applying to statements of defence.

Compare: HCR 5.56

5.59 Counterclaim against plaintiff and another person

(1)

A defendant who has a counterclaim against the plaintiff along with any other person (whether a party to the proceeding or not) for any relief relating to or connected with the original subject matter of the proceeding may, within the time allowed for filing a statement of defence, file a statement of the counterclaim and serve a copy on the plaintiff and that other person (to be referred to as a counterclaim defendant).

(2)

Subclause (1) is subject to rule 5.63.

(3)

A counterclaim defendant must file a statement of defence to a counterclaim within 25 working days after the day on which the counterclaim was served.

(4)

A notice of proceeding in form 1 must be served with each copy of a counterclaim served under subclause (1).

(5)

Rules 5.55 to 5.58 apply with respect to the counterclaim and any defence to it.

(6)

The court may at any time order that a counterclaim to which subclause (1) applies be struck out, upon such terms as it thinks just, if it appears—

(a)

that, by reason of the counterclaim, the plaintiff is likely to be unduly delayed in obtaining relief; or

(b)

that the trial (if a trial is necessary) is to be held at a place where it could not be held if a counterclaim defendant had been made defendant to an independent proceeding by the defendant in respect of the subject matter of the counterclaim; or

(c)

that the relief sought in the counterclaim is not related to or connected with the original subject matter of the proceeding.

Compare: HCR 5.57

5.60 Place of trial of counterclaim

(1)

A counterclaim must be tried at the same place as the statement of claim in the original proceeding and either simultaneously or immediately afterwards.

(2)

Despite subclause (1), if it appears to the court that a counterclaim and the statement of claim can more fairly or conveniently be tried separately, it may, subject to such conditions as it thinks fit, make an order that the counterclaim be tried at some other place or time.

(3)

Subject to subclauses (1) and (2), after a counterclaim has been served it must proceed in the same manner as if the defendant had commenced an independent proceeding against the plaintiff.

Compare: HCR 5.58

5.61 Status of counterclaim if proceeding stayed

If a defendant sets up a counterclaim against the plaintiff, whether alone or along with any other person, and the proceeding of the plaintiff is stayed, discontinued, or dismissed, that defendant may nevertheless proceed with the counterclaim.

Compare: HCR 5.59

5.62 Counterclaim by counterclaim defendant

(1)

Rules 5.58 to 5.61 apply to a counterclaim by a counterclaim defendant in the same way as if the counterclaim defendant were a defendant in a separate proceeding brought by the defendant.

(2)

In a case referred to in subclause (1), the term defendant includes the counterclaim defendant and the term plaintiff includes the defendant who has joined the counterclaim defendant.

Compare: HCR 5.60

5.63 Restriction when the Crown involved

(1)

In a proceeding by the Crown for the recovery of taxes, duties, or penalties, a defendant is not entitled to advance any set-off or counterclaim.

(2)

In a proceeding of any nature by the Crown, a defendant is not entitled to advance any set-off or counterclaim arising out of a right or claim to payment in respect of any taxes, duties, or penalties.

(3)

In a proceeding by or against the Crown, being a proceeding to which neither subclause (1) nor (2) applies, a defendant is not entitled, without leave of the court, to advance a set-off or counterclaim—

(a)

if the Crown sues or is sued either—

(i)

in the name of the Attorney-General on behalf of a government department or an officer or employee of the Crown; or

(ii)

in the name of a government department or an officer or employee of the Crown; and

(b)

if the subject matter of the set-off or counterclaim does not relate to that department or officer.

(4)

An application for leave under subclause (3) that is made by a defendant other than the Crown must be served on the Crown not less than 5 working days before the date specified for hearing the application.

Compare: HCR 5.61

Subpart 12—Reply

5.64 Duty to file and serve reply

If a statement of defence asserts an affirmative defence or contains any positive allegation affecting any other party, the plaintiff or that other party must, within 10 working days after the day on which that statement of defence is served, file a reply and serve it on every party who has given an address for service.

Compare: HCR 5.62

5.65 Contents of reply

(1)

A reply must be limited to answering the affirmative defence or positive allegation and otherwise must comply with the rules governing statements of defence so far as they are applicable.

(2)

An affirmative defence or positive allegation in a statement of defence that is not denied is treated as being admitted.

Compare: HCR 5.63

Subpart 13—Service of statement of claim, notice of proceeding, and list of documents relied on

5.66 Service generally

(1)

Except as otherwise provided by any Act or these rules or an order made under these rules, a statement of claim and notice of proceeding must be served—

(a)

on every defendant named in it; and

(b)

on every other person directed to be served with it.

(2)

Despite subclause (1), in a civil proceeding against the Crown in which the Attorney-General is named as defendant or is directed to be served on behalf of the Crown or in which the Attorney-General is joined as a party or third or subsequent party, service on the Crown must be effected in accordance with section 16 of the Crown Proceedings Act 1950.

(3)

The plaintiff’s list of documents relied on in form 6 must be served together with the statement of claim.

Compare: HCR 5.70

5.67 Personal service required

(1)

Except when the court directs or these rules require or permit a different mode of service, the statement of claim and notice of proceeding must be served personally.

(2)

Rule 5.69(2) overrides subclause (1).

Compare: HCR 5.71

5.68 Prompt service required

(1)

The statement of claim and notice of proceeding must be served—

(a)

as soon as practicable after they are filed; or

(b)

when directions as to service are sought, as soon as practicable after the directions have been given.

(2)

Unless service is effected within 12 months after the day on which the statement of claim and notice of proceeding are filed or within such further time as the court may allow, the proceeding must be treated as having been discontinued by the plaintiff against any defendant or other person directed to be served who has not been served.

Compare: HCR 5.72

5.69 Extension of time for service

(1)

The plaintiff may, before or after the expiration of the period referred to in rule 5.68, apply to the court for an order extending that period in respect of any person (being a defendant or other person directed to be served) who has not been served.

(2)

The court or the Registrar, if satisfied that reasonable efforts have been made to effect service on that defendant or person, or for other good reason, may extend the period of service for 6 months from the date of the order and so on from time to time while the proceeding has not been disposed of.

Compare: HCR 5.73

5.70 Notice of service to Registrar

(1)

The plaintiff must notify the Registrar of the date of service of the statement of claim and notice of proceeding on each defendant or other person directed to be served.

(2)

Notification under subclause (1) must be made within 7 working days after service and in writing.

Compare: HCR 5.73A

Part 6 Service

Subpart 1—Methods and proof of service

6.1 Methods of service

(1)

Any of the following methods may be used for serving a document that is required by these rules to be served:

(a)

by personal service:

(b)

by service at an address for service given in accordance with these rules:

(c)

by service at an address directed by the court or a Registrar as the address for service for the party or person:

(d)

if the solicitor for the party or person, or the party or person, has, under rule 5.43(5)(a), 5.45(2)(b)(i), or 5.47(1)(e), specified a post office box address, document exchange box number, fax number, or email address,—

(i)

by posting the document to that post office box address; or

(ii)

by leaving the document at a document exchange for direction to that document exchange box number; or

(iii)

by transmitting the document electronically to that fax number or email address:

(e)

if a defendant (as defined in section 4(1) of the Trans-Tasman Proceedings Act 2010) has been served in Australia under section 13 of the Trans-Tasman Proceedings Act 2010 with an initiating document for the proceeding, by posting the document to an address for service of the party or person to be served.

(2)

In any case not provided for by these rules, service must be effected by the method and at the place the court directs.

(3)

This rule does not apply if an Act or a rule requires a special and exclusive method of service.

Compare: HCR 6.1

6.2 Service of copies

Unless an Act or a rule expressly requires an original document to be served, service of a true copy is to be treated as service of the document.

Compare: HCR 6.2

6.3 Notices

Rules 6.1 and 6.2 and rules 6.4 to 6.22 apply to any notice that by these rules, or by any order made under these rules, is required to be given to any person, whether or not that person is a party or the notice is required to be filed in the court.

Compare: HCR 6.3

6.4 Personal service on spouses or partners

(1)

This rule applies when defendants to a proceeding are—

(a)

a married couple; or

(b)

civil union partners; or

(c)

de facto partners.

(2)

Service on one spouse, civil union partner, or de facto partner is not to be treated as service on the other unless the court so orders.

Compare: HCR 6.4

6.5 Service at address for service

A document may be served at an address for service by leaving the document at that address at any time between 9 am and 5 pm.

Compare: HCR 6.5

6.6 Service by means of post office box, document exchange, fax, or email

(1)

When a document is served on a party or person in accordance with rule 6.1(1)(d)(i) or (ii), that document must,—

(a)

if posted to a post office box address, be treated as served on the earlier of—

(i)

the fifth working day after the day on which it was posted; or

(ii)

the day on which it was received; and

(b)

if left at a document exchange, be treated as served on the earlier of—

(i)

the second working day after the day on which it was left; or

(ii)

the day on which it was received.

(2)

A document served on a party or person in accordance with rule 6.1(1)(d)(iii) must—

(a)

be treated as dispatched at the time the electronic communication first enters an information system outside the control of its originator; and

(b)

be treated as received,—

(i)

in the case of a party who has designated an information system for the purpose of receiving electronic communications, at the time the electronic communication enters that information system; or

(ii)

in any other case, at the time the electronic communication comes to the attention of the party or person being served, or the solicitor or other agent of that party or person.

(3)

When a document is received electronically on a day that is not a working day, or after 5 pm on a working day, it must be treated as served on the first subsequent working day.

(4)

When a document is served electronically under this rule, the party or person served must, on receiving the document, immediately give to the person who served the document, or that person’s solicitor or agent, an acknowledgement in writing or electronically—

(a)

that the document has been received; and

(b)

of the date and time of receipt.

(5)

In this rule, information system means a system for producing, sending, receiving, storing, displaying, or otherwise processing electronic communications.

(6)

Subclauses (7) to (11) apply to a document to be served in a proceeding if—

(a)

the proceeding is one an initiating document for which is to be or has been served on a defendant in Australia under section 13 of the Trans-Tasman Proceedings Act 2010; and

(b)

the document is one to be served—

(i)

by a party in New Zealand and on a party in Australia; or

(ii)

by a party in Australia and on a party in New Zealand.

(7)

Despite subclause (1), when a document is served in accordance with rule 6.1(1)(d)(i) or (ii) or (e), it is to be treated as served on the earlier of—

(a)

the eighth working day after the day on which it was posted; and

(b)

the day on which it was received.

(8)

Subclause (9) applies to a document that is—

(a)

a document in response to a requirement of or under these rules; and

(b)

served in accordance with rule 6.1(1)(d)(i) or (ii) or (e).

(9)

The party serving the document is entitled to an extra 5 working days within which to comply with that requirement.

(10)

Despite subclause (8), subclause (9) does not apply when a rule requires a document to be served a prescribed number of days before a hearing or other specified event.

(11)

Despite subclause (3), when a document is, under rule 6.1(1)(d)(iii) transmitted electronically to the fax number or email address of a solicitor in a State or territory of Australia at a time later than 5 pm in that State or territory, it is to be treated as having been served on the first subsequent working day.

Compare: HCR 6.6

Rule 6.6(1)(a)(i): amended, on 1 July 2015, by rule 4(1) of the District Courts Amendment Rules 2015 (LI 2015/103).

Rule 6.6(7)(a): amended, on 1 July 2015, by rule 4(2) of the District Courts Amendment Rules 2015 (LI 2015/103).

6.7 Service under agreement

Service by a method agreed to in writing by a party is sufficient service on that party.

Compare: HCR 6.7

6.8 Substituted service

If reasonable efforts have been made to serve a document by a method permitted or required under these rules, and either the document has not come to the knowledge of the person to be served or it cannot be promptly served, the court or a Registrar may—

(a)

direct—

(i)

that instead of service, specified steps be taken that are likely to bring the document to the notice of the person to be served; and

(ii)

that the document be treated as served on the happening of a specified event, or on the expiry of a specified time:

(b)

when steps have been taken for the purpose of bringing, or which have a tendency to bring, the document to the notice of the person on whom it is required to be served, direct that the document be treated as served on that person on a specified date:

(c)

subject to any conditions that the court thinks just to impose, dispense with service of a document on a person and give to the party by whom the document is required to be served leave to proceed as if the document had been served.

Compare: HCR 6.8

6.9 Notices to be given by Registrar

When notice is required to be given by the Registrar to a person, whether a party or not, it may be given,—

(a)

if the person is acting by a solicitor, by sending it by ordinary post addressed to the solicitor at the address for service (if given) or at the solicitor’s place of business:

(b)

if the person is not acting by a solicitor, by sending it by ordinary post addressed to that person at that person’s address for service (if given) or last known or usual place of residence or business in New Zealand:

(c)

in any other manner the court directs.

Compare: HCR 6.9

6.10 Proof of service

(1)

The service of a document may be proved on oath before the court or by affidavit in form 16.

(2)

If the service of a document is proved by affidavit in form 16, it is unnecessary, unless the court otherwise directs, for a copy of that document to be annexed if—

(a)

either the original of the document or a copy of the document has, at the time of service, been filed in the registry of the court; and

(b)

the affidavit contains a description of the document that—

(i)

is sufficient to enable the document to be identified; and

(ii)

includes the date of the document (if the document is dated).

Compare: HCR 6.10

6.11 Personal service

A document may be personally served by leaving the document with the person to be served, or, if that person does not accept it, by putting it down and bringing it to the notice of that person.

Compare: HCR 6.11

Subpart 2—Corporations, partners, attorneys, and agents

6.12 Personal service on New Zealand corporations

(1)

A document may be served on a company incorporated under the Companies Act 1993 in accordance with section 387 of that Act.

(2)

A document may be served on a corporation incorporated in New Zealand other than a company incorporated under the Companies Act 1993

(a)

by service in accordance with rule 6.11 on—

(i)

the mayor, chairman, president, town clerk, managing director, secretary, treasurer, or other similar officer of the corporation; or

(ii)

any member, officer, or employee of the corporation at the corporation’s head office or principal place of business; or

(b)

by leaving the document at the corporation’s registered office; or

(c)

by serving the document on a member, officer, or employee of the corporation in any manner that the court directs; or

(d)

by complying with any enactment that provides for service of a document on a corporation.

Compare: HCR 6.12

6.13 Personal service in New Zealand on foreign corporations

(1)

An overseas company (within the meaning of section 2(1) of the Companies Act 1993) that is served in New Zealand must be personally served in accordance with section 389 of the Companies Act 1993.

(2)

A corporation (other than an overseas company within the meaning of section 2(1) of the Companies Act 1993) may be served in New Zealand in accordance with rule 6.11 by service on a person appearing to have control of the business of that corporation at the principal or only place of business of that corporation in New Zealand if the corporation—

(a)

is incorporated outside New Zealand; and

(b)

has a place or places of business in New Zealand.

Compare: HCR 6.13

6.14 Personal service on Australian corporations, partnerships, and attorneys

A document in a proceeding in which an initiating document is to be or has been served on a defendant under section 13 of the Trans-Tasman Proceedings Act 2010 may be served in Australia—

(a)

on a company registered in Australia under the Corporations Act 2001 (Aust) in the same way as if it were a company to which section 387 of the Companies Act 1993 applies:

(b)

on a corporation incorporated in Australia (other than a company specified in paragraph (a)) in the same way as if it were a corporation to which rule 6.12(2) applies:

(c)

on a partnership, or on a person carrying on business in the name of a firm apparently consisting of more than 1 person, by serving it in accordance with rule 6.11 either on any partner or on that person, or—

(i)

on any person appearing to have control of the business of the partnership or apparent partnership; and

(ii)

at the principal place in Australia of the business of the partnership or apparent partnership:

(d)

on a person who is out of Australia and New Zealand by serving, in accordance with rule 6.11, an attorney or agent of the person in Australia if the attorney or agent is authorised—

(i)

to transact that person’s affairs generally and to defend proceedings; or

(ii)

to transact the person’s affairs in respect of the subject matter of the proceeding and to defend the particular proceeding.

Compare: HCR 6.13A

6.15 Personal service in Australia on foreign corporations

(1)

A document in a proceeding in which an initiating document is to be or has been served on a defendant under section 13 of the Trans-Tasman Proceedings Act 2010 may be served in Australia—

(a)

on a foreign company registered under section 601CE of the Corporations Act 2001 (Aust) as follows:

(i)

by delivery to a person named in the register kept for the purposes of Division 2 of Part 5B.2 of that Act as a director of the foreign company and who is resident in Australia; or

(ii)

by delivery to a person named in that register as being authorised to accept service in Australia of documents on behalf of that foreign company; or

(iii)

by delivery to an employee of the foreign company at the foreign company’s place of business in Australia or, if the foreign company has more than 1 place of business in Australia, at the foreign company’s principal place of business in Australia; or

(iv)

by serving it in accordance with any directions as to service given by the court having jurisdiction in the proceeding; or

(v)

in accordance with an agreement made with the foreign company:

(b)

on a foreign corporation of the kind specified in subclause (2) by serving it in accordance with rule 6.11

(i)

on a person appearing to have control of the business of that corporation; and

(ii)

at the principal place of business of that corporation in Australia.

(2)

Subclause (1)(b) applies to a foreign corporation that—

(a)

is not a foreign corporation registered under section 601CE of the Corporations Act 2001 (Aust); and

(b)

is incorporated but not in Australia and not in New Zealand; and

(c)

has a place of business in Australia; and

(d)

does not have a place of business in New Zealand.

Compare: HCR 6.13B

6.16 Personal service on unincorporated societies

A document may be served on an unincorporated society by serving the president, chairperson, secretary, or any similar officer of the society under rule 6.11.

Compare: HCR 6.14

6.17 Personal service on partnership or apparent partnership

A document may be served on a partnership or on a person carrying on business in the name of a firm apparently consisting of more than 1 person by serving it in accordance with rule 6.11

(a)

on any partner or on that person; or

(b)

at the principal place in New Zealand of the business of the partnership or apparent partnership, on any person appearing to have control of the business there.

Compare: HCR 6.15

6.18 Personal service on attorney or agent of absentee

A document may be served on a person who is out of New Zealand by serving, in accordance with rule 6.11, an attorney or agent of that person in New Zealand if the attorney or agent is authorised—

(a)

to transact that person’s affairs generally and to defend proceedings; or

(b)

to transact that person’s affairs in respect of the subject matter of the proceeding and to defend the particular proceeding.

Compare: HCR 6.16

6.19 Service on representatives

(1)

This rule applies to a person (a representative) who—

(a)

is appointed by the court to represent any person or persons, or any class of persons; or

(b)

sues or defends on behalf of himself or herself and any other person or persons.

(2)

Service on the representative is to be treated as service on behalf of all persons whom the representative has been appointed to represent or on whose behalf the representative sues or defends.

Compare: HCR 6.17

6.20 Service on solicitor

A document is treated as served on a person on the date on which the solicitor for that person signs on a copy of the document a note accepting service of it, or a proved earlier date.

Compare: HCR 6.18

6.21 Service of statement of claim on certain days void

A statement of claim must not be served on Christmas Day, New Year’s Day, or Good Friday.

Compare: HCR 6.19

6.22 Failure to give address for service

A party to a contentious proceeding who has not given an address for service is not entitled to be served with notice of any step in the proceeding or with copies of any further documents filed in the proceeding or to address the court.

Compare: HCR 6.20

Subpart 3—Service out of New Zealand

6.23 When allowed without leave

(1)

This rule applies to a document that initiates a civil proceeding, or is a notice issued under subpart 4 of Part 4 (Third, fourth, and subsequent parties), that under these rules is required to be served but cannot be served in New Zealand under these rules (an originating document).

(2)

An originating document may be served out of New Zealand without leave in the following cases:

(a)

when a claim is made in tort and—

(i)

any act or omission in respect of which damage was sustained was done or occurred in New Zealand; or

(ii)

the damage was sustained in New Zealand:

(b)

when a contract sought to be enforced or rescinded, dissolved, annulled, cancelled, otherwise affected or interpreted in any proceeding, or for the breach of which damages or other relief is demanded in the proceeding,—

(i)

was made or entered into in New Zealand; or

(ii)

was made by or through an agent trading or residing within New Zealand; or

(iii)

was to be wholly or in part performed in New Zealand; or

(iv)

was by its terms or by implication to be governed by New Zealand law:

(c)

when there has been a breach in New Zealand of any contract, wherever made:

(d)

when the claim is for—

(i)

a permanent injunction to compel or restrain the performance of any act in New Zealand; or

(ii)

interim relief in support of judicial or arbitral proceedings commenced or to be commenced outside New Zealand:

(e)

when the subject matter of the proceeding is land or other property situated in New Zealand, or any act, deed, will, instrument, or thing affecting such land or property:

(f)

when any relief is sought against any person domiciled or ordinarily resident in New Zealand:

(g)

when any person out of the jurisdiction is—

(i)

a necessary or proper party to proceedings properly brought against another defendant served or to be served (whether within New Zealand or outside New Zealand under any other provision of these rules), and there is a real issue between the plaintiff and that defendant that the court ought to try; or

(ii)

a defendant to a claim for contribution or indemnity in respect of a liability enforceable by proceedings in the court:

(h)

when the claim arises under an enactment and—

(i)

any act or omission to which the claim relates was done or occurred in New Zealand; or

(ii)

any loss or damage to which the claim relates was sustained in New Zealand; or

(iii)

the enactment applies expressly or by implication to an act or omission that was done or occurred outside New Zealand in the circumstances alleged; or

(iv)

the enactment expressly confers jurisdiction on the court over persons outside New Zealand (in which case any requirements of the enactment relating to service must be complied with):

(i)

when the person to be served has submitted to the jurisdiction of the court.

Compare: HCR 6.27

6.24 When allowed with leave

(1)

In any proceeding in which service is not allowed under rule 6.23, an originating document may be served out of New Zealand with the leave of the court.

(2)

An application for leave under this rule must be made on notice to every party other than the party intended to be served.

(3)

A sealed copy of every order made under this rule must be served with the document to which it relates.

(4)

An application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction under rule 6.25, including the place or country in which the person to be served is or possibly may be found, and whether or not the person to be served is a New Zealand citizen.

(5)

The court may grant an application for leave if the applicant establishes that—

(a)

the claim has a real and substantial connection with New Zealand; and

(b)

there is a serious issue to be tried on the merits; and

(c)

New Zealand is the appropriate forum for the trial; and

(d)

any other relevant circumstances support an assumption of jurisdiction.

Compare: HCR 6.28

6.25 Court’s discretion whether to assume jurisdiction

(1)

If service of process has been effected out of New Zealand without leave, and the court’s jurisdiction is objected to under rule 5.51, the court must dismiss the proceeding unless the party effecting service establishes—

(a)

that—

(i)

there is a good arguable case that the claim falls wholly within 1 or more of the paragraphs of rule 6.23(2); and

(ii)

the court should assume jurisdiction by reason of the matters set out in rule 6.24(5)(b) to (d); or

(b)

that, had the party applied for leave under rule 6.24,—

(i)

leave would have been granted; and

(ii)

it is in the interests of justice that the failure to apply for leave should be excused.

(2)

If service of process has been effected out of New Zealand under rule 6.24, and the court’s jurisdiction is objected to under rule 5.51, and it is claimed that leave was wrongly granted under rule 6.24, the court must dismiss the proceeding unless the party effecting service establishes that in the light of the evidence now before the court leave was correctly granted.

(3)

When service of process has been validly effected within New Zealand, but New Zealand is not the appropriate forum for trial of the action, the defendant may apply for a stay, or for a dismissal of the proceeding under rule 15.1.

Compare: HCR 6.29

6.26 Service of other documents outside New Zealand

Any document other than an originating document required by any rule to be served personally may be served abroad with the leave of the court, which may be given with any directions that the court thinks just.

Compare: HCR 6.30

6.27 Notice to defendant served outside New Zealand

If a defendant is to be served out of New Zealand, the memorandum required by rule 5.26(4) must also include a notice, which may be in HCF G 6, informing the defendant of—

(a)

the scope of the jurisdiction of the court in respect of claims against persons who are not resident in New Zealand; and

(b)

the grounds alleged by the plaintiff in relying on that jurisdiction; and

(c)

the defendant’s right to enter an appearance and objection to the jurisdiction of the court under rule 5.51.

Compare: HCR 6.31

6.28 Service outside New Zealand

(1)

An originating document permitted under these rules to be served outside New Zealand may be served by a method—

(a)

specified in rule 6.1; or

(b)

permitted by the law of the country in which it is to be served; or

(c)

provided for in rules 6.29 and 6.30.

(2)

Subclause (1) is subject to subclauses (3) and (4).

(3)

When a convention relating to service of process is in force between New Zealand and the country where service is to be effected, service must be effected in accordance with a method provided for, or permitted by, that convention.

(4)

No service outside New Zealand is valid if effected contrary to the law of the country where service is effected.

Compare: HCR 6.32

6.29 Service through official channels

(1)

When a party seeks service outside New Zealand through official channels, the request must be sent by the Registrar to the Secretary for Justice, who must forward it to the Secretary of Foreign Affairs and Trade for further transmission to the appropriate authorities in the foreign country.

(2)

Proof of service must be returned to the Registrar through the same channels.

(3)

In respect of each person to be served, the request for service must be accompanied by—

(a)

the document to be served; and

(b)

a copy of the document to be exhibited to the evidence verifying service; and

(c)

when the language of the person to be served is not English,—

(i)

a translation of the document into the language (verified as correct to the satisfaction of the Registrar) of the person to be served for service with the document; and

(ii)

a copy of that translation, which must be exhibited to the evidence verifying service.

(4)

A certificate establishing the fact and date of service and given by the competent authority of the country concerned, or by a New Zealand consular officer, is sufficient proof of that fact and date.

(5)

This rule is subject to any relevant convention that requires or permits any other method of service through official channels.

Compare: HCR 6.33

6.30 Service in convention countries

(1)

This rule applies when—

(a)

a convention is in force between New Zealand and any other country relating to the service of documents in proceedings in the courts of the respective countries; and

(b)

a party to a proceeding in New Zealand desires to take advantage of any provision made in the convention for service in that other country by official means.

(2)

When this rule applies, the party seeking service may file a request in HCF G 18 stating the official means of service desired and containing the undertaking set out in that form covering the payment of expenses.

(3)

Subclause (2) is subject to the provisions of the convention.

(4)

In respect of each person to be served, the request for service must be accompanied by—

(a)

the document to be served; and

(b)

a copy of it exhibited to the evidence verifying service; and

(c)

when the language of the person to be served is not English,—

(i)

a translation of the document into his or her language (verified as correct to the satisfaction of the Registrar) for service with the document; and

(ii)

a copy of that translation to be exhibited to the evidence verifying service.

(5)

The document and translation to be served must be sealed by the Registrar with the seal of the court and the documents required to accompany the request for service forwarded by the Registrar to the Secretary for Justice for transmission through the appropriate channels to the country concerned for service in accordance with the request for service.

(6)

A certificate establishing the fact and date of service and given by the competent authority of the country concerned, or by a British or New Zealand consular officer, and transmitted by the Secretary for Justice to the Registrar is sufficient proof of that service.

(7)

A certificate filed by the Registrar is equivalent to an affidavit of service of the documents referred to in the certificate.

Compare: HCR 6.34

6.31 Time for filing defence

Except when the court otherwise orders, a defendant (as defined in section 4(1) of the Trans-Tasman Proceedings Act 2010) who has been served out of New Zealand must file a statement of defence or appearance within 30 working days from the date of service.

Compare: HCR 6.35

6.32 Subpart does not apply to service in Australia of documents for or in certain trans-Tasman proceedings

This subpart (which contains rules on service out of New Zealand) does not apply to service in Australia of an initiating document for, or of any other document to be served in or for, a proceeding an initiating document for which may be served in Australia under subpart 1 of Part 2 of the Trans-Tasman Proceedings Act 2010.

Compare: HCR 6.36

Part 7 Case management

Subpart 1—Case management

7.1 Proceedings subject of case management

(1)

Case management in accordance with this subpart will be applied to proceedings in order to promote their just, speedy, and inexpensive determination.

(2)

The purpose of a case management conference is to enable the Judge to assist the parties—

(a)

to identify, define, and refine the issues requiring judicial resolution; and

(b)

to determine what steps need to be taken in order to prepare the proceeding for hearing or trial; and

(c)

to decide how best to facilitate the conduct of the hearing or trial; and

(d)

to ensure that the costs of the proceeding are proportionate to the subject matter of the proceeding.

Compare: HCR 7.1(1), (3)

7.2 First case management conference

(1)

This rule applies unless—

(a)

no statement of defence has been filed in a proceeding and no other response prescribed or otherwise required by these rules has been filed in a proceeding; or

(b)

the procedure is an application for summary judgment.

(2)

Unless otherwise ordered by a Judge, the first case management conference for the proceeding must be held on a date fixed by the Registrar that is the first available date not less than 25 working days after the date when the first statement of defence is filed in the proceeding, but, in any event, not less than 50 working days after the filing of the proceeding.

(3)

The agenda for the conference is—

(a)

the matters set out in Part A of Schedule 3 (with any adaptations ordered by the Judge for the purposes of that conference); and

(b)

the hearing, and if practicable the disposal, of any outstanding interlocutory application; and

(c)

determining in accordance with rule 10.1 whether the mode of trial is to be a short trial; and

(d)

if a short trial is not allocated, directing that a judicial settlement conference under rule 7.3 must be held as soon as practicable after disposal of the matters referred to in paragraphs (a) and (b) unless—

(i)

the Judge directs otherwise; or

(ii)

the parties agree to participate in alternative dispute resolution; and

(e)

other appropriate matters that have already been discussed by the parties.

(4)

The parties must either file a joint memorandum addressing the Part A of Schedule 3 matters and the other matters referred to in subclause (3) no later than 10 days before the conference, or file separate memoranda addressing those matters in accordance with subclause (5).

(5)

If separate memoranda are filed, the plaintiff or applicant must file the first memorandum stating that party’s position on the matters in Part A of Schedule 3 and the other matters referred to in subclause (3). That memorandum must be filed 10 working days before the conference, followed no later than 5 working days before the conference by memoranda from the other parties, each memorandum stating the party’s agreement or disagreement with memoranda already filed and, in the case of disagreement, the reasons for disagreement and the different position contended for.

(6)

Memoranda filed under subclause (4) or (5) may also address matters that fall within subclause (3)(e).

(7)

Any memorandum under this subpart may be filed by fax or email transmission.

Compare: HCR 7.3

Rule 7.2(1): replaced, on 1 January 2015, by rule 6 of the District Courts Amendment Rules 2014 (LI 2014/347).

Rule 7.2(7): inserted, on 1 July 2015, by rule 5 of the District Courts Amendment Rules 2015 (LI 2015/103).

7.3 Judicial settlement conference

(1)

This rule applies unless—

(a)

in any case—

(i)

no statement of defence has been filed in a proceeding; and

(ii)

no other response prescribed or otherwise required by these rules has been filed in a proceeding; or

(b)

the court orders that a short trial is to be held before a date is set for a judicial settlement conference.

(2)

The purpose of a judicial settlement conference is to give the parties to the proceeding an opportunity to negotiate a settlement of the claim or any issue.

(3)

The parties must file and serve on the other parties copies of their will say statements and a memorandum identifying the issues and any settlement negotiations at least 10 working days before the date set for the conference.

(4)

Will say statements and the memorandum required by subclause (3) that are produced at a judicial settlement conference are not admissible at any trial of the proceeding.

(5)

A judicial settlement conference must be convened by a Judge and held in chambers.

(6)

A Judge who convenes a judicial settlement conference may assist the parties in their negotiations, but that Judge must not preside at the trial (if any) unless—

(a)

all parties taking part in the conference consent; or

(b)

the only matter for resolution at the hearing is a question of law.

(7)

A proceeding is treated as having been discontinued 30 working days after the date on which the Judge endorses the proceeding as having been settled, unless—

(a)

the parties, by notice to the Judge given before the close of that 30-day period, consent to an extension of that period, and in that case the Judge must direct accordingly and the discontinuance takes effect on the close of that extended period; or

(b)

in any other case, the Judge, in the interests of justice, directs that the proceeding be discontinued with effect on and after some other date stated by the Judge.

(8)

If the Judge assisting the parties at a judicial settlement conference is satisfied that the parties are unable to settle the claim or issue, the Judge must, as soon as practicable,—

(a)

indicate that he or she has formed that view; and

(b)

adjourn the proceeding to a second case management conference under rule 7.4.

(9)

The court may order any proceeding treated as having been discontinued under subclause (7) to be reinstated on good cause shown by either party and on any terms it thinks just.

7.4 Second case management conference

(1)

Unless otherwise ordered by a Judge, no later than 10 working days after a judicial settlement conference is held under rule 7.3, the Registrar must fix the date for the second case management conference for the proceeding.

(2)

The agenda for the second case management conference is set out in Part B of Schedule 3.

(3)

The parties must either file a joint memorandum addressing the Part B of Schedule 3 matters no later than 10 working days before the conference, or file separate memoranda addressing those matters in accordance with this rule.

(4)

If separate memoranda are filed, the plaintiff or applicant must file the first memorandum stating that party’s position on the matters in Part B of Schedule 3. That memorandum must be filed no later than 10 working days before the conference, followed no later than 5 working days before the conference by memoranda from the other parties, each memorandum stating the party’s agreement or disagreement with memoranda already filed, and, in the case of disagreement, the reasons for disagreement and the different position contended for.

(5)

The joint memorandum referred to in subclause (3) may be combined with any joint memorandum filed in relation to discovery under rule 8.11.

(6)

A separate memorandum referred to in subclause (4) may be combined with any separate memorandum filed in relation to discovery under rule 8.11.

(7)

The second case management conference may be adjourned if the Judge declines to certify that the proceeding is ready for allocation of a hearing or trial date by the Registrar.

(8)

It is the duty of all parties to a proceeding for which a date for hearing or trial has been allocated to notify the Registrar, without delay, if the proceeding is settled.

7.5 Additional case management conferences

(1)

In addition to case management conferences under rules 7.2 and 7.4, a Judge—

(a)

may hold a case management conference at any time:

(b)

must hold a case management conference if rule 5.4(2)(a) applies.

(2)

A case management conference may be convened by a Judge on the Judge’s own initiative or on the application of 1 or more of the parties.

7.6 Steps after close of pleadings date restricted

(1)

No statement of defence or amended pleading or affidavit may be filed, and no interlocutory application may be made or step taken, after the close of pleadings date without the leave of a Judge.

(2)

Subclause (1) does not apply to—

(a)

an application for leave under that subclause; or

(b)

a pleading or an affidavit that merely brings up to date the information before the court; or

(c)

an application for an amendment under rule 1.12.

Compare: HCR 7.7

7.7 Cancellation of case management conference

A Judge may cancel a case management conference if, after reading the memoranda prepared for the conference, the Judge is satisfied that the parties have achieved the goals of this subpart and, in particular, that they have—

(a)

identified, defined, and refined the issues requiring judicial resolution; and

(b)

completed all steps needed to prepare the proceeding for hearing or trial; and

(c)

devised an efficient way of conducting the hearing or trial that is proportionate to the subject matter.

Compare: HCR 7.9

7.8 Limitation of right of appeal

(1)

The parties may agree to exclude or limit any right of appeal from any judgment or order made in the proceeding.

(2)

Any agreement under subclause (1) may be recorded on the court file in any form the Judge directs.

Compare: HCR 7.10

7.9 Timetable and monitoring obligations

The Registrar must—

(a)

arrange the date of the first, second, and any subsequent case management conferences held under these rules:

(b)

remind parties or their counsel of the timetable obligations associated with any case management or pretrial conference:

(c)

communicate with parties or their counsel who have a duty to file a memorandum or other documents and remind them of that duty.

Compare: HCR 7.11

7.10 Lists of proceedings

The Registrar must cause the following lists to be kept:

(a)

a list of proceedings that have been allocated a hearing or trial date; and

(b)

a list of proceedings that have had their first case management conference but have not been allocated a date for hearing or trial.

Compare: HCR 7.12

7.11 Registrar’s functions in relation to hearing dates

(1)

After a Judge or Registrar has allocated a hearing or trial date for a proceeding, the Registrar must promptly—

(a)

record the proceeding in the list kept under rule 7.10(a); and

(b)

record the hearing date and the close of pleadings date in that list; and

(c)

give written confirmation of both dates to all parties to the proceeding.

(2)

The performance of the Registrar’s functions under this rule is subject to any direction by a Judge.

Compare: HCR 7.13

Subpart 2—Interlocutory applications and interlocutory orders

7.12 Contents, form, and filing of interlocutory application

(1)

An interlocutory application must—

(a)

state the relief sought and the grounds justifying that relief; and

(b)

refer to any particular enactments or principles of law or judicial decisions on which the applicant relies.

(2)

The application need not ask for general or other relief.

(3)

The application is made by filing it in the court.

(4)

The application must be in form 17 or 18.

(5)

This subpart applies to the application.

Compare: HCR 7.19

7.13 Affidavit to be filed with application

Any affidavit in support of the application must be filed at the same time as the application.

Compare: HCR 7.20

7.14 Filing by post

(1)

An applicant may post an application and related documents together with the applicable fee to the Registrar at the proper registry.

(2)

A posted application is filed when that Registrar receives it with the applicable fee.

(3)

The Registrar must acknowledge the receipt of all documents sent by post and notify the applicant of the hearing date (if any) allocated for the application.

(4)

If the application is made without notice and does not require any attendance by or on behalf of the applicant, the Registrar must notify the applicant of the result of the application.

Compare: HCR 7.21

7.15 Service of application and supporting affidavit

(1)

After filing an application and any affidavit in support of it, the applicant must promptly serve a copy of the application and affidavit on every party.

(2)

After the applicant is notified of the hearing date for the application, the applicant must promptly notify every respondent of the hearing date.

(3)

This rule does not apply to an application made without notice in accordance with rule 7.16.

Compare: HCR 7.22

7.16 Application without notice

(1)

If the applicant wishes the application to be determined without any other party being served (in these rules referred to as an application without notice), the applicant must use form 18.

(2)

An application without notice must contain a certificate that—

(a)

uses the words “I certify that this application complies with the rules”; and

(b)

is personally signed by the applicant’s lawyer.

(3)

The lawyer who signs the certificate must, before signing it, be personally satisfied that—

(a)

the application and every affidavit filed in support of it complies with these rules:

(b)

the order sought is one that ought to be made:

(c)

there is a proper basis for seeking the order in an application without notice.

(4)

The lawyer is responsible to the court for those matters.

(5)

Despite subclause (2), a Judge may dispense with the certificate if the applicant is unrepresented and justice so requires, and if dispensation is sought, the applicant must state the reasons for the absence of a lawyer’s certificate.

Compare: HCR 7.23

7.17 Notice of opposition to application

(1)

A respondent who intends to oppose an application must file and serve on every other party a notice of opposition to the application within—

(a)

the period of 10 working days after being served with the application; or

(b)

if the hearing date for the application is within that period, 3 working days before the hearing date.

(2)

The notice of opposition must—

(a)

state the respondent’s intention to oppose the application and the grounds of opposition; and

(b)

refer to any particular enactments or principles of law or judicial decisions on which the respondent relies.

(3)

The notice of opposition must be in form 19.

Compare: HCR 7.24

7.18 Affidavit to be filed with notice of opposition

Any affidavit setting out evidence in opposition to the application must be filed and served at the same time as the notice of opposition.

Compare: HCR 7.25

7.19 Affidavit in reply

(1)

Any reply by the applicant to the respondent’s notice of opposition or affidavit must be by affidavit, which must be filed and served—

(a)

within the period of 5 working days after service of the notice of opposition; or

(b)

if the hearing date for the application is within that period, by 1 pm on the working day before that hearing date.

(2)

The affidavit in reply must be limited to new matters raised in the notice of opposition or in an affidavit filed by the respondent.

Compare: HCR 7.26

7.20 Evidence normally given by affidavit

(1)

Evidence relating to interlocutory applications is given by affidavit.

(2)

Despite subclause (1), in special circumstances, a Judge may accept oral evidence.

Compare: HCR 7.27

7.21 Cross-examination of maker of affidavit

A Judge may in special circumstances, on the application of a party, order the attendance for cross-examination of a person who has made an affidavit in support of, or in opposition to, an interlocutory application.

Compare: HCR 7.28

7.22 Rules governing affidavits

Rules 9.65 to 9.78 apply, with all necessary modifications, to affidavits filed for interlocutory applications.

Compare: HCR 7.29

7.23 Statements of belief in affidavits

(1)

A Judge may accept statements of belief in an affidavit in which the grounds for the belief are given if—

(a)

the interests of no other party can be affected by the application; or

(b)

the application concerns a routine matter; or

(c)

it is in the interests of justice.

(2)

Subclause (1) overrides rule 7.22.

Compare: HCR 7.30

7.24 When admissions binding

An admission of a fact expressly made only for the purpose of an application binds the party only for the application.

Compare: HCR 7.31

7.25 Previous affidavits and agreed statements of fact

(1)

Affidavits already filed in the court and agreed statements of fact, if made in the same proceeding or, with the leave of a Judge, in any other proceeding between the same parties, may be used on the disposal of any application if—

(a)

prior notice of the intention to use them has been given to the opposite party (whether in the notice of application or in the notice of opposition or otherwise); or

(b)

in the case of an application without notice, they are referred to in the notice of application.

(2)

Subclause (1) does not apply to an affidavit or to an agreed statement to the extent that the affidavit or statement contains any admission of the kind described in rule 7.24.

Compare: HCR 7.32

7.26 Allocation of hearing date

On or following the filing of an application (other than an application without notice), the Registrar must allocate a hearing date for the application.

Compare: HCR 7.33

7.27 Mode of hearing

(1)

An interlocutory application for which a hearing is required must be heard in chambers unless a Judge otherwise directs.

(2)

On the Judge’s own initiative or on the application of 1 or more of the parties, the Judge may conduct a hearing in chambers by telephone or video link.

Compare: HCR 7.34

7.28 Publication about hearing in chambers

Particulars of the hearing in chambers of an interlocutory application or of the decision or both (including the reasons for the decision) may be published unless a Judge or Registrar, exercising jurisdiction in chambers, otherwise directs.

Compare: HCR 7.35

7.29 Application for summary judgment to be heard in open court

Despite rule 7.27(1), every application for summary judgment must be heard in open court.

Compare: HCR 7.36

7.30 No hearing required if respondents consent or do not oppose

(1)

Subclause (2) applies if each respondent to an interlocutory application has stated on the application or in a memorandum filed in the court that the respondent consents to, or does not oppose, the orders sought in the application.

(2)

A Judge may—

(a)

make the orders sought without holding a hearing; or

(b)

direct that the application be heard on the hearing date allocated under rule 7.26.

(3)

If the Judge makes the orders without holding a hearing, the Registrar must promptly advise the parties of the orders made and the cancellation of the hearing date.

Compare: HCR 7.37

7.31 Respondent who consents, or who does not oppose, need not attend hearing

(1)

If a hearing of an interlocutory application is held, a respondent need not attend the hearing if the respondent consents to, or does not oppose, the application and has notified the court in writing.

(2)

Subclause (1) does not apply if, on the hearing date allocated for the interlocutory application, a case management conference is also due to be held.

Compare: HCR 7.38

7.32 Synopsis of argument

(1)

This rule applies to a defended interlocutory application unless, or to the extent that, a Judge directs otherwise.

(2)

The applicant must file and serve a synopsis of argument (synopsis) on every other party,—

(a)

if the respondent has filed a notice of opposition under rule 7.17(1)(a), at least 3 working days before the hearing of the interlocutory application; or

(b)

if the respondent has filed a notice of opposition under rule 7.17(1)(b), at least 2 working days before the hearing of the interlocutory application.

(3)

The applicant’s synopsis must—

(a)

identify the general nature of the case:

(b)

include a chronology of the material facts:

(c)

outline the applicant’s principal submissions:

(d)

be accompanied by or have annexed to it—

(i)

an indexed and paginated set of relevant documents; and

(ii)

a list of authorities.

(4)

The material required to be included in the applicant’s synopsis under subclause (3)(a) to (c) must not exceed 10 pages.

(5)

The respondent must, at least 1 working day before the hearing, file and serve a synopsis on every other party.

(6)

The respondent’s synopsis must—

(a)

identify any material facts that are not referred to in the applicant’s synopsis:

(b)

state any facts that are disputed:

(c)

outline the respondent’s principal submissions:

(d)

be accompanied by or have annexed to it—

(i)

an indexed and paginated set of any relevant documents not included in the applicant’s synopsis; and

(ii)

a list of any authorities not included in the applicant’s synopsis.

(7)

The material required to be included in the respondent’s synopsis under subclause (6)(a) to (c) must not exceed 10 pages.

Compare: HCR 7.39

7.33 Failure to attend

(1)

If a party is neither present nor represented at the hearing of an application, the Judge may—

(a)

determine the application in the party’s absence in any manner that appears just; or

(b)

adjourn the application; or

(c)

strike out the application.

(2)

If an order determining an application is made in the absence of a party, a Judge may, if the Judge thinks it just to do so, recall the order at any time before a formal record of it has been drawn up and sealed.

(3)

A Judge may, in any manner that the Judge thinks just, reinstate an application that has been struck out for non-appearance.

(4)

A Judge may make a determination referred to in subclause (2) or (3) on the Judge’s own initiative or on the application of a party.

(5)

Notice of an application under subclause (4) must be filed and served,—

(a)

if it is made by a party who was present or represented at the hearing, within 5 working days after the hearing:

(b)

if it is made by a party who was neither present nor represented, within 5 working days after receipt by the party of notice of the decision given at the hearing.

Compare: HCR 7.40

7.34 Certain applications may be made orally at hearing

(1)

At a hearing, the Judge may agree to hear an oral application for an interlocutory order if—

(a)

all parties interested consent to the order sought; or

(b)

these rules permit the application to be made without filing a notice of the application; or

(c)

the order sought has been outlined in a memorandum filed for a case management conference, and no party will be unduly prejudiced by the absence of a formal notice of the application; or

(d)

because of the nature of the order sought, no party will be unduly prejudiced by the absence of a formal notice.

(2)

If the Judge agrees to hear an oral application, the Judge may make any interlocutory order or grant any interlocutory relief the Judge could have made or granted on a formal notice of the application.

(3)

This rule overrides rule 7.12.

Compare: HCR 7.41

7.35 Adjournment

The hearing of an application may, from time to time, be adjourned on any terms that the Judge thinks just.

Compare: HCR 7.42

7.36 Making of interlocutory orders

(1)

A Judge may make any interlocutory order that—

(a)

is provided for in these rules; or

(b)

may be made under rule 1.11.

(2)

An interlocutory order may be made—

(a)

on the interlocutory application of a party; or

(b)

on a Judge’s own initiative.

(3)

Before making an order under subclause (2)(b), the Judge must give the parties an opportunity to be heard.

Compare: HCR 7.43

7.37 Power to grant interlocutory order or interlocutory relief

A Judge may make any interlocutory order or grant any interlocutory relief the Judge thinks just, even though the order or relief has not been specifically claimed and there is no claim for general or other relief.

Compare: HCR 7.44

7.38 Interlocutory orders may be made subject to conditions

A Judge may make an interlocutory order subject to any just terms or conditions, including, without limitation, any condition that—

(a)

a party give an undertaking:

(b)

the order operate only for a specified period.

Compare: HCR 7.45

7.39 Determination of application without notice

(1)

The Registrar must refer an application without notice to a Judge for direction or decision.

(2)

The Judge, on receiving an application without notice, must determine whether the application can properly be dealt with without notice.

(3)

The Judge may determine that an application can properly be dealt with without notice only if the Judge is satisfied that—

(a)

requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant; or

(b)

the application affects only the applicant; or

(c)

the application relates to a routine matter; or

(d)

an enactment expressly permits the application to be made without serving notice of the application; or

(e)

the interests of justice require the application to be determined without serving notice of the application.

(4)

If the Judge determines that the application can properly be dealt with without notice, the Judge may—

(a)

make the order sought in the application; or

(b)

make any other order that the Judge thinks just in the circumstances; or

(c)

dismiss the application.

(5)

If the Judge determines that the application cannot properly be dealt with without notice, the Judge may—

(a)

give directions as to service and adjourn the determination of the application until the application has been served on persons who are affected by the application; or

(b)

if the Judge considers that the application has no chance of success, dismiss the application.

Compare: HCR 7.46

7.40 Drawing up and sealing interlocutory order

(1)

A party may draw up an interlocutory order and submit it to the Registrar for sealing.

(2)

Despite subclause (1), a party who obtains an interlocutory order must draw up the order and submit it to the Registrar for sealing if the order—

(a)

affects a person who is not a party; or

(b)

joins a person as a party; or

(c)

directs that it be served on a person.

(3)

If a party elects to have an order sealed, or is required by the court or by these rules to have an order sealed, the following provisions apply:

(a)

the party must file an original order together with sufficient copies so that the party and the other parties who have given an address for service can each receive a duplicate sealed order:

(b)

the order must be in form 20:

(c)

the order must specify both the date on which it was made and the date on which it was sealed:

(d)

the Registrar, when satisfied with the form of the order, must sign and seal the original and every copy:

(e)

the Registrar must mark every copy with the word “duplicate”:

(f)

the Registrar must retain the original on the file:

(g)

the party who submitted the order for sealing must promptly serve a sealed copy on every other party who has given an address for service and on any person affected by the order.

Compare: HCR 7.47

7.41 Enforcement of interlocutory order

(1)

If a party (the party in default) fails to comply with an interlocutory order or any requirement imposed by or under subpart 1 (case management), a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.

(2)

The Judge may, for example, order—

(a)

that any pleading of the party in default be struck out in whole or in part:

(b)

that judgment be sealed:

(c)

that the proceeding be stayed in whole or in part:

(d)

that the party in default be committed:

(e)

if any property in dispute is in the possession or control of the party in default, that the property be sequestered:

(f)

that any fund in dispute be paid into court:

(g)

the appointment of a receiver of any property or of any fund in dispute.

(3)

An order must not be enforced by committal unless the order has been served personally on the party in default or that party had notice or knowledge of the order within sufficient time for compliance with the order.

Compare: HCR 7.48

7.42 Order relating to management of proceeding may be varied if circumstances change

(1)

This rule applies to an order or direction (a determination) that—

(a)

relates to the management of a proceeding; and

(b)

has been made by a Judge in chambers.

(2)

If there has been a change in circumstances affecting a party or the party’s solicitor or counsel since the making of a determination, a Judge may, on application, vary the determination.

Compare: HCR 7.50(1), (2)

7.43 Order may be rescinded if fraudulently or improperly obtained

(1)

A Judge may rescind any order that has been fraudulently or improperly obtained.

(2)

The Judge may grant any further relief by way of costs that the interests of justice require.

(3)

This rule does not limit any other remedies of a party who has been adversely affected by an order that has been fraudulently or improperly obtained.

Compare: HCR 7.51

7.44 Limitation as to second interlocutory application

(1)

A party who fails on an interlocutory application must not apply again for the same or a similar order without first obtaining the leave of a Judge.

(2)

A Judge may grant leave only in special circumstances.

Compare: HCR 7.52

Subpart 3—Interim relief

7.45 Application for injunction

(1)

An application for an interlocutory injunction may be made by a party before or after the commencement of the hearing of a proceeding, whether or not an injunction is claimed in the party’s statement of claim, counterclaim, or third party notice.

(2)

The plaintiff may not make an application for an interlocutory injunction before the commencement of the proceeding except in case of urgency, and any injunction granted before the commencement of the proceeding—

(a)

must provide for the commencement of the proceeding; and

(b)

may be granted on any further terms that the Judge thinks just.

(3)

An interlocutory injunction to which section 42(2) of the Act applies (restraining a party to a proceeding from removing from New Zealand, or otherwise dealing with, assets in New Zealand) must be in form 21.

(4)

For the purposes of subclause (3),—

(a)

an application for a Mareva injunction (freezing order) must be made by interlocutory application under rule 7.12:

(b)

an applicant for a freezing order without notice to a respondent must fully and frankly disclose to the court all material facts, including—

(i)

any possible defences known to the applicant; and

(ii)

information casting doubt on the applicant’s ability to discharge the obligation created by the undertaking as to damages:

(c)

an applicant for a freezing order must file a signed undertaking that the applicant will comply with any order for the payment of damages to compensate the respondent for any damage sustained in consequence of the freezing order:

(d)

the freezing order must not prohibit the respondent from dealing with the assets covered by the order for the purpose of—

(i)

paying ordinary living expenses; or

(ii)

paying legal expenses related to the freezing order; or

(iii)

disposing of assets, or making payments, in the ordinary course of the respondent’s business, including business expenses incurred in good faith:

(e)

unless there are special circumstances, the court must require the applicant for a freezing order to give appropriate undertakings, including an undertaking as to damages:

(f)

if the applicant has, or may later have, insufficient assets within New Zealand to discharge the obligation created by an undertaking as to damages, the court may require the applicant to provide security for that obligation in a form and in an amount fixed by a Judge or, if the Judge so directs, the Registrar:

(g)

a freezing order must reserve leave to the respondent to apply to the court to discharge or vary the freezing order on whatever period of notice to the applicant the court considers just:

(h)

an application by the respondent to discharge or vary the freezing order must be treated as an urgent application by the court:

(i)

a freezing order made without notice to the respondent must state that it is limited to a particular date, which should be as early as practicable after the freezing order is made:

(j)

the respondent must be informed that on that date the respondent will have an opportunity to be heard by the court:

(k)

on the date referred to in paragraph (i) the applicant has the onus of satisfying the court that the freezing order should be continued or renewed:

(l)

the court may make any order as to costs it considers just in relation to an order referred to subclause (k):

(m)

without limiting the generality of paragraph (l), an order as to costs includes an order as to the costs of any person affected by a freezing order.

(5)

This subpart does not affect the jurisdiction of the court under any enactment to make an order freezing assets.

Compare: HCR 7.53, 32.3, 32.5, 32.6(3) to (5), 32.7–32.10

7.46 Undertaking as to damages

(1)

An applicant for an interlocutory injunction under rule 7.45 must file a signed undertaking that the applicant will comply with any order for the payment of damages to compensate the other party for any damage sustained through the injunction.

(2)

The undertaking must be referred to in the order granting the interlocutory injunction and is part of it.

Compare: HCR 7.54

7.47 Preservation of property

(1)

A Judge may at any stage in a proceeding make orders, subject to any conditions specified by the Judge, for the detention, custody, or preservation of any property.

(2)

An order may authorise a person to enter any land or to do any other thing for the purpose of giving effect to the order.

(3)

The Judge may order that a fund be paid into court or otherwise secured if the proceeding concerns the right of a party to the fund.

(4)

The Judge may treat an application under this rule as an application for directions and give directions accordingly.

Compare: HCR 7.55

7.48 Sale of perishable property before hearing

(1)

A Judge may, on application, make an order authorising a person to sell property (other than land) in a manner and subject to any conditions stated in the order if—

(a)

the proceeding concerns the property or raises, or may raise, questions about the property; and

(b)

the property—

(i)

is perishable or likely to deteriorate; or

(ii)

should for any other reason be sold before the hearing.

(2)

The Judge may treat an application under this rule as an application for directions and give directions accordingly.

Compare: HCR 7.56

7.49 Order to transfer part of property to person with interest in property

(1)

At any stage of a proceeding concerning property a Judge may order, subject to any conditions, that a part of the property be transferred or delivered to a person who has an interest in the property.

(2)

The order may be made if the Judge is satisfied—

(a)

that the part of the property transferred or delivered is not required for the provision that ought to be made to meet the claims on the property; and

(b)

that the order is necessary or desirable—

(i)

to exclude the part of the property from an injunction or other order; or

(ii)

to protect the person who is to transfer or deliver the property.

Compare: HCR 7.57

7.50 Interim payment of income to person with interest in income

(1)

At any stage of a proceeding concerning property a Judge may order, subject to any conditions, that the whole or part of the income from the property be paid, during a period stated in the order, to 1 or more persons who have an interest in the income.

(2)

The order may be made if the Judge is satisfied—

(a)

that the income stated in the order is not required for any provision that ought to be made to meet the claims on the property or its income; and

(b)

that the order is necessary or desirable—

(i)

to exclude the income from a Mareva injunction or other order; or

(ii)

to protect the person who is to pay the income.

Compare: HCR 7.58

Subpart 4—Receivers

7.51 Application

Rules 7.52 to 7.59 apply to a receiver appointed under an order of the court to the extent that the order does not expressly provide otherwise.

Compare: HCR 7.59

7.52 Address for service

The receiver must, within 5 working days after appointment, file a notice specifying an address for service.

Compare: HCR 7.60

7.53 Receiver must give security

(1)

A Judge may give directions as to the security that the receiver is required to give in accordance with this rule.

(2)

If a Judge directs that a receiver be appointed, no appointment may be made until the person to be appointed has given security in accordance with this rule.

(3)

Any security given under this rule must be approved by the Registrar.

(4)

The Registrar must be satisfied that the security is sufficient to ensure that the receiver will—

(a)

account for everything received in his or her capacity as receiver; and

(b)

comply with any direction given by a Judge.

(5)

A Judge may vary any directions given and may, in particular, order that the security be varied or discharged.

(6)

Subclauses (1) and (2) are subject to any enactment.

Compare: HCR 7.61

7.54 Remuneration of receiver

(1)

A receiver must be paid the remuneration fixed by a Judge.

(2)

A Judge may, in the order appointing a receiver or in a later order, name the party or parties who must pay the remuneration and, if more than 1 party is named, the proportion to be paid by each party.

(3)

A Judge may order any party or parties to give security for the receiver’s remuneration.

(4)

Subclause (3) does not affect subclause (2).

Compare: HCR 7.62

7.55 Accounts of receiver

A receiver must file accounts at the intervals or on the dates specified in directions given by a Judge.

Compare: HCR 7.63

7.56 Examination of accounts

(1)

The receiver must,—

(a)

on filing the accounts, request the Registrar to examine the accounts and to allocate a date and time for that examination; and

(b)

serve on each party interested who has given an address for service in the proceeding—

(i)

a copy of the accounts; and

(ii)

a notice of the date and time allocated for the examination of the accounts.

(2)

The receiver must, unless a Judge otherwise orders, attend at the examination of the accounts.

Compare: HCR 7.64

7.57 Default by receiver

(1)

A Judge may make any orders and give any directions that the Judge thinks fit if a receiver does not comply with a requirement, under these rules or an order or a direction,—

(a)

to file any accounts or an affidavit; or

(b)

to attend at the examination of the accounts; or

(c)

to do any other thing.

(2)

Orders and directions made under subclause (1) may include orders and directions for—

(a)

the discharge of the receiver; and

(b)

the appointment of another receiver; and

(c)

the payment of costs.

(3)

If a receiver does not comply with a requirement under these rules or an order or direction of a Judge to pay into court a sum shown by the accounts as due from the receiver, a Judge may order the receiver to pay interest at the rate prescribed under section 62B of the Act.

(4)

This rule does not limit the powers of the court to enforce orders or to punish contempt.

(5)

Subclause (3) does not limit subclause (1) or (2).

Compare: HCR 7.65

7.58 Powers of receiver

(1)

A Judge may authorise a receiver to do (either in the receiver’s own name or in that of 1 or more parties) any act or thing that 1 or more parties could do if of full age and capacity.

(2)

An authority given under subclause (1)—

(a)

may apply generally or be limited to a particular instance; and

(b)

has effect even if 1 or more parties are not of full age and capacity.

(3)

This rule does not limit the powers of a Judge to authorise a receiver to do any act or thing.

Compare: HCR 7.66

7.59 Accounts on death of receiver

(1)

If the receiver in any proceeding dies, a Judge may, on application, make any orders the Judge thinks fit for the filing and examining of accounts by the personal representatives of the deceased receiver and for the payment into court of any amount shown to be due.

(2)

A Judge may not make any order under subclause (1) unless notice of the application has been served on the personal representatives.

(3)

Notice of the application may be served in any manner in which a statement of claim may be served.

Compare: HCR 7.67

Subpart 5—Interim payments

7.60 Interpretation

In rules 7.61 to 7.68, interim payment means a payment on account of any damages, debt, or other sum (excluding costs) that the defendant in a proceeding may be held liable to pay to, or for the benefit of, the plaintiff in that proceeding.

Compare: HCR 7.68

7.61 Application for interim payment

(1)

The plaintiff in a proceeding may, at any time after the time for the filing of a statement of defence by the defendant has expired, apply to the court for an order requiring the defendant to make an interim payment.

(2)

An application under subclause (1) must be supported by an affidavit—

(a)

stating the amount of the damages, debt, or other sum to which the application relates and the reasons for making the application; and

(b)

attaching any documentary evidence relied on by the plaintiff in support of the application.

(3)

The application and a copy of the affidavit in support and any documents annexed to it must be served on the defendant against whom the order is sought at least 10 working days before the date allocated for the hearing of the application.

(4)

A second or subsequent application for an interim payment may be made if it is shown to be justified, even if such an order has previously been made or refused.

Compare: HCR 7.69

7.62 Order for interim payment in respect of damages

(1)

A Judge may make an order under subclause (2) if, on hearing the application, the Judge is satisfied that—

(a)

the defendant against whom the order is sought has admitted liability for the plaintiff’s damages; or

(b)

the plaintiff has a judgment against the defendant for damages to be assessed; or

(c)

on a trial of the proceeding, the plaintiff would obtain judgment for substantial damages against the defendant or, if there are several defendants, against 1 or more of them.

(2)

A Judge may, within the limits in subclause (3), order the defendant to make an interim payment of an amount that the Judge thinks just.

(3)

The amount must not exceed a reasonable proportion of the damages the plaintiff is, in the opinion of the Judge, likely to recover after taking into account—

(a)

any relevant contributory negligence; and

(b)

any set-off, cross-claim, or counterclaim on which the defendant may be entitled to rely.

Compare: HCR 7.70

7.63 Order for interim payment in respect of sums other than damages

(1)

A Judge may make an order under subclause (2) if, on hearing the application, the Judge is satisfied—

(a)

that the plaintiff has obtained an order for an account to be taken as between the plaintiff and the defendant and for the payment of any amount certified to be payable on the basis of that account; or

(b)

in the case of a claim for the possession of land, that even if the proceeding was finally determined in favour of the defendant, the defendant would still be required to compensate the plaintiff for the defendant’s use and occupation of the land before the determination of the proceeding; or

(c)

that, on the trial of the proceeding, the plaintiff is likely to obtain judgment against the defendant for a substantial sum of money apart from any damages or costs.

(2)

A Judge may order that the defendant pay an amount the Judge thinks just, after taking into account any set-off, cross-claim, or counterclaim on which the defendant may be entitled to rely.

(3)

The order does not prejudice any contentions of the parties as to the nature or character of the sum to be paid by the defendant.

Compare: HCR 7.71

7.64 Method of payment

(1)

The amount of any interim payment ordered to be made must be paid to the plaintiff unless the order provides for it to be paid into court.

(2)

If the amount is paid into court, a Judge may, on the application of the plaintiff, order the whole or any part of it to be paid out to the plaintiff at a time or times the Judge thinks just.

(3)

If the person entitled to an interim payment or to a part of an interim payment belongs to a class of persons stated in subclause (4), acceptance of the interim payment is subject to the approval of a Judge and payment out of court may not be made without the leave of a Judge.

(4)

The classes are—

(a)

minors (not including a minor to whom rule 4.31(2) applies):

(b)

persons subject to a property order under the Protection of Personal and Property Rights Act 1988:

(c)

incapacitated persons within the meaning of rule 4.29.

(5)

An application under subclause (2) for money in court to be paid out may be made without notice, but a Judge hearing the application may direct that notice of the application be served on the other party.

(6)

An interim payment may be ordered to be made in 1 sum or by any instalments a Judge thinks just.

(7)

If a payment is ordered in respect of the defendant’s use and occupation of land, the order may provide for periodical payments to be made while the proceeding awaits determination.

(8)

Subclause (1) is subject to subclause (3).

Compare: HCR 7.72

7.65 Directions on interim payment application

When an application is made under rule 7.61, a Judge may give any directions as to the further conduct of the proceeding that the Judge thinks just, and may, in particular, order an early trial of the proceeding.

Compare: HCR 7.73

7.66 Non-disclosure of interim payment

(1)

The fact that an order has been made under rule 7.62(2) or 7.63(2) must not be pleaded.

(2)

The fact that the order has been made or that an interim payment has been made, whether voluntarily or under an order, must not be disclosed at the trial, or hearing, of any question or issue as to liability or damages.

(3)

Subclause (2) does not prevent the disclosure of any fact—

(a)

to the extent that the defendant consents to, or a Judge directs, the disclosure; or

(b)

after all questions of liability and amount have been determined.

Compare: HCR 7.74

7.67 Adjustment on final judgment or order or on discontinuance

(1)

A Judge may, on the application of a party, make an order with respect to an interim payment made under an order or voluntarily that the Judge thinks just.

(2)

A Judge may, in particular, make an order for—

(a)

the repayment by the plaintiff of all or part of the interim payment; or

(b)

the variation or discharge of the interim payment; or

(c)

the payment by another defendant of part of the interim payment, if the defendant who made the interim payment is entitled to recover from the other defendant an amount—

(i)

by way of contribution or indemnity; or

(ii)

in respect of a remedy or relief relating to, or connected with, the plaintiff’s claim.

(3)

A Judge may make an order under this rule—

(a)

when giving or making a final judgment or order; or

(b)

when granting the plaintiff leave to discontinue the proceeding or to withdraw the claim in respect of which the interim payment has been made; or

(c)

at any other stage of the proceeding.

Compare: HCR 7.75

7.68 Counterclaims and other proceedings

Rules 7.60 to 7.67 apply, with all necessary modifications, to any counterclaim or proceeding in which one party seeks an order for an interim payment from another.

Compare: HCR 7.76

Subpart 6—Amendment of pleading

7.69 Filing of amended pleading

(1)

A party may before trial file an amended pleading and serve a copy of it on the other party or parties.

(2)

An amended pleading may introduce, as an alternative or otherwise,—

(a)

relief in respect of a fresh cause of action that is not statute barred; or

(b)

a fresh ground of defence.

(3)

An amended pleading may introduce a fresh cause of action whether or not that cause of action has arisen since the filing of the statement of claim.

(4)

If a cause of action has arisen since the filing of the statement of claim, it may be added only by leave of the court. If leave is granted, the amended pleading must be treated, for the purposes of the law of limitation defences, as having been filed on the date of the filing of the application for leave to introduce that cause of action.

(5)

Subclause (4) overrides subclause (1).

(6)

If an amended pleading introduces a fresh cause of action, the other party must file and serve that party’s defence to it within 10 working days after the day on which the amended pleading is actually served on the other party.

(7)

When an amended pleading does not introduce a fresh cause of action, the other party may, within 5 working days after the day on which the amended pleading is served on that other party, file and serve an amended defence to it.

(8)

If an amended pleading has been filed under this rule, the party filing the amended pleading must bear all the costs of and occasioned by the original pleading and any application for amendment, unless the court otherwise orders.

(9)

This rule does not limit the powers conferred on the court by rule 1.12.

(10)

This rule is subject to rule 7.6 (which prohibits steps after the close of pleadings date without leave).

Compare: HCR 7.77

Subpart 7—Recovery of specific property subject to lien

7.70 Recovery of specific property subject to lien or other security

(1)

This rule applies if a party (A) seeks to recover specific property other than land and the party from whom recovery is sought (B) does not dispute the title of A, but claims to retain the property by virtue of a lien or otherwise as security for a sum of money.

(2)

The court may order that A may pay into court the amount of money in respect of which the lien or security is claimed, and such further sum (if any) for interest and costs as the court directs, and money so paid in must be held by the court until the result of the proceeding is known.

(3)

If payment into court is made, the court may order that the property claimed be delivered to its claimant.

(4)

Subclause (1) is applicable as soon as the claim to retain the property appears from the statement of defence or otherwise.

Compare: HCR 7.78

Subpart 8—Arbitration

7.71 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, on application by a party, 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, on application by a party, stay those parts of the proceeding to which the arbitration agreement relates.

(4)

The court may make the stay on terms as to costs or other ancillary matters.

(5)

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.

(6)

This rule does not affect section 61 of the Act.

Compare: HCR 7.80

Part 8 Discovery, inspection, and interrogatories requirements

Subpart 1—Discovery and inspection

8.1 Interpretation

In this subpart,—

discovery order means an order that requires each party to a proceeding to discover the existence of documents to every other party

standard discovery means discovery that complies with rule 8.7

tailored discovery means discovery that complies with rule 8.8.

Compare: HCR 8.1

8.2 Co-operation

(1)

The parties must co-operate to ensure that the processes of discovery and inspection are—

(a)

proportionate to the subject matter of the proceeding; and

(b)

facilitated by agreement on practical arrangements.

(2)

The parties must, when appropriate,—

(a)

consider options to reduce the scope and burden of discovery; and

(b)

achieve reciprocity in the electronic format and processes of discovery and inspection; and

(c)

ensure technology is used efficiently and effectively; and

(d)

employ a format compatible with the subsequent preparation of an electronic bundle of documents for use at trial.

Compare: HCR 8.2

8.3 Preservation of documents

(1)

As soon as a proceeding is reasonably contemplated, a party or prospective party must take all reasonable steps to preserve documents that are, or are reasonably likely to be, discoverable in the proceeding.

(2)

Without limiting the generality of subclause (1), documents in electronic form that are potentially discoverable must be preserved in readily retrievable form even if they would otherwise be deleted in the ordinary course of business.

Compare: HCR 8.3

8.4 List of documents relied on

(1)

After filing a pleading, a party must, unless subclause (3) applies, serve on the other parties, at the same time as the service of that pleading, a list in form 6 consisting of—

(a)

all the documents referred to in that pleading; and

(b)

any additional principal documents in the filing party’s control that that party has used when preparing the pleading and on which that party intends to rely at the trial or hearing.

(2)

A party who serves a list under subclause (1) must, on request by any other party who is served with the list, give to that other party a copy of any document on the list requested by that party within 5 working days of the request.

(3)

A party need not comply with subclause (1) or (2) if—

(a)

the circumstances make it impossible or impracticable to comply with subclause (1) or (2); and

(b)

a certificate to that effect, setting out the reasons why compliance is impossible or impracticable, and signed by counsel for that party, is filed and served at the same time as the pleading.

(4)

Despite subclause (1) or (2), a party does not need to provide any document that—

(a)

is the subject of a claim of public interest immunity; or

(b)

is reasonably apprehended by the party to be the subject of such a claim.

(5)

Documents may be provided either electronically or in hard copy form.

(6)

If an amended pleading is filed, this rule applies to that amended pleading if it—

(a)

refers to documents not referred to in any earlier pleading filed by the party who files the amended pleading; or

(b)

pleads additional facts.

Compare: HCR 8.4

8.5 Discovery orders to be made at second case management conferences

(1)

A Judge must make a discovery order for a proceeding unless he or she considers that the proceeding can be justly disposed of without any discovery.

(2)

An order under subclause (1) must be made at the second case management conference that is held for the proceeding, unless there is good reason for making the order later.

Compare: HCR 8.5

8.6 Two kinds of discovery

Discovery orders made under this subpart may direct either—

(a)

standard discovery; or

(b)

tailored discovery.

Compare: HCR 8.6

8.7 Standard discovery

Standard discovery requires each party to disclose the documents that are or have been in that party’s control and that are—

(a)

documents on which the party relies; and

(b)

documents that adversely affect that party’s own case; and

(c)

documents that adversely affect another party’s case; and

(d)

documents that support another party’s case.

Compare: HCR 8.7

8.8 Tailored discovery

Tailored discovery must be ordered when the interests of justice require an order involving more or less discovery than standard discovery would involve.

Compare: HCR 8.8

8.9 Presumption as to tailored discovery

It is to be presumed, unless the Judge is satisfied to the contrary, that the interests of justice require tailored discovery in proceedings—

(a)

where the costs of standard discovery would be disproportionately high in comparison with the matters at issue in the proceeding; or

(b)

that involve 1 or more allegations of fraud or dishonesty; or

(c)

in which the parties agree that there should be tailored discovery.

Compare: HCR 8.9

8.10 Obligation of party ordered to make tailored discovery

Tailored discovery requires a party against whom it is ordered to disclose the documents that are or have been in that party’s control either in categories as indicated in clause 3(2) of Schedule 9 of the High Court Rules or under some other method of classification that facilitates the identification of particular documents.

Compare: HCR 8.10

8.11 Preparation for second case management conference

(1)

The parties must, not less than 10 working days before the second case management conference, discuss and endeavour to agree on an appropriate discovery order, and the manner in which inspection will subsequently take place, having addressed the matters in the discovery checklist in accordance with Part 1 of Schedule 9 of the High Court Rules.

(2)

The joint memorandum, or separate memoranda, filed under rule 7.4 must, in addition to the matters required to be addressed under rule 7.4(3), set out the terms of the discovery order that the Judge is requested to make and the reasons for a discovery order in those terms.

(3)

If the parties agree to vary the listing and exchange protocol set out in Part 2 of Schedule 9 of the High Court Rules, they need advise the Judge only that variation has been agreed, not the details of that variation.

Compare: HCR 8.11

8.12 Orders that may be made

(1)

At the second case management conference the Judge may, under rule 8.5, make—

(a)

an order dispensing with discovery; or

(b)

an order for standard discovery; or

(c)

an order for tailored discovery, setting out categories (by, for example, subject headings and date periods) or another method of classification by which documents are to be identified.

(2)

A discovery order may—

(a)

incorporate the listing and exchange protocol set out in Part 2 of Schedule 9 of the High Court Rules; or

(b)

vary that protocol; or

(c)

contain other obligations that are considered appropriate.

(3)

A discovery order may include specific directions as to the manner of discovery.

(4)

A discovery order does not require a party to discover electronically stored information that is not primary data.

(5)

Despite subclause (4), the Judge may order a party to discover electronically stored information that is not primary data if the Judge is satisfied that the need for, and the relevance and materiality of, the non-primary data sought justify the cost and burden of retrieving and producing that data.

(6)

For the purposes of this rule, primary data means active data and readily retrievable archival data.

Compare: HCR 8.12

8.13 Solicitor’s discovery obligations

As soon as practicable after a party becomes bound to comply with a discovery order, the solicitor who acts for the party in the proceeding must take reasonable care to ensure that the party—

(a)

understands the party’s obligations under the order; and

(b)

fulfils those obligations.

Compare: HCR 8.13

8.14 Extent of search

(1)

A party must make a reasonable search for documents within the scope of the discovery order.

(2)

What amounts to a reasonable search depends on the circumstances, including the following factors:

(a)

the nature and complexity of the proceeding; and

(b)

the number of documents involved; and

(c)

the ease and cost of retrieving a document; and

(d)

the significance of any document likely to be found; and

(e)

the need for discovery to be proportionate to the subject matter of the proceeding.

Compare: HCR 8.14

8.15 Affidavit of documents

(1)

Each party must file and serve an affidavit of documents that complies with this rule, subject to any modifications or directions contained in a discovery order.

(2)

In the affidavit of documents, the party must—

(a)

refer to the discovery order under which the affidavit is made; and

(b)

state that the party understands the party’s obligations under the order; and

(c)

give particulars of the steps taken to fulfil those obligations; and

(d)

state the categories or classes of documents that have not been searched, and the reason or reasons for not searching them; and

(e)

list or otherwise identify the documents required to be discovered under the order in a schedule that complies with rule 8.16 and Part 2 of Schedule 9 of the High Court Rules; and

(f)

state any restrictions proposed to protect the claimed confidentiality of any document.

(3)

The affidavit may be in form 22.

(4)

Each party must file and serve the affidavit of documents within such time as the court directs or, if no direction is made, within 20 working days after the date on which the discovery order is made.

Compare: HCR 8.15

8.16 Schedule appended to affidavit of documents

(1)

The schedule referred to in rule 8.15(2)(e) must, in accordance with that discovery order, list or otherwise identify each document that—

(a)

is in the control of the party giving discovery and for which the party does not claim privilege or confidentiality:

(b)

is in the control of the party giving discovery for which privilege is claimed, stating the nature of the privilege claimed:

(c)

is in the control of the party giving discovery for which confidentiality is claimed, stating the nature and extent of the confidentiality:

(d)

has been, but is no longer, in the control of the party giving discovery, stating when the document ceased to be in that control, and what has become of it:

(e)

has not been in the control of the party giving discovery but which that party knows would be discoverable if that party had control of them.

(2)

Subject to Part 2 of Schedule 9 of the High Court Rules, documents of the same nature falling within subclause (1)(b), (d), or (e) may be described as a group or groups.

(3)

The description of documents for which privilege is claimed under subclause (1)(b) must be sufficient to inform the other parties of the basis on which each document is included in a group under subclause (2).

(4)

The schedule must include documents that have previously been disclosed under rule 8.4.

(5)

The schedule need not include—

(a)

documents filed in court; or

(b)

correspondence that may reasonably be assumed to be in the possession of all parties.

Compare: HCR 8.16

8.17 Variation of discovery order

(1)

A party may apply for an order varying the terms of a discovery order.

(2)

The variation may be granted by a Judge on the ground that—

(a)

compliance or attempted compliance with the terms of the order has revealed a need for a variation; or

(b)

there has been a change of circumstances that justifies reconsideration.

Compare: HCR 8.17

8.18 Continuing obligations

(1)

Each party against whom a discovery order is made has a continuing obligation to give discovery and offer inspection at all stages of the proceeding, even if that party has filed and served an affidavit of documents that complies with this subpart.

(2)

A party must discover a document if, in the course of complying with an order for tailored discovery, that party becomes aware of a document that is not required to be discovered under the order, but that—

(a)

adversely affects that party’s own case; or

(b)

adversely affects another party’s case; or

(c)

supports another party’s case.

Compare: HCR 8.18

8.19 Order for particular discovery against party after proceeding commenced

If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered, the Judge may order that party—

(a)

to file an affidavit stating—

(i)

whether the documents are or have been in the party’s control; and

(ii)

if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control and what has become of them; and

(b)

to serve the affidavit on the other party or parties; and

(c)

if the documents are in the person’s control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties.

Compare: HCR 8.19

8.20 Order for particular discovery before proceeding commenced

(1)

This rule applies if it appears to a Judge that—

(a)

a person (the intending plaintiff) is or may be entitled to claim in the court relief against another person (the intended defendant) but that it is impossible or impracticable for the intending plaintiff to formulate the intending plaintiff’s claim without reference to 1 or more documents or a group of documents; and

(b)

there are grounds to believe that the documents may be or may have been in the control of a person (the person) who may or may not be the intended defendant.

(2)

The Judge may, on the application of the intending plaintiff made before any proceeding is brought, order the person—

(a)

to file an affidavit stating—

(i)

whether the documents are or have been in the person’s control; and

(ii)

if they have been but are no longer in the person’s control, the person’s best knowledge and belief as to when the documents ceased to be in the person’s control and what has become of them; and

(b)

to serve the affidavit on the intending plaintiff; and

(c)

if the documents are in the person’s control, to make those documents available for inspection, in accordance with rule 8.27, to the intending plaintiff.

(3)

An application under subclause (2) must be by interlocutory application made on notice—

(a)

to the person; and

(b)

to the intended defendant.

(4)

The Judge may not make an order under this rule unless satisfied that the order is necessary at the time when the order is made.

Compare: 1947 No 16 s 56A; HCR 8.20

8.21 Order for particular discovery against non-party after proceeding commenced

(1)

This rule applies if it appears to a Judge that a person who is not a party to a proceeding may be or may have been in the control of 1 or more documents or a group of documents that the person would have had to discover if the person were a party to the proceeding.

(2)

The Judge may, on application, order the person—

(a)

to file an affidavit stating—

(i)

whether the documents are or have been in the person’s control; and

(ii)

if the documents have been but are no longer in the person’s control, the person’s best knowledge and belief as to when the documents ceased to be in the person’s control and what has become of them; and

(b)

to serve the affidavit on a party or parties specified in the order; and

(c)

if the documents are in the control of the person, to make those documents available for inspection, in accordance with rule 8.27, to the party or parties specified in the order.

(3)

An application for an order under subclause (2) must be made on notice to the person and to every other party who has filed an address for service.

Compare: 1947 No 16 s 56B; HCR 8.21

8.22 Costs of discovery

(1)

If it is manifestly unjust for a party to have to meet the costs of complying with an order made under this subpart, a Judge may order that another party meet those costs, either in whole or in part, in advance or after the party has complied.

(2)

Despite subclause (1), the court may subsequently discharge or vary an order made under that subclause if satisfied that a different allocation of those costs would be just.

(3)

If an order is made under rule 8.20(2) or 8.21(2), the Judge may, if the Judge thinks it just, order the applicant to pay to the person from whom discovery is sought the whole or part of that person’s expenses (including solicitor and client costs) incurred in relation to the application and in complying with any order made on the application.

Compare: HCR 8.22

8.23 Incorrect affidavit of documents to be amended

If, by reason of any change of circumstances or an error or omission, an affidavit of documents filed in response to a discovery order appears to the person making discovery to be defective or erroneous, the person must promptly file and serve an affidavit that corrects or supplements the affidavit of documents.

Compare: HCR 8.23

8.24 Who may swear affidavit of documents

(1)

When a Judge makes a discovery order, the Judge may—

(a)

specify by name or otherwise the person who has to make the affidavit of documents; or

(b)

specify by description or otherwise a group of persons or a class of persons each of whom may make the affidavit.

(2)

If the Judge does not specify the person or the group or class of persons, the affidavit of documents may be made as follows:

(a)

if the person required to make discovery is an individual person, by that individual person:

(b)

if the person required to make discovery is a corporation or a body of persons empowered by law to sue or be sued (whether in the name of the body or in the name of the holder of an office), by a person who meets the requirements of rule 9.72:

(c)

if the person required to make discovery is the Crown, or an officer of the Crown who sues or is sued in an official capacity, or as representing a government department, by an officer of the Crown.

Compare: HCR 8.24

8.25 Challenge to privilege or confidentiality claim

(1)

If a party challenges a claim to privilege or confidentiality made in an affidavit of documents, the party may apply to the court for an order setting aside or modifying the claim.

(2)

In considering the application, a Judge may require the document under review to be produced to the Judge and may inspect it for the purpose of deciding the validity of the claim.

(3)

The Judge may—

(a)

set aside the claim to privilege or confidentiality; or

(b)

modify the claim to privilege or confidentiality; or

(c)

dismiss the application; or

(d)

make any other order with respect to the document under review that the Judge thinks just.

Compare: HCR 8.25

8.26 Crown documents and public interest

An order made under section 27(1) of the Crown Proceedings Act 1950 must be construed as not requiring disclosure of the existence of any document if—

(a)

the Prime Minister certifies that the disclosure of the existence of that document would be likely to prejudice—

(i)

the security or defence of New Zealand or the international relations of the Government of New Zealand; or

(ii)

any interest protected by section 7 of the Official Information Act 1982; or

(b)

the Attorney-General certifies that the disclosure of the existence of that document would be likely to prejudice the prevention, investigation, or detection of offences.

Compare: HCR 8.26

8.27 Inspection of documents

(1)

As soon as a party who is required to make discovery has filed and served an affidavit of documents, that party must, subject to rule 8.28, make the documents that are listed in the affidavit and that are in that party’s control available for inspection by way of exchange.

(2)

Documents must be exchanged in accordance with the listing and exchange protocol in Part 2 of Schedule 9 of the High Court Rules.

(3)

If a discovery order exempts a party from giving discovery and inspection electronically, that party must make the documents listed in the affidavit of documents available for inspection in hard copy form and must promptly make those documents available for copying if requested.

(4)

A party who has received a document electronically under this rule may, on giving reasonable notice in writing, require the person giving discovery to produce the original document for inspection.

(5)

This rule also applies to documents listed in an affidavit filed and served under rule 8.20 or 8.21.

(6)

This rule is subject to the terms of any discovery order made under rule 8.5.

Compare: HCR 8.27

8.28 Privilege and confidentiality

(1)

A party is not required to make privileged documents available for inspection.

(2)

If a document contains both privileged and non-privileged information, a party must make the document available for inspection, but may redact the privileged information by rendering the privileged information in the document unreadable.

(3)

A party may limit inspection of confidential documents to the persons specified in the affidavit of documents, subject to the restrictions proposed in the affidavit.

Compare: HCR 8.28

8.29 Order facilitating inspection

(1)

A Judge may, on application, make any order the Judge thinks appropriate to facilitate the efficient inspection of documents.

(2)

An order under subclause (1) may, for example, require the person who is to produce the documents for inspection to do either or both of the following:

(a)

arrange the documents in a stated manner or order:

(b)

assist the party inspecting the documents to locate and identify particular documents or groups of documents.

Compare: HCR 8.29

8.30 Use of documents

(1)

A party to whom a document has been made available electronically or is produced for inspection under rule 8.27 or 8.29 may make copies of the document.

(2)

On the application of a party to whom a document is produced for inspection under rule 8.27 or 8.29, a Judge may order the person who has control of the document to give the applicant a legible copy.

(3)

An order under subclause (2) may be made on any terms the Judge thinks just, and, in particular, the Judge may order that—

(a)

the applicant pay the reasonable expenses of the other party:

(b)

the document be marked to the effect that it is a copy given for purposes of inspection only.

(4)

A party who obtains a document by way of inspection or who makes a copy of a document under this rule—

(a)

may use that document or copy only for the purposes of the proceeding; and

(b)

except for the purposes of the proceeding, must not make it available to any other person (unless it has been read out in open court).

Compare: HCR 8.30

8.31 Effect of failure to include document

A document that should have been included in a party’s affidavit of documents may be produced in evidence at the hearing only with the consent of the other party or parties or the leave of the court.

Compare: HCR 8.31

8.32 Notice to produce documents or things

(1)

A party to a proceeding may serve on another party a notice requiring the other party to produce a document or thing for the purpose of evidence at the hearing of the proceeding, or before a Judge, an officer, an examiner, or any other person who has authority to take evidence in the proceeding.

(2)

If the document or thing is in the control of the party who is served with the notice, the party must, unless a Judge otherwise orders, produce the document or thing in accordance with the notice, without the need for a subpoena for production.

(3)

The notice must be treated as an order of the court to produce the document or thing specified in the notice.

Compare: HCR 8.32

8.33 Contempt of court

(1)

Every person is guilty of contempt of court who, being a person against whom a discovery order or other order under this subpart has been made, wilfully and without lawful excuse disobeys the order or fails to ensure the order is complied with.

(2)

This rule does not limit or affect any power or authority of the court to punish a person for contempt of court.

Compare: HCR 8.33

Subpart 2—Interrogatories

8.34 Interrogatories by notice

(1)

After a statement of defence has been filed, a party who has filed a pleading may file and serve on another party who has filed a pleading a notice requiring that party to answer specified interrogatories relating to any matter in question in the proceeding between the interrogating party and the party served.

(2)

The notice may require that the answers be verified even if the interrogating party has not previously required any answers to interrogatories to be verified.

(3)

The notice must be in form 23.

Compare: HCR 8.34

8.35 Duties of party served

(1)

A party required by notice under rule 8.34 to answer interrogatories must answer the interrogatories within the period specified in the notice.

(2)

The period specified commences on the first working day after the day on which the notice under rule 8.34 is served and may not be less than 10 working days (or, if the party is resident out of New Zealand, 20 working days).

(3)

The party required to answer the interrogatories must file and serve on the party requiring the answers,—

(a)

if the answers do not have to be verified, a statement in accordance with rule 8.39; or

(b)

if the answers do have to be verified, an affidavit verifying the statement together with the statement verified unless it has already been filed and served.

(4)

This rule is subject to rule 8.36.

Compare: HCR 8.35

8.36 Limitation of interrogatories by notice

(1)

A Judge may, on the application of a party required to answer interrogatories, order that answers to interrogatories under rule 8.34 by that party—

(a)

are not required; or

(b)

need to be given only to specified interrogatories or classes of interrogatories or to specified matters that are in question in the proceeding.

(2)

The application may be made before or after the party has been served with a notice under rule 8.34.

(3)

In determining the application, the Judge must make any orders required to prevent unnecessary or oppressive interrogatories or unnecessary answers to interrogatories.

Compare: HCR 8.36

8.37 Multiple parties

If there are more than 2 parties, a party who is required under rule 8.34 to answer interrogatories must serve the documents required to be served under that rule on every party who has given an address for service.

Compare: HCR 8.37

8.38 Order to answer

(1)

A Judge may, at any stage of any proceeding, order any party to file and serve on any other party (whether the interrogating party or not) a statement prepared in accordance with rule 8.39 in answer to interrogatories specified or referred to in the order.

(2)

The interrogatories must relate to matters in question in the proceeding.

(3)

The order may require the statement to be verified by affidavit.

(4)

The Judge must not make an order under subclause (1) unless satisfied that the order is necessary at the time when it is made.

Compare: HCR 8.38

8.39 Contents of statement

(1)

A statement in answer to interrogatories must, unless a Judge otherwise orders, comply with this rule.

(2)

A statement in answer to interrogatories must deal with each interrogatory specifically,—

(a)

by answering the substance of the interrogatory without evasion; or

(b)

by objecting to answer the interrogatory on 1 or more of the grounds mentioned in rule 8.40(1) and briefly stating the facts on which the objection is based.

(3)

The statement must set out above or opposite to each answer or objection the interrogatory to which it relates.

Compare: HCR 8.39

8.40 Objection to answer

(1)

A party may object to answer an interrogatory on the following grounds only:

(a)

that the interrogatory does not relate to a matter in question between the parties involved in the interrogatories:

(b)

that the interrogatory is vexatious or oppressive:

(c)

that the information sought is privileged:

(d)

that the sole object of the interrogatory is to ascertain the names of witnesses.

(2)

It is not a sufficient objection that the answer to an interrogatory will determine a substantial issue in the proceeding.

(3)

On an application under rule 8.36 in respect of an interrogatory, a Judge may—

(a)

require the applicant to specify on what grounds the applicant objects to answer that interrogatory; and

(b)

determine the sufficiency of the objection.

(4)

If the Judge determines that the objection is not sufficient, the applicant is not entitled to object to answer the interrogatory.

Compare: HCR 8.40

8.41 Who may swear affidavit verifying statement in answer to interrogatories

(1)

An affidavit verifying a statement of a party in answer to interrogatories may be made as follows:

(a)

by the person required to make the statement:

(b)

if the person required to make the statement is a minor (other than a minor to whom rule 4.31(2) applies) or is an incapacitated person within the meaning of rule 4.29, by the person’s litigation guardian:

(c)

if the person required to make the statement is a corporation or a body of persons empowered by law to sue or to be sued (whether in the name of the body or in the name of the holder of a registry), by a person who meets the requirements of rule 9.72:

(d)

if the person required to make the statement is the Crown, or an officer of the Crown who sues or is sued in an official capacity, or as representing a government department, by an officer of the Crown.

(2)

Despite subclause (1), if paragraph (c) or (d) of that subclause applies, and if the affidavit is to be filed and served in accordance with an order, a Judge may—

(a)

specify by name or otherwise the person who has to make the affidavit; or

(b)

specify by description or otherwise a group or class of persons, any one of whom may make the affidavit.

Compare: HCR 8.41

8.42 Insufficient answer

If a party fails to answer an interrogatory sufficiently, a Judge may, in addition to acting under rule 7.41,—

(a)

if the party has made an insufficient answer, order the party to make a further answer verified by affidavit in accordance with rule 8.38; or

(b)

order the party, or any of the persons mentioned in rule 8.41(1)(b) to (d), as the case requires, to attend to be orally examined.

Compare: HCR 8.42

8.43 Incorrect answer to be amended

(1)

If, by reason of a change of circumstances or an error or omission, a statement filed in response to a notice given or order made under rule 8.34, 8.38, or 8.42 appears to the party who filed it or on whose behalf it was filed to be defective or erroneous, that party must promptly file and serve a further statement that corrects or supplements the original statement.

(2)

If the original statement was verified, the further statement must also be verified.

Compare: HCR 8.43

8.44 Answers as evidence

(1)

A party may give in evidence—

(a)

1 or more answers to interrogatories without giving the other answer:

(b)

part of an answer to an interrogatory without giving the whole of the answer.

(2)

If a party proposes to give in evidence an answer (or part of an answer) to an interrogatory (answer A), the Judge may look at the other answers, and if the Judge considers that answer A is so connected with another answer (answer B) that answer A ought not to be received without answer B, the Judge may refuse to receive answer A unless answer B is also given in evidence.

Compare: HCR 8.44

8.45 Public interest

The rules that relate to interrogatories do not affect any rule of law that authorises or requires the withholding of a matter on the ground that its disclosure would be injurious to the public interest.

Compare: HCR 8.45

8.46 Defamation proceedings

If, in a proceeding for defamation, the defendant pleads that the words or matters complained of are honest opinion on a matter of public interest or were published on a privileged occasion, no interrogatories as to the defendant’s sources of information or grounds of belief may be allowed unless the interrogatories are necessary in the interests of justice.

Compare: HCR 8.46

Subpart 3—Notice to admit facts

8.47 Notice to admit facts

(1)

A party who is entitled to serve a notice under rule 8.34 may at any time serve on another party a notice requiring the party to admit, for the purpose of the proceeding only, the facts specified in the notice.

(2)

The notice must be in form 24.

(3)

An admission made in compliance with a notice under subclause (1)—

(a)

may be amended or withdrawn by the party by whom it was made at any time if a Judge so allows, and this may be done on any terms the Judge 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 which it was made.

(4)

If the party on whom a notice to admit facts has been served under subclause (1) refuses or neglects to admit the facts within 5 working days after the day of service or within any longer time allowed by a Judge, the costs of proving the facts must be paid by that party, unless a Judge otherwise orders.

Compare: HCR 8.47

8.48 Judgment on admission of facts

A judgment or order may be made on an admission of facts under rule 15.12.

Compare: HCR 8.48

Part 9 Evidence

Subpart 1—Briefs, oral evidence directions, common bundles, and chronologies

9.1 Objective and scope

(1)

When applying the rules in this subpart to a proceeding, the court and the parties must pursue the just, speedy, and inexpensive determination of that proceeding.

(2)

The parties must also ensure that the briefs and the common bundle are commensurate with the goal of keeping the cost of the proceeding proportionate to the subject matter of the proceeding.

(3)

The documents to be produced at the trial or hearing and the evidence-in-chief of witnesses must be prepared, produced, and led in accordance with this subpart.

Compare: HCR 9.1

9.2 Exchange of documents and index

(1)

In this rule, documents to be relied upon means—

(a)

documents referred to in a brief or to be referred to by a witness; and

(b)

documents intended to be put to witnesses called by another party; and

(c)

documents to be referred to in opening.

(2)

When a party discloses documents to be relied upon at the trial or hearing, that party must supply a list of those documents incorporating any list previously supplied, so that the other parties always have an up-to-date list of the documents that party intends to rely upon. The list may be in any format and is to be labelled and referred to as that party’s index.

(3)

Documents to be relied upon at the trial or hearing but additional to those already disclosed may be disclosed at any time, but not later than a date provided by these rules or fixed by the court at a case management conference.

(4)

Subclause (3) does not affect a party’s ongoing obligations in relation to discovery.

Compare: HCR 9.2

9.3 Timing

(1)

Unless otherwise ordered by the court, a common bundle of documents must not be prepared until all the briefs of the parties have been served.

(2)

The common bundle must be prepared by the plaintiff (or a different party, if the court so orders).

Compare: HCR 9.3

9.4 Preparation of common bundle

(1)

The parties must co-operate in the preparation of a bundle of documents (in this subpart referred to as the common bundle).

(2)

The duty to co-operate includes—

(a)

advising the plaintiff or the plaintiff’s counsel promptly, after the date when the last brief of any party is served under rule 9.7, of the documents that the party requires the plaintiff to include in the common bundle; and

(b)

taking all practicable steps to assist the plaintiff in the preparation of the common bundle, for example, by making copies of documents available, or agreeing to the excision of part of a document if that part cannot be relevant; and

(c)

conferring as to the format of the common bundle.

(3)

If a party other than the plaintiff has been ordered to prepare the common bundle, the references in subclause (2) to the plaintiff are to be read as references to that different party.

(4)

Subject to rule 9.6, the common bundle must contain all the documents listed in the index of each party, and no other documents.

(5)

The common bundle must—

(a)

arrange the documents chronologically, or in any other appropriate sequence or manner agreed by counsel and approved by the court:

(b)

number each page of the common bundle in a consecutive sequence:

(c)

set out before the first document a common bundle index that shows—

(i)

a short description of each document:

(ii)

the date of each document:

(iii)

the party from whose custody each document has been produced:

(iv)

the page number of each document as it appears in the common bundle:

(d)

use a format that is, so far as possible, compatible with that used by the parties when listing documents under rule 8.16 (Schedule appended to affidavit of documents).

(6)

If the parties have agreed to use an electronic format for the common bundle, the parties must have regard to any practice note on electronic formats issued from time to time by the Chief District Court Judge.

(7)

Unless the court directs otherwise, the common bundle must be filed and served not later than 10 working days after the date when the last brief of any party is served under rule 9.7.

Compare: HCR 9.4

9.5 Consequences of incorporating document in common bundle

(1)

Each document contained in the common bundle is, unless the court otherwise directs, to be considered—

(a)

to be admissible; and

(b)

to be accurately described in the common bundle index; and

(c)

to be what it appears to be; and

(d)

to have been signed by any apparent signatory; and

(e)

to have been sent by any apparent author and to have been received by any apparent addressee; and

(f)

to have been produced by the party indicated in the common bundle index.

(2)

If a party objects to the admissibility of a document included in the common bundle, or to the application of any of subclause (1)(b) to (f) to a document, the objection must, if practicable, be recorded in the common bundle and must be determined by the court at the hearing or at any prior time that the court directs.

(3)

The fact that a document has been included in the common bundle is not relevant to the determination under subclause (2) of an objection that relates to the document.

(4)

A document in the common bundle is automatically received into evidence (subject to the resolution of any objection to admissibility) when a witness refers to it in evidence or when counsel refers to it in submissions (made otherwise than in a closing address).

(5)

A document in the common bundle may not be received in evidence except under subclause (4).

(6)

The court may direct that this rule or any part of it is not to apply to a particular document.

Compare: HCR 9.5

9.6 Consequence of not incorporating document in common bundle

(1)

A document not incorporated in the common bundle may be produced at the trial or hearing only with the leave of the court.

(2)

The court may refuse leave to produce a document not so incorporated and not discovered if it is satisfied that the production of that document might cause an injustice.

Compare: HCR 9.6

9.7 Requirements in relation to briefs

(1)

In this subpart, brief, in relation to the evidence of a witness to be called by a party, means a written statement setting out evidence proposed to be given by that witness.

(2)

The date by which the parties must complete and serve briefs upon each other, simultaneously or sequentially, must be determined by the court at a case management conference, having regard to the needs of the case.

(3)

Whether or not some evidence is directed to be led orally, the brief must contain the testimony intended to be taken from that witness on that subject.

(4)

Every brief—

(a)

must be signed by the witness by whom the brief is made:

(b)

must be in the words of the witness and not in the words of the lawyer involved in drafting the brief:

(c)

must not contain evidence that is inadmissible in the proceeding:

(d)

must not contain any material in the nature of a submission:

(e)

must avoid repetition:

(f)

must avoid the recital of the contents or a summary of documents that are to be produced in any event:

(g)

must be confined to the matters in issue.

(5)

If the brief does not comply with the requirements of subclause (4), the court, prior to or during the trial, may direct that it not be read in whole or in part, and may make such order as to costs as the court sees fit.

(6)

When a brief is served, the party serving it must as soon as practicable advise the Registrar what has been served, upon whom, and the date of service.

Compare: HCR 9.7

9.8 Supplementary briefs

(1)

A party wishing to offer a supplementary brief must serve it as soon as possible.

(2)

The acceptance and use of the supplementary brief in court will be at the discretion of the trial Judge.

Compare: HCR 9.8

9.9 Exchange of chronology of facts intended to be relied upon at trial or hearing

(1)

The plaintiff must, not later than 15 working days after the common bundle has been served, file and serve a chronology of the facts it intends to rely upon at the trial or hearing.

(2)

In preparing the chronology, the plaintiff must—

(a)

set out the facts in chronological order; and

(b)

cross-reference the facts to—

(i)

1 or more documents; or

(ii)

1 or more statements in written briefs; and

(c)

include, when available, common bundle index references or page references.

(3)

The other parties must, not later than 15 working days after service of the plaintiff’s chronology, file and serve their responses to it, identifying which facts they dispute, and adding any other facts they intend to rely upon.

(4)

In preparing their responses, the other parties must—

(a)

cross-reference disputed facts to different or contradictory facts in the plaintiff’s chronology; and

(b)

list any additional facts; and

(c)

comply with subclause (2)(b).

(5)

The court may modify the requirements of this rule at a case management conference.

Compare: HCR 9.9

9.10 Oral evidence directions

(1)

After the preparation and service of the chronologies of facts, the parties must bring significant facts that are disputed to the attention of the court.

(2)

The obligation in subclause (1) may be discharged at a case management or pretrial conference, or at another time, but must, in any event, be discharged not later than 15 working days after service of the chronologies of fact has been completed.

(3)

The court may, before the giving of evidence, and either before or at the trial or hearing, direct that evidence be given orally (an oral evidence direction).

Compare: HCR 9.10

9.11 Compliance with Evidence Act 2006

(1)

Any challenge to the admissibility of a brief, in whole or in part, must be notified to the party or parties concerned within 20 working days after receipt of the brief by the challenging party.

(2)

If the issue is not resolved between counsel in a further 10 working days, notice that there is an admissibility issue must be given to the court by the challenging party.

Compare: HCR 9.11

9.12 Evidence-in-chief at trial

(1)

A brief signed by a witness—

(a)

must, subject to the terms of an oral evidence direction made under rule 9.10, be read by the witness at the trial as the witness’s evidence-in-chief; and

(b)

is, when read by the witness at the trial, the evidence-in-chief given by the witness at the trial; and

(c)

must, after being read by the witness at the trial, be endorsed by or on behalf of the Registrar with the words “Given in evidence on [date]”.

(2)

Any portion of the brief that is the subject of an oral evidence direction under rule 9.10 becomes part of the evidence-in-chief of the witness only if and when it is given orally.

Compare: HCR 9.12

9.13 Briefs not given in evidence

(1)

If, by the time that a party opens the party’s case, the brief of another party’s witness has not been given in evidence, the party may, in opening, refer to that brief only with the leave of the trial Judge.

(2)

When any part of the evidence contained in a brief is not given in evidence at the trial by the person who signed the brief, any other party to the proceeding may, unless the trial Judge otherwise directs, put that part of the evidence to that person in cross-examination.

Compare: HCR 9.13

9.14 Privilege and admissibility not affected by briefs

Nothing in this subpart—

(a)

deprives any party of that party’s right to treat any communication as privileged; or

(b)

changes inadmissible evidence into admissible evidence; or

(c)

changes admissible evidence into inadmissible evidence; or

(d)

deprives any party of that party’s right to cross-examine any party to a proceeding on a brief, served under these rules, that is inconsistent with a statement previously made by that party; or

(e)

allows a brief, served under these rules, to be made available, before it is given in evidence, for use for another purpose or proceeding.

Compare: HCR 9.14

9.15 Cross-examination duties

The exchange of briefs under this subpart does not affect the cross-examination duties referred to in section 92 of the Evidence Act 2006.

Compare: HCR 9.15

9.16 Plaintiff’s synopsis of opening

The plaintiff must, not later than 2 working days before the trial or hearing, file in the court and serve on every other party to the proceeding a copy of the plaintiff’s opening.

Compare: HCR 9.16

Subpart 2—Evidence by depositions

9.17 Order for examination of witness or for letters of request

(1)

When, in a proceeding or on an interlocutory application, a party desires to have the evidence of a person or persons taken otherwise than at the trial or the hearing of that interlocutory application, the court or a Registrar may, on application by that party, make orders on any terms the court thinks just—

(a)

for the examination of a person on oath before a Judge, Registrar, or Deputy Registrar or before a person that the court appoints (in rules 9.18 to 9.23 referred to as the examiner) at any place whether in or out of New Zealand; or

(b)

for the sending of a letter of request to the judicial authorities of another country, to take, or cause to be taken, the evidence of a person.

(2)

On the application of an opposite party, the court or a Registrar may, if it is satisfied that the party who obtained the order under subclause (1) is not implementing the order with due diligence, rescind the order and may make any other order justice requires.

Compare: HCR 9.17

9.18 Security for costs for taking evidence outside New Zealand

The court or a Registrar may, as a condition of making an order under rule 9.17 for the taking of evidence outside New Zealand, require the party applying to give security for—

(a)

the estimated fees and expenses of the examiner, or other person by or before whom the evidence is to be taken; and

(b)

the costs of any opposite party of and incidental to the taking of the evidence, for the amount the court or Registrar thinks just, but not exceeding the estimated reasonable indemnity costs and disbursements of that opposite party.

Compare: HCR 9.18

9.19 Documents for examiner

(1)

The party obtaining an order for examination before an examiner must, unless the examination is conducted by the Registrar or Deputy Registrar at the registry of the court where the file of the proceeding is held, furnish the examiner with copies of those documents in the proceeding that are necessary to inform the examiner of the matters to which the examination is to relate.

(2)

If the documents in the proceeding are not sufficient to inform the examiner of the matters to which the examination is to relate, the court must, in the order for examination or in a later order, state those matters.

Compare: HCR 9.19

9.20 Procedure for examination before examiner

(1)

On receipt of a copy of the order for examination, the examiner must appoint a time and place for the examination and notify in form 25 all parties of the time and place.

(2)

The examiner may adjourn the examination from time to time and from place to place as is necessary or expedient.

(3)

The examiner may administer an oath to each witness examined and each witness may be examined, cross-examined, and re-examined as at the trial of a proceeding.

(4)

The examiner must ensure that evidence given at the examination is recorded, together with notes of any objections to the evidence.

(5)

The depositions so taken must be signed on each page by the witness and by the examiner.

(6)

The depositions when taken must be securely fastened together and must, together with the exhibits and the report of the examiner, be sent without delay to the registry of the court in which the file of the proceeding is for the time being held.

(7)

The examiner may send to the registry of the court in which the file of the proceeding is for the time being held a certificate stating that—

(a)

at the time and place appointed for the examination or at any adjournment, there was no appearance by or on behalf of the party obtaining the order; or

(b)

the witness did not attend at that time and place; or

(c)

at that time and place, the applicant intimated that it was not intended to proceed with the taking of the evidence.

(8)

On application to the Registrar a party may inspect any depositions taken under this rule and make copies of them or extracts from them.

Compare: HCR 9.20

9.21 Examination of additional persons

(1)

The examiner may, with the consent in writing of all parties to the proceeding, take the examination of a person in addition to the person named or referred to in the order for examination.

(2)

The consent of each of the parties must be attached to the deposition of that person.

Compare: HCR 9.21

9.22 Objection to question

When objection is taken to a question to a person being examined before an examiner, or a witness takes objection to answering a question or to producing a document or a thing,—

(a)

the examiner must give the parties the examiner’s opinion on the objection, but must not rule on it; and

(b)

the question, the ground for the objection, the opinion of the examiner, and the answer (if any) to the question must be set out in the deposition of the witness or in a statement attached to the deposition; and

(c)

the court may, on application by a party, decide the validity of the objection.

Compare: HCR 9.22

9.23 Form of report

The report of the examiner may be in form 26.

Compare: HCR 9.23

9.24 Depositions as evidence

Depositions taken in accordance with these rules under an order under rule 9.17 may be produced as evidence at the trial of the proceeding and must be received subject to any objection on the ground of admissibility.

Compare: HCR 9.24

Subpart 3—Inspection and testing

9.25 Order for inspection, etc

(1)

The court may, for the purpose of enabling the proper determination of any matter in question in a proceeding, make orders, on terms, for—

(a)

the inspection of any property:

(b)

the taking of samples of any property:

(c)

the observation of any property:

(d)

the measuring, weighing, or photographing of any property:

(e)

the conduct of an experiment on or with any property:

(f)

the observation of a process.

(2)

An order may authorise a person to enter any land or do anything else for the purpose of getting access to the property.

(3)

In this rule, property includes any land and any document or other chattel, whether in the control of a party or not.

Compare: HCR 9.34

9.26 Notice of application

A party applying for an order under rule 9.25 must, so far as practicable, serve notice of the application on each person who would be affected by the order if made.

Compare: HCR 9.35

Subpart 4—Experts

9.27 Appointment of court expert

(1)

In a proceeding that is to be tried by Judge alone and in which a question for an expert witness arises, the court may at any time, on its own initiative or on the application of a party, appoint an independent expert, or, if more than 1 such question arises, 2 or more such experts, to inquire into and report upon any question of fact or opinion not involving questions of law or of construction.

(2)

An expert appointed under subclause (1) is referred to in this rule and in rules 9.28 to 9.33 as a court expert.

(3)

A court expert in a proceeding must, if possible, be a person agreed upon by the parties and, failing agreement, the court must appoint the court expert from persons named by the parties.

(4)

A person appointed as an independent expert in a proceeding under rule 9.35(3) may not be appointed as a court expert unless the parties agree.

(5)

In this rule, expert, in relation to a question arising in a proceeding, means a person who has the knowledge or experience of, or in connection with, that question that makes that person’s opinion on it admissible in evidence.

Compare: HCR 9.36

9.28 Submission of question to court expert

The question to be submitted to the court expert and the instructions (if any) given to the court expert must, failing agreement between the parties, be settled by the court.

Compare: HCR 9.37

9.29 Report of court expert

(1)

The court expert must send his or her report to the court, together with whatever number of copies the court directs.

(2)

The Registrar must send copies of the report to the parties or their solicitors.

(3)

The court may direct the court expert to make a further or supplemental report.

(4)

Any part of the court expert’s report not accepted by all the parties must be treated as information furnished to the court and given appropriate weight.

Compare: HCR 9.38

9.30 Experiments and tests

(1)

If the court expert is of the opinion that an experiment or test of any kind (other than one of a trifling character) is necessary for the making of a satisfactory report, the court expert—

(a)

must inform the parties or their solicitors; and

(b)

must, if possible, make an arrangement with the parties or their solicitors about—

(i)

the expenses involved; and

(ii)

the persons to attend the experiment or test; and

(iii)

any other relevant matters.

(2)

The court must settle any matters on which the parties or their solicitors are unable to agree.

Compare: HCR 9.39

9.31 Cross-examination of court expert

(1)

Any party may, within 10 working days after receiving a copy of the court expert’s report, apply to the court for an order under subclause (2).

(2)

On an application under subclause (1), the court must make an order for the cross-examination of the court expert by all parties—

(a)

at the trial; or

(b)

before an examiner at such time and place as may be specified in the order.

Compare: HCR 9.40

9.32 Remuneration of court expert

(1)

The remuneration of the court expert must be fixed by the court and include—

(a)

a fee for the report; and

(b)

a proper sum for each day during which he or she is required to be present either in court or before an examiner.

(2)

The court may, by the order appointing the court expert or subsequently, make any order it thinks just for and incidental to the payment of the remuneration of the court expert including either or both of the following:

(a)

an order directing that the remuneration of the court expert must be paid by 1 or more of the parties and, if more than 1, in the proportions the court thinks just:

(b)

an order that any party or parties give security, on any terms the court thinks just, for the remuneration of the court expert.

(3)

When the court appoints the court expert on its own initiative, the court, instead of making an order under subclause (2), may, by the order appointing the expert or subsequently, order that the remuneration of the court expert must be paid by the chief executive of the Ministry of Justice out of money appropriated by Parliament for the purpose.

(4)

Subclauses (2) and (3) do not affect the power of the court to make an order providing for the payment of the court expert’s remuneration as part of the costs of the proceeding.

Compare: HCR 9.41

9.33 Calling of expert witnesses

(1)

If a court expert is appointed in a proceeding or an interlocutory application, a party may call 1 expert witness, or with leave more than 1, to give evidence on the question reported on by the court expert, if the party gives notice of the intention to do so a reasonable time before the trial.

(2)

The court must not grant leave under subclause (1) unless the circumstances are exceptional.

Compare: HCR 9.42

9.34 Expert witness to comply with code of conduct

(1)

A party to a proceeding who engages an expert witness must give the expert witness a copy of the code of conduct set out in Schedule 4 of the High Court Rules.

(2)

An expert witness must—

(a)

state in any written statement of the proposed evidence of the expert witness served under rule 9.7, or at the time of giving any oral evidence, or in any affidavit containing the evidence of the expert witness, that the expert witness has read the code of conduct and agrees to comply with it:

(b)

comply with the code of conduct in preparing any written statement of the proposed evidence of the expert witness to be served under rule 9.7 or in giving any oral or affidavit evidence in any proceeding.

(3)

The evidence of an expert witness who has not complied with subclause (2)(a) may be offered only with the leave of the court.

Compare: HCR 9.43

9.35 Court may direct conference of expert witnesses

(1)

The court may, on its own initiative or on the application of a party to a proceeding, direct expert witnesses to—

(a)

confer on specified matters:

(b)

confer in the absence of the legal advisers of the parties:

(c)

try to reach agreement on matters in issue in the proceeding:

(d)

prepare and sign a joint witness statement stating the matters on which the expert witnesses agree and the matters on which they do not agree, including the reasons for their disagreement:

(e)

prepare the joint witness statement without the assistance of the legal advisers of the parties.

(2)

The court must not give a direction under subclause (1)(b) or (e) unless the parties agree.

(3)

The court may, on its own initiative or on the application of a party to the proceeding,—

(a)

appoint an independent expert to convene and conduct the conference of expert witnesses:

(b)

give any directions for convening and conducting the conference the court thinks just.

(4)

The court may not appoint an independent expert or give a direction under subclause (3) unless the parties agree.

(5)

Subject to any subsequent order of the court as to costs, the court may determine the remuneration of an independent expert and the party by whom it must be paid.

(6)

The matters discussed at the conference of the expert witnesses must not be referred to at the hearing unless the parties by whom the expert witnesses have been engaged agree.

(7)

An independent expert appointed under subclause (3) may not give evidence at the hearing unless the parties agree.

Compare: HCR 9.44

9.36 Status of joint witness statement by expert witnesses

(1)

A joint witness statement prepared by expert witnesses under rule 9.35

(a)

must be circulated by the parties to the proceeding by whom the expert witnesses have been engaged to every other party who has given an address for service; and

(b)

may be produced in evidence by any expert witness who signed the statement; and

(c)

may, if the parties to the proceeding agree, be produced in evidence without the need to call any of the expert witnesses who signed the statement.

(2)

Rules 9.7 to 9.11 apply, with all necessary modifications, to a joint witness statement.

(3)

An expert witness is not precluded from giving evidence on any matter at the hearing simply because the expert witness has participated in the preparation of a joint witness statement under rule 9.35.

Compare: HCR 9.45

9.37 Evidence of expert witnesses at trial

The court may, at the hearing, direct that the evidence of expert witnesses is given after all or certain factual evidence is given or in a sequence the court thinks best suited to the circumstances of the proceeding.

Compare: HCR 9.46

Subpart 5—Preserving evidence

9.38 Right to preserve evidence

A person may apply by originating application for an order for the examination of a witness whose evidence may be material for establishing a right or claim—

(a)

to any estate or interest in property, or to any other relief, to which the person would, in the circumstances alleged to exist, become entitled, on the happening of a future event; and

(b)

that cannot be established before the happening of the future event.

Compare: HCR 9.47

9.39 Procedures in which the Crown may have interest

If the Crown may have an estate or interest in the property or in the right or claim, the applicant may join the Crown as a respondent.

Compare: HCR 9.48

9.40 Examination of witness

An application under rule 9.38 is not to be set down for hearing but the court may make an appropriate order under rules 9.17 to 9.19 for the examination of a witness (whether offered by the applicant or another party).

Compare: HCR 9.49

9.41 Subsequent admissibility

Evidence taken under rule 9.40 may subsequently be offered at the trial of a proceeding to enforce the claim or interest to which it relates and is admissible unless it is inadmissible in whole or in part under the Evidence Act 2006.

Compare: HCR 9.50

Subpart 6—Evidence at trial

9.42 Evidence to be given orally

Unless otherwise directed by the court or required or authorised by these rules or by an Act, disputed questions of fact arising at the trial of any proceeding must be determined on evidence given by means of witnesses examined orally in open court.

Compare: HCR 9.51

9.43 Issue of witness summonses

(1)

A witness summons in form 27 to require the attendance of a witness at the trial to testify or to produce documents, or both, may be obtained by any party, at any time after the filing of the statement of claim.

(2)

A party requiring the issue of a witness summons must file a written request to obtain it.

(3)

The names of more than 1 witness may be included in a witness summons, but it is not necessary to show the names on the written request.

(4)

Upon receiving a written request under this rule, the Registrar must issue the summons requested.

Compare: HCR 9.52

9.44 Service of summons

A witness summons must be served on the witness personally, by leaving a sealed copy of it with the witness, together with any allowances and travelling expenses under the Witnesses and Interpreters Fees Regulations 1974.

Compare: HCR 9.53

9.45 Evidence of person in custody

An application for an order under section 65 of the Corrections Act 2004 may be made without notice.

Compare: HCR 9.54

9.46 Affidavit evidence by agreement

(1)

In a proceeding heard by a Judge alone, the parties may file an agreement signed by the parties that the evidence, or any part of the evidence, is to be given by affidavit.

(2)

Despite an agreement filed under subclause (1), the court may direct that evidence of any disputed fact or issue be given in accordance with rule 9.42.

Compare: HCR 9.55

9.47 Affidavit evidence under order of court

(1)

The court may, even though no agreement for the giving of evidence by affidavit has been made, at any time for sufficient reason order, on reasonable conditions,—

(a)

that any particular fact or facts may be proved by affidavit; or

(b)

that the evidence of any witness may be given by affidavit read at the trial or on any application for judgment.

(2)

Despite subclause (1), an order must not be made authorising the evidence of the witness to be given by affidavit if—

(a)

an opposite party desires the production of a witness for cross-examination; and

(b)

the witness can be produced.

(3)

Subclause (2) is subject to any order made under these rules.

Compare: HCR 9.56

9.48 Agreed statement of facts

(1)

If the parties so agree, the evidence at the trial of any proceeding heard by a Judge alone, or any issue in that proceeding, may be given, without examining any witnesses or filing any affidavits, by a statement of facts agreed upon by the parties.

(2)

Despite the agreement, the court may direct that evidence of any fact or matter be given in accordance with rule 9.42 or 9.47.

(3)

Every agreement under subclause (1) must be in writing signed by the parties and must be filed.

(4)

The agreement must set out the facts agreed upon, and the court is entitled to draw any necessary inferences from the agreed facts.

Compare: HCR 9.57

Subpart 7—Evidence in trans-Tasman proceedings

9.49 Interpretation

In rules 9.50 to 9.57, unless the context otherwise requires, terms that are defined in the Evidence Act 2006 have the meanings given to them by that Act.

Compare: HCR 9.58

9.50 Issue of subpoenas by District Court for service in Australia

(1)

An order of subpoena for service on a witness in Australia that requires the witness to testify, whether or not it also requires the witness to produce documents or things, must be in form 28.

(2)

An order of subpoena for service on a witness in Australia that requires the witness to produce documents or things, but does not require the witness to testify, must be in form 29.

(3)

An order of subpoena referred to in subclause (1) or (2) may be obtained in the same manner and subject to the same conditions as a witness summons under rule 9.43.

(4)

Leave to issue a subpoena for service in Australia must be obtained from the relevant court as defined in section 154 of the Evidence Act 2006 and rule 9.51.

Compare: HCR 9.59

9.51 Leave to serve New Zealand subpoena on witness in Australia

(1)

An application for leave to serve a New Zealand subpoena on a witness in Australia must be made without notice by originating application and subpart 2 of Part 20 applies, with all necessary modifications, to the application.

(2)

Every application for leave to serve a New Zealand subpoena on a witness in Australia must be accompanied by an affidavit stating—

(a)

the name, occupation, and residential address of the witness:

(b)

proof that the witness has attained the age of 18 years:

(c)

if the subpoena requires the witness to testify and to attend at the New Zealand court, whether consideration has been made to requiring the witness to testify from Australia by remote appearance medium and the reason it is not considered appropriate that the witness do so:

(d)

the latest date proposed for service of the subpoena:

(e)

if the subpoena requires the witness to attend at the New Zealand court or at any other place,—

(i)

the availability of suitable means of transport to enable the witness to comply with the subpoena:

(ii)

an estimate of the length of time that the witness will be required to attend at the court or other place:

(iii)

an estimate of the cost of transport and accommodation likely to be incurred by the witness in complying with the subpoena:

(f)

the amounts or the amounts represented by vouchers, as the case may be, proposed to be paid or tendered to the witness to enable the witness to comply with the subpoena:

(g)

if the applicant is aware of any fact or circumstance that may constitute a ground for setting the subpoena side under section 160 of the Evidence Act 2006, the fact or circumstance.

(3)

A Judge may direct that a New Zealand subpoena be served in Australia on a body corporate by serving the subpoena on a member, officer, or employee of the body corporate in the manner the Judge directs.

(4)

The file relating to an application must be kept separate from the file relating to the proceeding to which the subpoena relates.

(5)

As provided in rule 3.8(4), no document relating to an application under this rule may be searched, inspected, or copied without the leave of a Judge.

Compare: HCR 9.60

9.52 Service of subpoena on witness in Australia

Every statement that, in accordance with section 156 of the Evidence Act 2006, is required to accompany a subpoena that is served on a witness in Australia must be in HCF G 28.

Compare: HCR 9.61

9.53 Application to set aside New Zealand subpoena

(1)

An application to set aside a New Zealand subpoena served on a witness in Australia may be filed by—

(a)

a person who is entitled to file documents under these rules; or

(b)

a person who is entitled to practise as a solicitor of a Supreme Court of a State or territory of Australia.

(2)

The application—

(a)

may state (for the purposes of rule 9.55(1)) that a hearing is required to determine the application; and

(b)

may be filed by sending it by fax or email to the registry of the relevant court in which leave to serve the subpoena was given.

(3)

Every application must be made by way of interlocutory application.

(4)

The heading on the application may be the same as the heading on the order granting leave to serve the subpoena.

(5)

Every application—

(a)

must state an address in New Zealand or Australia that is the applicant’s address for service:

(b)

may state a fax number in New Zealand or Australia to which documents relating to the application may be sent to the applicant.

(6)

If the application is filed by fax or email, the Registrar—

(a)

must send by fax or email to the applicant or the applicant’s solicitor, as the case may be, an acknowledgement that the application has been received:

(b)

may, if the application is not clear or legible, require the applicant or the applicant’s solicitor, as the case may be, to transmit the application by fax or email again.

Compare: HCR 9.62

9.54 Service of documents on applicant

(1)

A document relating to an application to set aside a New Zealand subpoena may be served on the applicant by—

(a)

leaving it at, or posting it to, the address for service of the applicant stated in the application; or

(b)

if a fax number is stated in the application, sending it by fax to that number.

(2)

If a document relating to the application is served on the applicant by post in accordance with subclause (1)(a), it is to be treated as having been served on the earlier of—

(a)

the eighth working day after the date on which it was posted; and

(b)

the day on which it was received.

(3)

If a document relating to the application is served on the applicant by fax, the document must, subject to sublauses (4) and (5), be treated as having been served on the day on which it was sent.

(4)

If a document is sent by fax to a fax number in a State or territory of Australia at a time later than 5 pm in that State or territory, the document must, subject to subclause (4), be treated as having been served on the first working day after the day on which it was sent.

(5)

A document sent to a fax number in Australia must, unless the contrary is proved, be treated as having been received in a complete and legible condition.

Compare: HCR 9.63

Rule 9.54(2)(a): amended, on 1 July 2015, by rule 6 of the District Courts Amendment Rules 2015 (LI 2015/103).

9.55 Hearing of application

(1)

Despite any other rule, if neither the applicant for an order to set aside a New Zealand subpoena nor the person at whose request the subpoena was issued states that a hearing is required, the court may determine an application to set the subpoena aside without a hearing.

(2)

For the purposes of determining an application, the court may, if it thinks fit, hold a hearing by remote appearance medium under section 168 of the Evidence Act 2006.

(3)

Subject to the Evidence Act 2006, the court must hold a hearing by remote appearance medium if the applicant requests, either in the application or within a reasonable time after the filing of the application, that a hearing be held by remote appearance medium.

Compare: HCR 9.64

9.56 Failure to comply with subpoena

A certificate under section 161 of the Evidence Act 2006 must be in HCF G 29.

Compare: HCR 9.65

9.57 Evidence and submissions by remote appearance medium from Australia

(1)

An application under section 168 of the Evidence Act 2006 for a direction that evidence be given from Australia or submissions be made from Australia by remote appearance medium may be made without notice. Except in the case of an application under section 160 of that Act, the application must be accompanied by an affidavit stating—

(a)

the nature of the evidence or the submissions:

(b)

the place in Australia from which the evidence is to be given or the submissions are to be made:

(c)

if it is proposed that evidence be given or submissions be made by audiovisual link, particulars of the audiovisual link facilities available at the courtroom or other place where the court is to sit in New Zealand and at the place where the evidence is to be given or the submissions are to be made in Australia:

(d)

if it is proposed that evidence be given or submissions be made by audio link, particulars of the audio link facilities available at the courtroom or other place where the court is to sit in New Zealand and at the place where the evidence is to be given or the submissions are to be made in Australia:

(e)

in a case where evidence is proposed to be given, an estimate of the time the examination of the witness will take:

(f)

whether issues of character or credibility are likely to be raised:

(g)

in a case in which submissions are proposed to be made, an estimate of the time required to make the submissions.

(2)

When the court gives a direction under section 168 of the Evidence Act 2006, it must instruct the Registrar to make appropriate arrangements in New Zealand and Australia in accordance with any particular directions that the court may make.

(3)

Without limiting subclause (2), the court may—

(a)

direct that the evidence be given or the submissions be made at an Australian court or at another place in Australia:

(b)

request that an officer of an Australian court or other person approved by the Judge be present to assist in the transmission of evidence or submissions, and in particular to—

(i)

introduce witnesses giving evidence or a barrister or solicitor (or both) making submissions:

(ii)

assist with the administration of oaths:

(iii)

assist with the implementation of any directions or requests given or made by the Judge hearing the evidence or submissions.

(4)

In this rule, evidence includes the related examination of a person giving evidence.

Compare: HCR 9.67

Subpart 8—Procedure when evidence given by affidavit

9.58 Application of rules 9.59 to 9.64

(1)

Rules 9.59 to 9.64 apply subject to a direction by the court and to any rule affecting a particular kind of proceeding.

(2)

In this subpart, taker means the person before whom an affidavit is sworn or an affirmation is made.

Compare: HCR 9.68

9.59 Time for filing plaintiff’s affidavits

(1)

In this rule, the prescribed date means,—

(a)

if the parties have agreed under rule 9.46 that evidence be given by affidavit, the date when the agreement was filed:

(b)

when these rules provide that the evidence be given by affidavit, the close of pleadings date referred to in rule 7.6.

(2)

Within 10 working days after the prescribed date the plaintiff must, subject to rule 1.9, file the plaintiff’s affidavits and serve copies on the other parties.

Compare: HCR 9.69

9.60 Time for filing defendant’s affidavits

The defendant must, within 10 working days after service of the plaintiff’s affidavits, file the defendant’s affidavits and serve copies of them on the plaintiff and on any other party.

Compare: HCR 9.70

9.61 Time for filing affidavits in reply

Within 10 working days after service on the plaintiff of the defendant’s affidavits, the plaintiff must file the plaintiff’s affidavits in reply and serve copies of them on the defendant and on any other party.

Compare: HCR 9.71

9.62 Use of affidavits

(1)

No affidavit may be read or used until it has been filed.

(2)

When an affidavit has been filed, it may be used by any party.

(3)

An affidavit may not be taken off the file without the leave of the court.

Compare: HCR 9.72

9.63 Swearing of affidavits

(1)

An affidavit may be read and used in a proceeding only if it complies either with subclause (2) or (3).

(2)

A sworn affidavit must be sworn—

(a)

in accordance with the Oaths and Declarations Act 1957; and

(b)

before a person authorised to administer oaths under that Act or under rule 9.75 or 9.76.

(3)

An affirmed affidavit must comply with the Oaths and Declarations Act 1957.

Compare: HCR 9.73

9.64 Cross-examination of person who has sworn affidavit

(1)

A party desiring to cross-examine a person who has sworn or affirmed an affidavit on behalf of an opposite party may serve on that opposite party a notice in writing (which may be by letter addressed to the opposite party’s solicitor) requiring the production of that person for cross-examination before the court at the trial.

(2)

The notice must be served, and copies of it filed in the court and delivered to all other parties who have taken any step in the proceeding, not less than 3 working days before the day fixed for the trial.

(3)

The affidavit of a person who is not produced must not be used as evidence unless the evidence is routine, or there are exceptional circumstances, and in either case the court grants leave.

(4)

The party to whom the notice is given is entitled to compel the attendance of the person who has sworn an affidavit for cross-examination in the same way as that party might compel the attendance of a witness to be examined.

Compare: HCR 9.74

9.65 Person refusing to make affidavit

(1)

If a person having information relevant to a proceeding or an interlocutory application refuses to make an affidavit as to that information, a party may apply for an order directing the person to appear and be examined on oath before the court, or any person the court appoints, as to that information.

(2)

The court may—

(a)

make any orders the court thinks just for the attendance of that person before the court, or before the person named in the order, for the purpose of being examined, and for the production of any documents specified in the order; and

(b)

impose any terms the court thinks just, as to the examination and the costs of and incidental to the application and examination.

Compare: HCR 9.75

9.66 Form and contents of affidavits

(1)

An affidavit—

(a)

must be expressed in the first person; and

(b)

must state the full name, occupation, and place of residence of the person making it; and

(c)

must either—

(i)

be signed by that person; or

(ii)

if that person cannot write, have that person’s mark set to it by that person; and

(d)

must be confined—

(i)

to matters that would be admissible if given in evidence at trial by the deponent; and

(ii)

if in reply, to matters strictly in reply.

(2)

The court—

(a)

may refuse to read an affidavit that—

(i)

unnecessarily sets forth any argumentative matter or copies of or extracts from documents; or

(ii)

being in reply, introduces new matter; and

(b)

may order that the costs incurred in respect of or occasioned by an affidavit to which paragraph (a) applies be paid by the party filing the affidavit.

(3)

The taker must sign the affidavit after the signature of the person making it, and must state the date and place of swearing or affirming the affidavit and the taker’s qualification (in this subpart referred to as the statement by the taker).

(4)

If an affidavit has more than 1 page,—

(a)

the deponent must initial or set the deponent’s mark on each page (not including the cover sheet) that precedes the page on which the statement by the taker in accordance with subclause (3) appears; and

(b)

the taker must initial each of those pages.

(5)

This rule does not limit the extent to which subpart 2 of Part 5 applies in respect of affidavits.

Compare: HCR 9.76

9.67 Exhibits to affidavits

(1)

Exhibits to an affidavit—

(a)

must be marked, in each case, with a distinguishing letter or number or both; and

(b)

must be annexed to the affidavit—

(i)

if this is practicable; and

(ii)

if none of them exceed international size A4; and

(c)

must, in each case, be identified by a note made on it and signed by the taker.

(2)

Exhibits that are not annexed to the affidavit must, subject to subclause (3), be filed with the affidavit in a separate bundle, which bundle must—

(a)

be securely bound; and

(b)

include a sheet bearing a proper heading, endorsement, and subscription.

(3)

If the size, shape, or nature of an exhibit makes it impracticable to comply with subclause (1)(b) or (2), that exhibit must have firmly affixed to it a sheet bearing a proper heading, endorsement, and subscription.

Compare: HCR 9.77

9.68 Interlineation, alteration, or erasure in affidavit

(1)

An affidavit having in the statement by the taker or its contents an interlineation, alteration, or erasure must not, without leave of the court, be read or made use of in a proceeding unless the requirements set out in subclause (2) are satisfied.

(2)

The requirements are that—

(a)

the interlineation or alteration (other than by erasure) must be authenticated by the initials of the taker; or

(b)

in the case of an erasure, where replacement words or figures are written over the erasure, those words must also be rewritten in the margin and signed or initialled by the taker.

Compare: HCR 9.78

9.69 Irregularity in form of affidavit

The court may receive any affidavit sworn or affirmed for the purpose of being used in any proceeding, despite any defect by misdescription of parties in the title or statement by the taker, or any other irregularity in its form, and may direct that a note be made on the document that it has been so received.

Compare: HCR 9.79

9.70 Service copies of affidavits

Every service copy of an affidavit must be legible and, when practicable, include legible copies of all exhibits.

Compare: HCR 9.80

9.71 Affidavit may be sworn on Sunday

An affidavit may be sworn or affirmed on any day, including Sunday.

Compare: HCR 9.81

9.72 Affidavits made on behalf of corporation

A person may make an affidavit on behalf of a corporation or body of persons empowered by law to sue or to be sued (whether in the name of the body or in the name of the holder of an office) if the person—

(a)

knows the relevant facts; and

(b)

is authorised to make the affidavit.

Compare: HCR 9.82

9.73 Affidavit by 2 or more persons

In an affidavit made by 2 or more persons, the names of each of those persons must be inserted in the statement by the taker. If, however, the affidavit of those persons is sworn (or affirmed) at the same time before the same person, it is sufficient to state that it was sworn (or affirmed) by both (or all) of the “persons named above”.

Compare: HCR 9.83

9.74 Affidavit by blind or illiterate person

If it appears to the taker that the person making the affidavit is wholly or partially blind, or (whether because of physical handicap or otherwise) is unable to read or has severe difficulty in reading, the taker must certify in the affidavit—

(a)

that the affidavit was read and explained by him or her to the person; and

(b)

that the person appeared perfectly to understand the affidavit; and

(c)

that the person wrote his or her signature or made his or her mark in the presence of the taker.

Compare: HCR 9.84

9.75 Authority to take affidavits in New Zealand

(1)

An affidavit may be sworn in New Zealand before a solicitor of the court or a Registrar or a Justice of the Peace.

(2)

No affidavit, other than one sworn in respect of a non-contentious proceeding, may 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.

(3)

Subclause (2) overrides subclause (1).

(4)

In this rule,—

Registrar includes—

(aa)

a Registrar of the High Court:

(a)

a Deputy Registrar of the High Court:

(b)

a Registrar of a District Court:

(c)

a Deputy Registrar of a District Court

solicitor means a person enrolled as a barrister and solicitor of the High Court.

Compare: HCR 9.85

Rule 9.75(4)(aa): inserted, on 1 July 2015, by rule 7 of the District Courts Amendment Rules 2015 (LI 2015/103).

9.76 Authority to take affidavits in places outside New Zealand

(1)

An affidavit may be sworn in a place outside New Zealand before—

(a)

a Commissioner of the High Court of New Zealand who has authority in that place; or

(b)

a person who is authorised to administer oaths by the law of that place; or

(c)

a person who is authorised by a Judge to administer the oath required for the affidavit.

(2)

The person administering an oath under subclause (1) must state in the affidavit which qualification that person has.

(3)

An affidavit that appears to comply with subclauses (1) and (2) must be taken to have been properly sworn unless the court requires verification by evidence or other means of any matter relating to compliance with either of those subclauses.

(4)

Nothing in this rule affects the administering of oaths under the Oaths and Declarations Act 1957.

Compare: HCR 9.86

9.77 Meaning of authenticated deposition

In rules 9.78 and 9.79, authenticated deposition means a written statement—

(a)

made in a place outside New Zealand before a court or a judicial or other authority or person; and

(b)

the maker of which is, under the law in force in the place in which the statement is made, liable to punishment if the statement is false; and

(c)

that purports to be—

(i)

signed by a person holding judicial office or by an official exercising authority under the law in force in the place in which the statement is made; or

(ii)

sealed with an official or public seal or with the seal of a Minister of State, or with the seal of a department or an official of the government exercising authority in the place in which the statement is made; or

(iii)

endorsed with or accompanied by a certificate, given by a person having authority under the law in force in the place in which the statement is made to give the certificate, that the statement complies with the requirements of the law in force in that place and that, under that law, the maker of the statement is liable to punishment if the statement is false.

Compare: HCR 9.87

9.78 Admissibility of authenticated deposition

Evidence that may, under these rules, be given by affidavit, may be given in an authenticated deposition.

Compare: HCR 9.88

9.79 Application of other rules

(1)

Rules 9.59 to 9.65 apply, with any necessary modifications, in relation to an authenticated deposition as if the deposition were an affidavit.

(2)

Rule 9.78 and this rule do not affect rules 9.17 to 9.24.

Compare: HCR 9.89

Part 10 Trial

Subpart 1—Mode of trial

10.1 Criteria for mode of trial

(1)

The modes of trial available in a proceeding are—

(a)

the short trial:

(b)

the simplified trial:

(c)

the full trial.

(2)

In deciding the appropriate mode of trial, the court may have regard to the following:

(a)

the number of parties:

(b)

the complexity of the issues:

(c)

the amount at stake:

(d)

proportionality:

(e)

the nature of the action:

(f)

party requests:

(g)

any other matter the court considers relevant.

(3)

The short trial is intended for claims where the court considers that 1 or more of the following apply:

(a)

the case can come to a hearing quickly:

(b)

the issues are relatively uncomplicated or a modest amount is at stake:

(c)

the trial time is not likely to exceed a day.

(4)

The simplified trial is intended for claims where the court considers that 1 or more of the following apply:

(a)

the duration of the hearing is not likely to exceed 3 days:

(b)

there is some complexity raised by the issues:

(c)

the amount of money involved is more than modest:

(d)

1 or more expert witnesses will be giving evidence.

(5)

If the court considers that neither subclause (3) nor subclause (4) applies, the court must allocate a full trial.

Compare: SR 2009/257 rr 2.40, 2.41

10.2 Mode of trial may be changed before trial

Before any trial is due to commence, the court may, either on the application of any party made in form 30 or of its own motion, change the mode of trial determined for the proceeding and give any directions it considers necessary for the purpose.

Short trial

10.3 Timetable for short trial

If the court decides that a short trial is to be held,—

(a)

the court or Registrar must set a date for the trial; and

(b)

within 15 working days after the date of the decision to hold a short trial, each party must file and serve on the other parties—

(i)

that party’s affidavits of evidence-in-chief; and

(ii)

copies of any further documents on which that party intends to rely; and

(c)

once a party has received the affidavits of evidence-in-chief, the receiving party must, by notice given to the other party within 10 working days after the date of receipt of those affidavits, specify which of the other party’s witnesses the receiving party requires to be available for cross-examination at the short trial; and

(d)

rules 9.2 to 9.6, 9.8, 9.11, and 9.14 apply to a short trial as if the references in those rules to briefs or to briefs served under rule 9.7 were references to affidavits of evidence served under this rule.

Compare: SR 2009/257 r 2.44

10.4 Features of short trial

(1)

The features of the short trial procedure are as follows:

StepsRequirements
1Affidavits of evidenceThe only evidential statements allowed to be produced are the affidavits of evidence.
2Oral evidenceSupplementary evidence or oral evidence in reply is allowed.
3Production of bundles of documents for trialBundles are required.
4Judicial settlement conferenceThis conference is not required.

(2)

The total time for the presentation of a party’s case must not exceed the total time calculated as follows:

ItemTime limit (minutes)
1Examination of witnesses15 per witness
2Cross-examination of witnesses45 per witness
3Re-examination of witness10 per witness
4Submissions for a party30 per party

(3)

However, the court may, for good reason consistent with the objective of these rules, extend the total time available to a party.

(4)

The other provisions of these rules that relate to interlocutory applications, evidence, and the conduct of a trial apply to proceedings to be dealt with by a short trial only to the extent that the Judge so orders.

Compare: SR 2009/257 r 2.45

Simplified trial

10.5 Affidavits of evidence and copies of documents for simplified trial

(1)

A plaintiff must serve on each other party, at least 45 working days before the simplified trial,—

(a)

the plaintiff’s affidavits of evidence-in-chief; and

(b)

copies of any further documents on which the plaintiff intends to rely at trial.

(2)

A defendant must serve on each other party, at least 30 working days before the simplified trial,—

(a)

the defendant’s affidavits of evidence-in-chief; and

(b)

copies of any further documents on which the defendant intends to rely at trial.

(3)

Each other party must serve on each other party, at least 15 working days before the simplified trial,—

(a)

that party’s affidavits of evidence-in-chief; and

(b)

copies of any further documents on which that party intends to rely at trial.

(4)

Rules 9.2 to 9.6, 9.8, 9.11, and 9.14 apply to a simplified trial as if the references in those rules to briefs or to briefs served under rule 9.7 were references to affidavits of evidence served under this rule.

Compare: SR 2009/257 r 2.51

10.6 Witnesses at simplified trial

(1)

A witness need appear at a simplified trial only if—

(a)

a party has served a notice to cross-examine the witness in form 31 and filed it before the trial starts; or

(b)

the Judge so requests.

(2)

Each party is limited to 1 expert witness per specialist discipline unless the court allows more witnesses by leave.

Compare: SR 2009/257 r 2.52

10.7 Features of simplified trial

(1)

The features of the simplified trial are as follows:

StepsRequirements
1Affidavits of evidence and copies of documentsThis is to be in accordance with rule 10.5.
2Oral evidenceSupplementary evidence or oral evidence in reply is allowed.
3WitnessesAs allowed under rule 10.6.
4Production of bundles of documents for trialBundles are required.

(2)

The total time for the presentation of a party’s case must not exceed the total time calculated as follows:

Description of proceedingTime limit (minutes)
1Examination of witnesses20 per witness
2Cross-examination of witnesses60 per witness
3Re-examination of witnesses10 per witness
4Submissions for a party30 per party

(3)

However, the court may, for good reason consistent with the objective of these rules, extend the total time available to a party.

(4)

The other provisions of these rules that relate to interlocutory applications, evidence, and the conduct of a trial apply to proceedings to be dealt with by a simplified trial only to the extent that the Judge so orders.

Compare: SR 2009/257 r 2.53

Full trial

10.8 Full procedure applies to full trial

Parts 8 and 9 apply without limitation to proceedings to be dealt with by a full trial.

Compare: SR 2009/257 r 2.54

Subpart 2—Place

10.9 Venue and changing it

(1)

The place of trial is the town where the registry of the court in which the statement of defence is to be filed is situated.

(2)

Despite subclause (1), the court may at any time order that the proceeding be tried at a place—

(a)

that the parties consent to; or

(b)

where the proceeding can be more conveniently or more fairly tried.

(3)

When the court orders a change of venue, it may direct that all subsequent steps in the proceeding be taken at the place where the trial is to take place.

Compare: HCR 10.1

Subpart 3—Adjournments, methods of trial

10.10 Adjournment of trial

The court may, before or at the trial, if it is in the interests of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just.

Compare: HCR 10.2

10.11 Method of trial

A proceeding must be tried before a Judge alone.

Compare: HCR 10.3

10.12 Court may order separate trials

When justice requires, the court may order separate trials of causes of action, and it may also direct the sequence of the separate trials and make any supplementary order that is just.

Compare: HCR 10.4

10.13 When neither party appears

(1)

If neither party appears when the proceeding is called, the court may order it to be struck out.

(2)

The court may order the proceeding to be reinstated on good cause shown by either party and on any terms it thinks just.

Compare: HCR 10.6

10.14 When only plaintiff appears

If the plaintiff appears and the defendant does not, the plaintiff must prove the cause of action so far as the burden of proof lies on the plaintiff.

Compare: HCR 10.7

10.15 When only defendant appears

If the defendant appears but the plaintiff does not, the defendant,—

(a)

if the claim is not admitted, is entitled to judgment dismissing the proceeding; and

(b)

if there is a counterclaim, must prove it so far as the burden of proof lies on the defendant.

Compare: HCR 10.8

10.16 Judgment following non-appearance may be set aside

Any judgment obtained when one party does not appear at the trial may be set aside or varied by the court on any terms that are just if there has been, or may have been, a miscarriage of justice.

Compare: HCR 10.9

10.17 When both parties appear

(1)

If both the plaintiff and the defendant appear, the plaintiff or any other party that has the right to begin must open the case and offer any evidence in support of it.

(2)

When the party who begins has closed that party’s case, the other party must state his or her case and offer any evidence in support of it.

(3)

After the evidence has been given, the party who did not begin may address the court generally on the case, and then the other party may address the court in reply.

(4)

If, however, the party who did not begin has not offered evidence, the sequence stated in subclause (3) is reversed.

(5)

This rule applies subject—

(a)

to any directions given under rule 7.2, 7.4, or 7.5; and

(b)

to the provisions of any Act.

Compare: HCR 10.10

Subpart 4—Consolidation of proceedings

10.18 When order may be made

The court may order that 2 or more proceedings be consolidated on terms it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them, if the court is satisfied—

(a)

that some common question of law or fact arises in both or all of them; or

(b)

that the rights to relief claimed in those proceedings are in respect of or arise out of—

(i)

the same event; or

(ii)

the same transaction; or

(iii)

the same event and the same transaction; or

(iv)

the same series of events; or

(v)

the same series of transactions; or

(vi)

the same series of events and the same series of transactions; or

(c)

that for some other reason it is desirable to make an order under this rule.

Compare: HCR 10.12

10.19 Application of rule 10.18

Rule 10.18 applies even though—

(a)

the relief claimed in the proceedings is not the same; or

(b)

1 or more of the proceedings—

(i)

is pending in the court in the exercise of its admiralty jurisdiction; or

(ii)

is brought under the provisions of an Act conferring special jurisdiction on the court.

Compare: HCR 10.13

Subpart 5—Separate decision of questions

10.20 Definition of question

In rules 10.21 to 10.26, question includes any question or issue in any proceeding, whether of fact or of law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties, or otherwise.

Compare: HCR 10.14

10.21 Orders for decision

The court may, whether or not the decision will dispose of the proceeding, make orders for—

(a)

the decision of any question separately from any other question, before, at, or after any trial or further trial in the proceeding; and

<