High Court Rules 2016

Reprint as at 18 October 2016

Coat of Arms of New Zealand

High Court Rules 2016

(LI 2016/225)

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.

These rules—

(a)

are deemed to form part of the Senior Courts Act 2016 under section 147 of that Act; but

(b)

are published as the High Court Rules 2016, as if they were a legislative instrument within the meaning of the Legislation Act 2012, under section 154 of the Senior Courts Act 2016.

Contents

1.1Title
1.2Objective
1.3Interpretation
1.4Application
1.5Non-compliance with rules
1.6Cases not provided for
1.7Oral applications for relief
1.8Consent instead of leave of court
1.9Amendment of defects and errors
1.10Security
1.11Speaking in Māori
1.12Translation of documents into te reo Māori
1.13Failure to give notice
1.14Translation may be ordered by court
1.15Affidavit in language other than English
1.16Sign language
1.17Calculating periods of time
1.18When time expires when court registry is closed
1.19Extending and shortening time
1.20Lawyers’ duties
1.21Variation of forms
1.22Communication with foreign court
2.1Jurisdiction and powers
2.2Interim order on transfer of proceeding
2.3Review of decision
2.4Appeal to Court of Appeal
2.5Registrars’ jurisdiction and powers relating to interlocutory applications
2.6Additional jurisdiction for certain Registrars
2.7Limits on jurisdiction
2.8Powers ancillary to jurisdiction
2.9Jurisdiction in other registries
2.10Form of order
2.11Review of Registrar’s decision
3.1Registry hours
3.2Court holidays
3.3Sitting on court holidays
3.3AVacations
3.4Epidemics and emergencies
3.5Interpretation
3.6Application
3.7General right of access to formal court record and certain applications under Administration Act 1969
3.8Right of parties to access court file or documents
3.9Access to documents during substantive hearing stage
3.10Meaning of relevant deadline in rule 3.9
3.11Access to court files, documents, and formal court record in other cases
3.12Restrictions on access
3.13Applications for permission to access documents, court file, or formal court record other than at hearing stage
3.14Decisions on applications under rule 3.13
3.15Review of decisions by Registrar
3.16Matters to be taken into account
3.17Application for order
3.18Powers of court in relation to application
3.19Disposal of securities and income
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
5.1Identification of proper registry
5.2Non-complying documents
5.3Paper
5.4Contents to be typed, etc
5.5Margin
5.6Signature to be original
5.7Cover sheet, numbering, and fastening of document
5.8Description of document
5.9Heading generally
5.10Format of cover sheet
5.11Heading on statement of claim and counterclaim
5.12Heading on judgment and certain orders
5.13Heading on other documents
5.14Division into paragraphs
5.15Numbers
5.16Information at foot of cover sheet
5.17Distinct matters to be stated separately
5.18Denial of representative character
5.19Denial of contract
5.20Effect of document to be stated
5.21Notice requiring further particulars or more explicit pleading
5.22Notice of proceeding to be filed with statement of claim
5.23Requirements as to notice of proceeding
5.24When not necessary to file notice of proceeding
5.25Proceeding commenced by filing statement of claim
5.26Statement of claim to show nature of claim
5.27Statement of claim to specify relief sought
5.28Inclusion of several causes of action
5.29Joint plaintiffs
5.30Joining claims by or against spouses or partners
5.31Specifying relief sought
5.32Amount of money claim
5.33Special damages
5.34Set-off
5.35Representative capacity of party
5.36Authority to file documents
5.36AAuthority of certain Australian solicitors in certain trans-Tasman proceedings
5.37Solicitor’s warranty as to authorisation to file documents
5.38Solicitor on record
5.39Authority to sign documents
5.40Change of representation or address for service
5.41Withdrawal of solicitor who has ceased to act for party
5.42Address for service of party whose solicitor has ceased to act
5.43Solicitors to inform clients of orders or directions
5.44Memorandum at end of first document filed by party
5.45Order for security of costs
5.46Solicitor not to be surety
5.47Filing and service of statement of defence
5.48Requirements of statement of defence
5.49Appearance and objection to jurisdiction
5.50Appearance for ancillary purposes
5.51Appearance reserving rights
5.52Forms
5.53Counterclaim against plaintiff only
5.54Heading of counterclaim
5.55Filing and service
5.56Defence to counterclaim
5.57Counterclaim against plaintiff and another person
5.58Place of trial of counterclaim
5.59Status of counterclaim if proceeding stayed
5.60Counterclaim by counterclaim defendant
5.61Restriction when the Crown involved
5.62Duty to file and serve reply
5.63Contents of reply
5.64Application of rules
5.65Documents to be filed in proper registry
5.66On filing treated as proceeding
5.67Title of documents
5.68Time for filing statement of defence
5.69Transfer under section 45 of District Courts Act 1947
5.70Service generally
5.71Personal service required
5.72Prompt service required
5.73Extension of time for service
5.73ANotice 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
6.13APersonal service on Australian corporations, partnerships, and attorneys
6.13BPersonal service in Australia on foreign corporations
6.14Personal service on unincorporated societies
6.15Personal service on partnership or apparent partnership
6.16Personal service on attorney or agent of absentee
6.17Service on representatives
6.18Service on solicitor
6.19Service of statement of claim on certain days void
6.20Failure to give address for service
6.21Service of foreign process
6.22Sheriff to effect service
6.23Method of service
6.24Return as to service
6.25Certification
6.26Sealing and transmission of certificate
6.27When allowed without leave
6.28When allowed with leave
6.29Court’s discretion whether to assume jurisdiction
6.30Service of other documents outside New Zealand
6.31Notice to defendant served outside New Zealand
6.32Service outside New Zealand
6.33Service through official channels
6.34Service in convention countries
6.35Time for filing defence
6.36Subpart does not apply to service in Australia of documents for or in certain trans-Tasman proceedings
7.1AAOutline of case management procedures for different types of proceedings
7.1Proceedings subject of case management
7.2Case management conferences generally
7.3First case management conferences
7.4Further case management conferences
7.5Issues conferences
7.6Allocation of key dates
7.7Steps after close of pleadings date restricted
7.8Pre-trial conferences
7.9Cancellation of conference
7.10Limitation of right of appeal
7.11Timetable and monitoring obligations
7.12Lists of proceedings
7.13Registrar’s functions in relation to hearing dates
7.14Case management conferences for appeals
7.15Directions for conduct of appeal
7.16Jury notice
7.17Case management conferences for proceedings under Part 30
7.18No steps after setting down date without leave [Revoked]
7.19Contents, form, and filing of interlocutory application
7.20Affidavit to be filed with application
7.21Filing by post
7.22Service of application and supporting affidavit
7.23Application without notice
7.24Notice of opposition to application
7.25Affidavit to be filed with notice of opposition
7.26Affidavit in reply
7.27Evidence normally given by affidavit
7.28Cross-examination of maker of affidavit
7.29Rules governing affidavits
7.30Statements of belief in affidavits
7.31When admissions binding
7.32Previous affidavits and agreed statements of fact
7.33Allocation of hearing date
7.34Mode of hearing
7.35Publication about hearing in chambers
7.36Application for summary judgment to be heard in open court
7.37No hearing required if respondents consent or do not oppose
7.38Respondent who consents, or who does not oppose, need not attend hearing
7.39Synopsis of argument
7.40Failure to attend
7.41Certain applications may be made orally at hearing
7.42Adjournment
7.43Making of interlocutory orders
7.43ADirections as to conduct of proceedings
7.44Power to grant interlocutory order or interlocutory relief
7.45Interlocutory orders may be made subject to conditions
7.46Determination of application without notice
7.47Drawing up and sealing interlocutory order
7.48Enforcement of interlocutory order
7.49Order may be varied or rescinded if shown to be wrong
7.50Order relating to management of proceeding may be varied if circumstances change
7.51Order may be rescinded if fraudulently or improperly obtained
7.52Limitation as to second interlocutory application
7.53Application for injunction
7.54Undertaking as to damages
7.55Preservation of property
7.56Sale of perishable property before hearing
7.57Order to transfer part of property to person with interest in property
7.58Interim payment of income to person with interest in income
7.59Application
7.60Address for service
7.61Receiver must give security
7.62Remuneration of receiver
7.63Accounts of receiver
7.64Examination of accounts
7.65Default by receiver
7.66Powers of receiver
7.67Accounts on death of receiver
7.68Interpretation
7.69Application for interim payment
7.70Order for interim payment in respect of damages
7.71Order for interim payment in respect of sums other than damages
7.72Method of payment
7.73Directions on interim payment application
7.74Non-disclosure of interim payment
7.75Adjustment on final judgment or order or on discontinuance
7.76Counterclaims and other proceedings
7.77Filing of amended pleading
7.78Recovery of specific property subject to lien or other security
7.79Court may assist in negotiating for settlement
7.80Arbitration by consent
7.81Interim relief in support of overseas proceedings
8.1Interpretation
8.2Co-operation
8.3Preservation of documents
8.4Initial disclosure
8.5Discovery orders to be made at 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 first 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
9.25Letters of request where convention exists
9.26Issue of letters of request
9.27Agents of parties
9.28Consequences of non-compliance with undertaking as to expenses
9.29Application by Solicitor-General on letters of request from abroad
9.30Order for medical examination
9.31Report
9.32Service of report
9.33Evidence of medical practitioner when medical examination ordered
9.34Order for inspection, etc
9.35Notice of application
9.36Appointment of court expert
9.37Submission of question to court expert
9.38Report of court expert
9.39Experiments and tests
9.40Cross-examination of court expert
9.41Remuneration of court expert
9.42Calling of expert witnesses
9.43Expert witness to comply with code of conduct
9.44Court may direct conference of expert witnesses
9.45Status of joint witness statement by expert witnesses
9.46Evidence of expert witnesses at trial
9.47Right to preserve evidence
9.48Procedures in which the Crown may have interest
9.49Examination of witness
9.50Subsequent admissibility
9.51Evidence to be given orally
9.52Issue of subpoenas
9.53Service of subpoena
9.54Evidence of person in custody
9.55Affidavit evidence by agreement
9.56Affidavit evidence under order of court
9.57Agreed statement of facts
9.58Interpretation
9.59Issue of subpoenas by High Court for service in Australia
9.60Leave to serve New Zealand subpoena on witness in Australia
9.61Service of subpoena on witness in Australia
9.62Application to set aside New Zealand subpoena
9.63Service of documents on applicant
9.64Hearing of application
9.65Failure to comply with subpoena
9.66Transmission of documents or things to Australian Court
9.67Evidence and submissions by remote appearance medium from Australia
9.68Application of rules 9.69 to 9.74
9.69Time for filing plaintiff’s affidavits
9.70Time for filing defendant’s affidavits
9.71Time for filing affidavits in reply
9.72Use of affidavits
9.73Swearing of affidavits
9.74Cross-examination of person who has sworn affidavit
9.75Person refusing to make affidavit
9.76Form and contents of affidavits
9.77Exhibits to affidavits
9.78Interlineation, alteration, or erasure in affidavit
9.79Irregularity in form of affidavit
9.80Service copies of affidavits
9.81Affidavit may be sworn on Sunday
9.82Affidavits made on behalf of corporation
9.83Affidavit by 2 or more persons
9.84Affidavit by blind or illiterate person
9.85Authority to take affidavits in New Zealand
9.86Authority to take affidavits in places outside New Zealand
9.87Meaning of authenticated deposition
9.88Admissibility of authenticated deposition
9.89Application of other rules
10.1Venue and changing it
10.2Adjournment of trial
10.3Method of trial
10.4Court may order separate trials
10.5Existence or accuracy of record
10.6When neither party appears
10.7When only plaintiff appears
10.8When only defendant appears
10.9Judgment following non-appearance may be set aside
10.10When both parties appear
10.11When proceeding tried with jury
10.12When order may be made
10.13Application of rule 10.12
10.14Definition of question
10.15Orders for decision
10.16Removal into Court of Appeal
10.17Agreed result
10.18Record, etc, of decision
10.19Disposal of proceeding if proceeding substantially affected by decision of question
10.20Form and contents of case
10.21Insufficient case or disputed facts or documents
10.22Counsel assisting
10.23Interpretation
10.24Judge may preside at hearing of certain matters by video link
10.25Requirements for hearing by video link
10.26Incidental directions
11.1Interpretation
11.2Types of judgment
11.3How judgment given
11.4Time judgment given
11.5Delivery time of written judgment
11.6Form of judgment
11.6AGeneral court order
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
11.15Judgment after proceeding tried with jury
11.16Leave to apply to set aside judgment
11.17Judgment not in accordance with verdict
11.18Application for judgment on special verdict or subject to special case
11.19Application for judgment by both parties
11.20Conduct of proceedings after judgment
11.21Applying for dismissal because of inactivity
11.22Judgment directing sale of property
11.23Judgment for balance of claim over counterclaim
11.24Judgment for balance of counterclaim
11.25Cross judgments
11.26Judgment if third party defends
11.27Interest on judgment debt
11.28Satisfaction of judgment
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 on interlocutory applications
14.9Costs may be determined by different Judge or Associate Judge
14.10Written offers without prejudice except as to costs
14.11Effect on costs
14.12Disbursements
14.13Proceedings within jurisdiction of District Court
14.14Joint and several liability for costs
14.15Defendants defending separately
14.16Claim and counterclaim both established
14.17Set-off if costs allowed to both parties
14.18Appointment to tax costs
14.19Taxation of disbursements
14.20No charge allowed for bill of costs
14.21Registrar sole judge of questions of fact
14.22Direction to Registrar to ascertain expenses
14.23Review of taxation
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
15.12Other proceedings [Revoked]
15.13Judgment may be set aside or varied [Revoked]
15.14Overseas service cases [Revoked]
15.15Judgment on admission of facts
15.16Admission of cause of action
15.17Admission of defence
15.18Interpretation
15.19Right to discontinue proceeding
15.20Restrictions on right to discontinue proceeding
15.21Effect of discontinuance
15.22Court may set discontinuance aside
15.23Costs
15.24Restriction on subsequent proceedings
15.25Certain 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
16.21Interest on legacies
16.22Accounting and estimates
16.23Directions for inquiries
16.24Powers of persons taking accounts or making inquiries
16.25Duty of persons summoned to attend
16.26Time for proving claims
16.27Statement of claim to be filed
16.28Failure to claim within time
16.29Result to be certified
16.30Party may ask for court’s decision
16.31Certificate when approved to be signed by Judge
16.32Effect of certificate when filed
16.33Distribution before all persons entitled are ascertained
16.34Payment of share carried over to separate trust account
17.1Interpretation
17.2Method of enforcing orders
17.3Method of enforcing judgments
17.4No excessive recovery
17.5No enforcement against the Crown
17.6Enforcement by or against non-parties
17.7Enforcement against partners or alleged partners
17.8Issuing enforcement process as of right
17.9When leave to issue enforcement process necessary
17.10Notice to liable party to complete financial statement
17.11Interpretation
17.12Order for examination
17.13Service of order for examination
17.14Examining party’s affidavit
17.15Procedure for examination
17.16Adjournment of hearing
17.17Orders by court
17.18Failure to comply with order for examination
17.19Certification of breach of arrest order
17.20Discharge of arrest order
17.21Enforcement process to conform with judgment
17.22Preparation and issue of enforcement processes
17.23Date of enforcement process
17.24Currency and renewal of enforcement processes (except for charging orders)
17.25Expenses of enforcement
17.26Concurrent enforcement processes
17.27Return of enforcement process
17.28Reissue of enforcement process
17.29Stay of enforcement
17.30Enforcement process may be set aside
17.31Interpretation
17.32Effect of attachment order
17.33When attachment order may be issued
17.34Attachment order to be served on employer
17.35Priority of attachment order
17.36Protected earnings amount
17.37Liability of employer
17.38Attachment orders in State services
17.39Variation, suspension, and discharge of attachment orders
17.40Effect of charging order
17.41Leave to issue charging order
17.42Issue of charging order without leave after judgment
17.43Charging order where amount involved small
17.44Application for relief by persons prejudicially affected
17.45Claim of third party on property charged
17.46Apportionment when more than 1 charging order
17.47Charging order for land final when issued
17.48Registration of charging order under Land Transfer Act 1952
17.49Registration of charging order not under Land Transfer Act 1952
17.50Sale before registration of charging order
17.51Discharge of land from charging order
17.52Lapse of charging order after 2 years
17.53Personal property may be charged
17.54Interim charging order in first instance
17.55Effect of interim charging order
17.56Liability of persons breaching interim charging order
17.57Money may be paid into court
17.58Court may order sale of property affected
17.59Application to make final charging order after judgment
17.60Execution after charging order made final
17.61Discharge of person served with order
17.62Effect of sale order
17.63When sale order may be issued
17.64Execution for less than full amount of judgment
17.65Recovery of money owing on cheques and other securities
17.66Discharge of person paying on cheque or other security
17.67Disposal of proceeds
17.68Not necessary to seize land
17.69Moving seized chattels
17.70Place of sale
17.71Advertising of notice of sale
17.72Service of notice of sale on liable party
17.73Contents of notice of sale
17.74Method and conditions of sale
17.75Powers of enforcing officer in relation to sale by auction
17.76Power of enforcing officer to seize title deeds
17.77Order of sale of land and chattels
17.78Power of liable party or mortgagee to give directions concerning sale of land
17.79Transfers, etc, to purchaser
17.80Effect of possession order
17.81When possession order may be issued
17.82Combined sale and possession order
17.83Effect of arrest order
17.84Power to issue arrest order
17.85Power to commit to prison for disobedience
17.86Effect of sequestration order
17.87Power to issue sequestration order
17.88Arrest of absconding debtor
17.89Process for order to arrest and imprison defendant
17.90Security by absconding debtor
17.91Orders about security
17.92Discharge on payment
18.1Types of proceedings
18.2Limited application of this Part to proceedings under Property (Relationships) Act 1976
18.3This Part subject to rules under other Acts
18.4Commencement of proceedings
18.5Naming of defendants in cases involving deceased estates or trusts
18.6Persons served by direction of court need not be named as defendant
18.7Applications for directions as to service
18.8Orders giving directions as to service
18.9Proceeding without service
18.10Time for serving claimant’s affidavit in proceedings under Family Protection Act 1955
18.11Time for serving affidavit in support of appearance
18.12Statement of defence to be filed
18.13Joining in proceedings under Family Protection Act 1955 and Law Reform (Testamentary Promises) Act 1949
18.14Joinder of claims and consolidation
18.14AProcedure under section 174 of Companies Act 1993
18.14BService of order made under section 174 of Companies Act 1993
18.15Evidence generally by agreed statement of facts or affidavit
19.1Meaning of originating application
19.2Applications under certain enactments
19.3Application of this Part to certain kinds of proceeding
19.4Certain directions may be sought by originating application
19.5Court may permit proceeding to be commenced by originating application
19.5ADirections as to filing of statement of claim and defence
19.6Certain proceedings must be commenced by interlocutory application
19.7Commencement of proceeding
19.8Memorandum relating to filing and address for service
19.9Heading of documents
19.10Application of rules relating to interlocutory applications
19.11Directions as to parties and conduct of applications
19.12Originating applications relating to certain proceedings under Companies Act 1993
19.12ASpecial provisions for service of applications to remove caveats or set aside statutory demands
19.13Evidence
19.14Cross-examination of person making affidavit
20.1Application of this Part
20.2Interpretation
20.3Application for leave to appeal to court
20.4Time for appeal if there is right of appeal
20.5Commencement of periods in rules 20.3 and 20.4
20.6When appeal brought
20.7Power to dispense with service
20.8Filing notice of appeal
20.9Contents of notice of appeal
20.10Stay of proceedings
20.11Cross-appeal
20.12Dismissal or stay or abandonment of appeal or cross-appeal
20.13Security for appeal
20.14Order for transcript of evidence
20.15Report by decision-maker
20.16Further evidence
20.17Decision-maker entitled to be heard on appeal
20.18Appeal is rehearing
20.19Powers of court on appeal
20.20Repayment of judgment sum and interest
20.21Registrar to notify result of appeal
20.22Applications for leave
21.1Application
21.2Some rules in Part 20 apply
21.3Interpretation
21.4Method of commencing appeal or reference
21.5Time for appeal
21.6Notice of appeal
21.7Place for filing notice
21.8Lodging of draft case stated
21.9Contents of case
21.10Order for transcription of evidence
21.11When case deemed to be stated
21.12Power to amend case
21.13Security for costs
21.14Determination of questions
22.1Interpretation
22.2Appointment
22.3Nominating scientific adviser and settling questions and instructions
22.4Report
22.5Cross-examination
22.6Experiment or test
22.7Further or supplementary report
22.8Remuneration
22.9Application of subpart to application under section 89
22.10Notifying Commissioner
22.11Advertisement
22.12Right to be heard
22.13Time for making application
22.14Service of notice of interlocutory application
22.15Duty of court to give directions
22.16Procedure when amendment allowed
22.17Application by originating application
22.18Respondent begins proceeding
22.19Particulars if validity of patent disputed
22.20Particulars if want of novelty alleged
22.21Service of notice on Solicitor-General
22.22Particulars supplied by plaintiff
22.23Particulars supplied by defendant [Revoked]
22.24Evidence restricted to particulars delivered
22.25Amendment of particulars
22.26Application of Part 20
22.27Method and time of bringing appeal
22.28Contents of notice of appeal
22.29Grounds of appeal
22.30Service of notice of appeal
22.31Commissioner to transmit papers
22.32Contentions raised by respondent
22.33Respondent’s notice
22.34Appeal by way of rehearing
22.35Proceeding heard and determined in public
22.36Documentary evidence
22.37Cross-examination of witnesses
22.38Costs
23.1Scope and interpretation
23.2Application of other Parts
23.3Subpart subject to Orders in Council
23.4Method of application for registration
23.5Title and content of application
23.6Place of filing
23.7Supporting affidavits
23.8Copy judgment and translation
23.9Judicial notice of authentication of judgment
23.10Evidence of exchange rates and interest
23.11Evidence of right to registration
23.12Further evidence
23.13Registration of part of judgment
23.14Security for costs
23.15Order for registration
23.16Method of registration
23.17Date of registration
23.18Notice of registration
23.19Contents of notice of registration
23.20Application to set aside registration
23.21Determination of certain questions
23.22Enforcement of judgments
23.23Form of enforcement process
23.24Method of application
23.25Issue of certified copy
[Revoked]
23.26Interpretation [Revoked]
23.27Scope [Revoked]
23.28Application of other Parts [Revoked]
23.29Method of application [Revoked]
23.30Title of proceeding [Revoked]
23.31Place of filing [Revoked]
23.32Evidence of exchange rates and interest [Revoked]
23.33Method of registration [Revoked]
23.34Notice of registration [Revoked]
23.35Contents of notice of registration [Revoked]
23.36Service of copy of judgment, order, or injunction [Revoked]
23.37Copy of judgment, order, or injunction to be filed if facsimile produced [Revoked]
23.38Application to set aside registration or for stay of enforcement [Revoked]
24.1Interpretation
24.2Application of Part
24.3Application of general rules and practice of court
24.4Forms
24.5General requirements of documents filed in court
24.6Advertising of notices or proceedings
24.7Discretion of court as to method of taking evidence
24.8Issue of bankruptcy notice
24.9Service of bankruptcy notice in New Zealand
24.10Setting aside bankruptcy notice
24.11Application for adjudication by creditor
24.12Verification of creditor’s application
24.13Where application for adjudication to be filed
24.14Registrar to fix hearing date for creditor’s application
24.15Court may alter hearing date for creditor’s application
24.16Service of creditor’s application on debtor
24.17Service of creditor’s application on trustee or supervisor
24.18Debtor’s notice of intention to oppose adjudication
24.19Affidavit evidence of applicant creditor
24.20Applicant creditor’s solicitor’s certificate as to unpaid debt
24.21Death of debtor against whom application filed
24.22Applicant to deposit sum for Official Assignee’s expenses
24.23Official Assignee may seek additional sum where original deposit insufficient
24.24Notification of order appointing Official Assignee as receiver and manager
24.25Repayment of deposits after order of adjudication
24.26Dismissal of application after order appointing Official Assignee as manager and receiver
24.27Application for order under section 147
24.28Official Assignee’s report
24.29Official Assignee to notify employer, etc, about proposed assignment or charge
24.30Official Assignee to serve order of assignment, etc
24.31Application for order approving composition
24.32Notice to Official Assignee of application to approve composition
24.33Notice of application to approve composition
24.34Official Assignee to account when composition approved
24.35Applications by Official Assignee for cancellation of irregular transactions or retransfer of property or payment of value
24.36Filing and service of objection to discharge
24.37Service, etc, of notice of application for discharge
24.38Report of Official Assignee
24.39Opposition by creditor to discharge
24.40Conditions affecting salary, etc, after order of discharge
24.41Annulment of adjudication to be advertised
24.42Proposal and statement of affairs and affidavit
24.43Trustee’s report on proposal
24.44Application for order to administer under Part 6 of Act
24.45Application by creditor or beneficiary
24.46Duty of Registrar when order made
24.47Duty of administrator when order made
24.48Person who has intermeddled in estate may be ordered to give particulars
24.49Administration election
24.50Applications to vary or discharge order or decision of Registrar or District Court Judge
24.51Appeals to Court of Appeal
24.52Applications to court by Official Assignee
24.53Official Assignee’s liability for costs
24.54Filing decisions of District Court
24.55Interpretation
24.56Applications for recognition of foreign proceedings
24.57Other procedural requirements
24.58Relief after recognition
24.59Modification or termination
24.60Appointment of administrator under section 239L of Companies Act 1993
24.61Applications in course of administration
24.62Proper registry of court
25.1Interpretation
25.2Scope of this Part
25.3Application of other rules and practice of court
25.4Parties can apply for directions if procedure not prescribed
25.5Form of application
25.6Action in personam or in rem, or both, started by notice of proceeding
25.7Notice of proceeding for action in personam
25.8Notice of proceeding for action in rem
25.9Notice of proceeding for action both in rem and in personam
25.10How to serve notice of proceeding in action in rem on ship, cargo, or other property
25.11Other provisions about service in action in rem
25.12Defendant must enter appearance
25.13Content of memorandum
25.14Time limits for entering appearance
25.15Provisions about filing
25.16Service of memorandum
25.17Defendant may apply for orders
25.18Solicitor’s undertaking
25.19Substituted defendants, third parties, and interveners
25.20Statement of claim
25.21Statement of defence
25.22Meaning of preliminary act
25.23Preliminary acts to be filed in collision cases
25.24Proceedings against party in default where other party fails to lodge preliminary act
25.25Actions for limitation of liability
25.26Plaintiff must apply to court within 5 working days
25.27Protection against other parties
25.28Order limiting plaintiff’s liability
25.29Who may seek judgment by default in action in personam
25.30Default in filing and service of statement of claim
25.31Third parties
25.32Application for judgment by default in action in rem
25.33Judgment by default in action in rem
25.34Application for warrant of arrest of property
25.35Issue of warrant of arrest
25.36Service of warrant
25.37Currency of warrant
25.38Notice of arrest of property
25.39No Crown indemnity required
25.40Contempt to move ship under arrest
25.41Application for directions concerning property under arrest
25.42Request for caveat against arrest of property
25.43Entry of caveat
25.44Request for instrument of release
25.45Issue of release
25.46Caveat against release and payment
25.47Discharge of cargo under arrest from ships not under arrest and of cargo not under arrest
25.48Security
25.49Payment out of court
25.50Interveners
25.51Appraisement and sale of property
25.52Determination of priority of claims where court orders sale of ship
25.53Inspection of ship, etc
25.54Consent orders
25.55Registrar may seek court’s assistance
25.56Parties may seek review of Registrar’s decision
26.1Interpretation
26.2Application
26.3Originating application to commence appeal
26.4Affidavit to be filed in support
26.5Service
26.6Amending appeal grounds
26.7Notice of opposition to application
26.8Cross-appeal
26.9Record of arbitration
26.10Service and filing of record
26.11Transcript of evidence
26.12Service and filing of transcript
26.13Hearing of appeal
26.14Leave to appeal to Court of Appeal
26.15Applications for leave to appeal
26.16Submissions
26.17Granting leave
26.18Refusing leave
26.19Applying to Court of Appeal for leave to appeal
26.20Entry of judgment if all parties agree
26.21Entry of judgment in other cases
26.22Application for entry of award as judgment
26.23Affidavit to be filed in support
26.24Service
26.25Entry as judgment without notice in exceptional circumstances
26.26Entry as judgment if defendant takes no steps
26.27Opposition to entry as judgment
27.1Wills and intestacies to which this Part applies
27.2Interpretation
27.3Kinds of applications for grants
27.4Applications without notice
27.5Restrictions if possibly invalid will exists
27.6Applications in solemn form
27.7Respondents and additional parties
27.8Compromises
27.9Pleadings
27.10Where application is filed
27.11Where caveat is lodged
27.12Evidence of death
27.13Sale of perishable property
27.14Registrars may make some orders
27.15Application of rules 27.16 to 27.28
27.16Evidence as to execution
27.17Evidence of validity
27.18Doubt as to will-maker’s understanding
27.19Doubt as to originality of signature
27.20Doubt as to date
27.21Changes
27.22Revocations or revivals by other document
27.23Revocation
27.24Duplicate wills
27.25Circumstances in which grant may be made
27.26Priority of potential administrators for purposes of rule 27.25
27.27Proving entitlement to grant
27.28Grant while executor is minor
27.29Time for making grant
27.30Grants to attorneys
27.31Common or solemn form
27.32Inventory and account filed by administrator
27.33Administration of overseas assets
27.34Recall of grant
27.35Order of priority for grant in case of intestacy
27.36Justification of entitlement to grant
27.37Form of application for commission
27.38Affidavit in support
27.39Documents to be filed and verified
27.40Power to adopt previous accounts
27.41Power to refer matter to Registrar for inquiry
27.42Notice of inquiry by Registrar
27.43Evidence before Registrar
27.44Costs
27.45Power to dispense with rules
28.1Interpretation
28.2Commencement of New Zealand proceedings
28.3Registry of court in which proceedings to be commenced
28.4Issue of subpoenas for service in Australia
28.5Service of subpoena
28.6Subpoenas for production
28.7Setting aside subpoena issued in New Zealand proceeding
28.8Failure to comply with subpoena in New Zealand proceeding
28.9Payment of additional amounts to persons complying with subpoena in New Zealand proceeding
28.10Transmission of documents to Federal Court
28.11Certification of judgments, orders, and injunctions in New Zealand proceedings
28.12Evidence and submissions by video link and telephone conference
29.1Interpretation
29.2Application of this Part
29.3Entry on commercial list by endorsement
29.4Entry on commercial list by order
29.5Entry on commercial list of appeals against determinations of Commerce Commission
29.6Entry on commercial list of applications for directions by liquidators or receivers
29.7Documents to be served on and filed and served by defendant
29.8Heading of documents
29.9Interlocutory applications
29.10Application for directions
29.11Response to application for directions
29.12Hearing of application for directions
29.13Removal from list
29.14Proceedings in other registries
29.15Memorandum that decision will be final
29.16Additional powers of commercial list Judge
29.17Disputes concerning construction
29.18Form of documents
30.1Crown Proceedings Act 1950 not affected
30.2Interpretation
30.3Procedure
30.4Interim orders
31.1Application
31.2Hearing of applications
31.3Applications to be made by statement of claim
31.4Proper registry of court
31.5Notice of proceeding and verifying affidavit
31.6Date of hearing
31.7Exclusion of rules relating to setting down [Revoked]
31.8Directions [Revoked]
31.9Advertisement of application
31.10Restriction on advertising of proceeding
31.11Power to stay liquidation proceedings
31.12Service of proceeding
31.13Affidavit of service
31.14Evidence of advertising
31.15Entitlement to copy of statement of claim, etc
31.16Statement of defence
31.17Time for filing statement of defence
31.18Appearance
31.19Time for filing appearance
31.20Effect of failure to file statement of defence or appearance
31.21Evidence as to unpaid debts
31.22Interlocutory applications
31.23Power to appoint interim liquidator
31.24Additional and substituted plaintiffs in liquidation proceeding
31.25Consolidation of proceedings
31.26Discontinuance of proceeding
31.27Requirements in relation to order appointing interim liquidator
31.28Costs, charges, and expenses of interim liquidator and Official Assignee
31.29Obligation to send notice of order appointing liquidator or interim liquidator of company
31.30Order and copies to be sealed
31.31Contents of order putting company into liquidation
31.32Transmission of order putting company into liquidation
31.33Service of order made under section 174 of Companies Act 1993 [Revoked]
31.34Service of notice to officer executing process that company being put into liquidation
31.35Procedure in respect of miscellaneous applications
31.36Applications involving allegations of fraud, negligence, misfeasance, or similar behaviour
31.37Liquidator’s notice to set aside voidable transaction or voidable charge
31.38Proper registry of court
31.39Transitional provision for companies registered under the Companies Act 1955
32.1Interpretation
32.2Freezing order
32.3Ancillary order
32.4Respondent need not be party to proceeding
32.5Order against judgment debtor or prospective judgment debtor or third party
32.6Form and further terms of freezing order
32.7Duration of freezing order
32.8Discharge or variation of freezing order
32.9Jurisdiction
32.10Costs
33.1Interpretation
33.2Search order
33.3Requirements for grant of search order
33.4Restriction on entrants
33.5Applicant’s undertaking and duty
33.6Terms of search order
33.7Independent solicitors
33.8Review of search
33.9Costs
[Revoked]
Reprint notes

Rules

Part 1 Rules of general application

Subpart 1—Objective and interpretation

1.1 Title

These rules are the High Court Rules.

Compare: 1908 No 89 Schedule 2 r 1

High Court Rules 2016: replaced, on 1 February 2009, by section 8(1) of the Judicature (High Court Rules) Amendment Act 2008 (2008 No 90).

1.2 Objective

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

Compare: 1908 No 89 Schedule 2 r 4

1.3 Interpretation

(1)

In these rules, unless the context otherwise requires,—

Act means the Judicature Act 1908

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

appearance means a document that states a person’s address for service, and is either—

(a)

an appearance and objection to the jurisdiction of the court under rule 5.49; or

(b)

an appearance for ancillary purposes under rule 5.50; or

(c)

an appearance reserving rights under rule 5.51; or

(d)

an appearance authorised by any other rule

case management conference means a conference conducted under subpart 1 of Part 7

chattels includes all things that are not land

civil means not criminal

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

control, in relation to a document, means—

(a)

possession of the document; or

(b)

a right to possess the document; or

(c)

a right, otherwise than under these rules, to inspect or copy the document

court means the High Court; and includes—

(a)

a Judge of the High Court; and

(b)

an Associate Judge of the High Court exercising the jurisdiction conferred on an Associate Judge by the Act or by rules made under section 26J of the Act

court holiday means a day that is a holiday under rule 3.2

the Crown has the same meaning as in section 2(1) 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 rule 4.12)

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 such 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

electronic includes electrical, digital, magnetic, optical, electromagnetic, biometric, and photonic, and electronically has a corresponding meaning

expert means a person who has specialised knowledge or skill based on training, study, or experience

expert evidence means the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion

to file, in relation to any 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 of the court, together with the fee (if any) payable for filing it

hearing date, in relation to an interlocutory application or a proceeding, means the date on which, and the time at which, the application or the proceeding is to be heard

hearing in chambers means a hearing that takes place in circumstances in which the general public is not admitted, except with the leave of the Judge, and includes any conference held under these rules

interlocutory application means an application made in accordance with rule 7.19 or 7.41

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

Judge means a Judge of the High Court; and includes an Associate Judge of the High Court exercising the jurisdiction conferred on an Associate Judge by the Act or by rules made under section 26J of the Act

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

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

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

notice of proceeding means a notice filed under rule 5.22

opinion, in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact

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

party means any person who is a plaintiff or a defendant or a person added to a proceeding

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, and a counterclaim

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

property includes real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest

Registrar includes a Deputy Registrar

respondent, in relation to an interlocutory application, means a party on whom the application has been served

these rules means the High Court Rules 2016

trial includes a hearing before a Judge alone

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 in a rule or form in these rules 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 1 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: 1908 No 89 Schedule 2 r 3

Rule 1.3(1) address for service: amended, on 11 October 2013, by rule 4 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Rule 1.3(1) case management conference: amended, on 4 February 2013, by rule 4 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

Rule 1.3(1) these rules: amended, on 18 October 2016, by section 183(c) of the Senior Courts Act 2016 (2016 No 48).

Rule 1.3(1) working day paragraph (b): amended, on 1 July 2015, by rule 4(1) of the High Court Amendment Rules 2015 (LI 2015/102).

Rule 1.3(1) working day paragraph (c): inserted, on 1 July 2015, by rule 4(2) of the High Court Amendment Rules 2015 (LI 2015/102).

Subpart 2—Application and compliance

1.4 Application

(1)

The practice and procedure of the court in all civil proceedings and interlocutory applications is regulated by these rules.

(2)

Despite subclause (1), these rules do not apply to—

(a)

appeals to the Court of Appeal; or

(b)

appeals to the Supreme Court.

(3)

These rules are subject to—

(c)

any statute prescribing the practice and procedure of the court in a proceeding or an appeal or application for leave to appeal under that statute:

(d)

rules made under section 51C of the Act prescribing the procedure applicable in respect of any class of civil proceedings.

(4)

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

Compare: 1908 No 89 Schedule 2 r 2

1.5 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: 1908 No 89 Schedule 2 r 5

1.6 Cases not provided for

(1)

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

(2)

If there are no such rules, it must be disposed of in the manner that the court thinks is best calculated to promote the objective of these rules (see rule 1.2).

Compare: 1908 No 89 Schedule 2 r 9

1.7 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.

1.8 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: 1908 No 89 Schedule 2 r 10

1.9 Amendment of defects and errors

(1)

The court 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 proceedings, any amendments to any pleading or the procedure in the proceeding that are necessary for determining the real controversy between the parties.

(3)

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

(4)

This rule is subject to rule 7.7 (which prohibits steps after the close of pleadings date without leave).

Compare: 1908 No 89 Schedule 2 r 11

Rule 1.9(4): replaced, on 4 February 2013, by rule 5 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

1.10 Security

(1)

An officer who is empowered to take security from a person for any purpose may determine the appropriate number of sureties and the form and the amount of the security.

(2)

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

(3)

If a surety becomes bankrupt or insolvent, or makes a composition with that surety’s creditors, the court may stay all further steps in the proceeding by the principal party to the security until another surety has been found.

Compare: 1908 No 89 Schedule 2 rr 16, 17

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

1.11 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 or at the hearing of an interlocutory application.

(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 case management conferences and hearings; or

(b)

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

(c)

a specified case management conference or hearing.

(4)

The notice must be in form G 12.

(5)

The notice must be filed and served,—

(a)

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

(b)

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

(c)

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

Compare: 1908 No 89 Schedule 2 r 65A

Rule 1.11(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).

1.12 Translation of documents into te reo Māori

(1)

A person upon whom a document is served in any proceeding 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 to be 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 as costs in the proceeding.

(7)

Unless the court otherwise orders,—

(a)

the document is deemed not to have 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 that person in the proceeding and every execution process or other process issued against that person to enforce any judgment entered or order made in the proceeding must, unless that person is at the time represented by a solicitor, be accompanied by a translation into the Māori language complying with this rule.

Compare: 1908 No 89 Schedule 2 rr 62–64

Rule 1.12(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).

1.13 Failure to give notice

A failure to comply with rule 1.11 does not prevent a person speaking Māori at a case management conference or pre-trial 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 case management conference or hearing:

(b)

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

Compare: 1908 No 89 Schedule 2 r 65B

Rule 1.13(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).

1.14 Translation may be ordered by court

(1)

The court may at any time order that a translation into the Māori language, complying with rule 1.12(2) to (7), of any document served, before or after the making of the order, upon a Māori concerned in a proceeding be served on that Māori, whether or not he or she has applied for it under rule 1.12(1).

(2)

An order may be made subject to such terms and conditions as the court thinks just.

(3)

The court may, on ordering a translation under this rule, grant an adjournment of the proceeding if justice so requires.

Compare: 1908 No 89 Schedule 2 r 65

1.15 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: 1908 No 89 Schedule 2 r 512

1.16 Sign language

(1)

Any person permitted by the New Zealand Sign Language Act 2006 to use New Zealand Sign Language in a proceeding or at the hearing of any interlocutory application or at a case management or pre-trial conference 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, on application by or on behalf of a party, make any order thought just 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 cost of any interpretation ordered and its incidence; 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, however—

(a)

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

(b)

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

Subpart 4—Time

1.17 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 1.18.

(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 1.18 and 1.19 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: 1908 No 89 Schedule 2 r 13

Rule 1.17(3): amended, on 1 January 2011, by rule 17 of the High Court Amendment Rules (No 2) 2010 (SR 2010/394).

1.18 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: 1908 No 89 Schedule 2 r 15

1.19 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.

Compare: 1908 No 89 Schedule 2 r 6

Subpart 5—Lawyers’ obligations

1.20 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: 1908 No 89 Schedule 2 r 41A

Subpart 6—Forms

1.21 Variation of forms

(1)

Variations may be made to any form directed or authorised by these rules to be used, as the circumstances of a particular case require.

(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: 1908 No 89 Schedule 2 r 7

Subpart 7—International co-operation

1.22 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.

Part 2 Jurisdiction and powers of Associate Judges and Registrars

Subpart 1—Associate Judges

2.1 Jurisdiction and powers

(1)

An Associate Judge has the jurisdiction and powers of a Judge in chambers conferred by the Act or these rules or another enactment.

(2)

The jurisdiction and powers referred to in subclause (1) are in addition to the jurisdiction and powers conferred by section 26I of the Act.

(3)

Despite subclause (1), an Associate Judge does not have jurisdiction or powers in respect of the matters specified in—

(a)

section 26J(3) and (4) of the Act; or

(b)

section 26P(1) of the Act.

Compare: 1908 No 89 Schedule 2 r 61A

2.2 Interim order on transfer of proceeding

An Associate Judge who refers a proceeding or a matter arising in a proceeding to a Judge under section 26N(1) of the Act may, before the final disposal of the proceeding or matter, make any interim order he or she considers just.

Compare: 1908 No 89 Schedule 2 r 61B

2.3 Review of decision

(1)

An application for a review, under section 26P(1) of the Act, of an order or a decision made by an Associate Judge must be by interlocutory application, which must fully state the grounds of review and what exactly is challenged by the applicant.

(2)

Unless a Judge or an Associate Judge directs otherwise, notice of the application must be filed and served,—

(a)

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

(b)

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

(3)

Unless a Judge or an Associate Judge directs otherwise, the application does not operate as—

(a)

a stay of the proceeding; or

(b)

a step in the proceeding.

(4)

If the order or decision being reviewed was made following a defended hearing and is supported by documented reasons,—

(a)

the review proceeds as a rehearing; and

(b)

the Judge may, if he or she thinks it is in the interests of justice, rehear the whole or part of the evidence or receive further evidence.

(5)

In all other cases,—

(a)

a review proceeds as a full rehearing; and

(b)

the Judge may give the order or decision the weight he or she thinks appropriate.

Compare: 1908 No 89 Schedule 2 r 61C

2.4 Appeal to Court of Appeal

The Court of Appeal (Civil) Rules 2005 apply, with all necessary modifications, to an appeal under section 26P(2) of the Act brought against an order or a decision of an Associate Judge.

Compare: 1908 No 89 Schedule 2 r 61D

Subpart 2—Registrars

2.5 Registrars’ jurisdiction and powers relating to interlocutory applications

A Registrar (not including a Deputy 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 or notice of interlocutory application:

(b)

hear and determine an application under rule 6.28 (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 on an application made to vary or rescind an order or a decision of a Registrar:

(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: 1908 No 89 Schedule 2 r 270

2.6 Additional jurisdiction for certain Registrars

The Registrar (not including a Deputy Registrar) at the Auckland, Hamilton, Rotorua, Palmerston North, Wellington, Christchurch, or Dunedin registry has the jurisdiction and powers given to a Judge by the following:

(a)

rule 1.19, so far as it applies to—

(ii)
(iii)
(iv)
(d)

subpart 2 of Part 17:

Compare: 1908 No 89 Schedule 2 r 271

Rule 2.6(a)(ii): replaced, on 4 February 2013, by rule 6 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

2.7 Limits on jurisdiction

(1)

A Registrar must exercise jurisdiction under rules 2.5 and 2.6

(a)

in chambers; and

(b)

subject to any judicial direction.

(2)

However, a Registrar may exercise his or her jurisdiction under those rules 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 2.11.

Compare: 1908 No 89 Schedule 2 r 272

2.8 Powers ancillary to jurisdiction

A Registrar may exercise powers ancillary to jurisdiction under rules 2.5 and 2.6 if a Judge may exercise those ancillary powers in the same circumstances.

Compare: 1908 No 89 Schedule 2 r 273

2.9 Jurisdiction in other registries

A Registrar may exercise jurisdiction under rules 2.5 and 2.6 in respect of an application filed in a registry of the court other than the one at which he or she is Registrar.

Compare: 1908 No 89 Schedule 2 r 274

2.10 Form of order

An order made by a Registrar under rule 2.5 or 2.6 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: 1908 No 89 Schedule 2 r 275

2.11 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)

It is not necessary to apply for an order for an extraordinary remedy under Part 30 or to make an application for review under Part 1 of the Judicature Amendment Act 1972 when seeking a review under subclause (1)(b) or (c).

(4)

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.

(5)

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 2.5, so directs.

Compare: 1908 No 89 Schedule 2 r 276

Part 3 Court administration

Subpart 1—Registry hours and court holidays

3.1 Registry hours

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

Compare: 1908 No 89 Schedule 2 r 22

3.2 Court holidays

(1)

The following are court holidays for the court and the court’s registries:

(a)

the period beginning on Good Friday and ending on the close of the Tuesday after Easter:

(b)

the period beginning on 24 December and ending on the close of 3 January:

(c)

Saturdays and Sundays:

(d)

the Sovereign’s birthday:

(e)

Anzac Day:

(f)

Labour Day:

(g)

Waitangi Day:

(ga)

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

(h)

the anniversary day of the region in which the court is situated:

(i)

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

(i)

a public holiday; or

(ii)

a proclaimed holiday; or

(iii)

a day observed by the Government as a holiday:

(j)

any days on which the court and its registries are closed under an order made under rule 3.4.

(2)

The Holidays Act 2003 overrides subclause (1).

Compare: 1908 No 89 Schedule 2 rr 18, 19

Rule 3.2(1)(ga): inserted, on 18 October 2016, by section 183(c) of the Senior Courts Act 2016 (2016 No 48).

3.3 Sitting 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; and

(b)

despite section 54 of the Act, authorise the service of any document received or issued under paragraph (a).

Compare: 1908 No 89 Schedule 2 r 21

3.3A Vacations

(1)

There is to be a long vacation beginning on 20 December and ending with the close of 31 January.

(2)

There is to be an Easter vacation beginning on the day before Good Friday and ending with the close of the Saturday following Easter.

Rule 3.3A: inserted, on 1 December 2009, by rule 4 of the High Court Amendment Rules (No 2) 2009 (SR 2009/334).

3.4 Epidemics and emergencies

(1)

Despite rule 3.1, 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: 1908 No 89 Schedule 2 r 20

Subpart 2—Access to court documents

Part 3 subpart 2: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.5 Interpretation

In this subpart, 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:

(e)

the rolls of barristers and solicitors kept under section 56 of the Lawyers and Conveyancers Act 2006 or any former corresponding enactment.

Rule 3.5: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.6 Application

(1)

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

(2)

These rules do not require any person to prepare a document that is not in existence at the time the document is sought.

Rule 3.6: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.7 General right of access to formal court record and certain applications under Administration Act 1969

(1)

Subject to rule 3.12, every person has the right to access the formal court record kept in a registry of the court.

(2)

Subject to rule 3.12, every person has the right to access any document or court file that relates to an application or action for a grant of administration under the Administration Act 1969 or to a proceeding for the recall of any such grant.

(3)

Despite subclause (1) or (2), a Judge may direct that judgments or orders, or documents or files of the kind described in subclause (2), not be accessed without the permission of the court.

Rule 3.7: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.8 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.

Rule 3.8: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.9 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 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 3.10), 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 in rule 3.12, 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 3.10); 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 stated in subclause (3) or in rule 3.12 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.

Rule 3.9: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.10 Meaning of relevant deadline in rule 3.9

(1)

For the purpose of rule 3.9, 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 day 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 day on which the copy is received.

(2)

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

(a)

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

(b)

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

(3)

This rule overrides rule 6.6.

Rule 3.10: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.11 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 3.7 to 3.9, 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 3.13.

Rule 3.11: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.12 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, or any 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, or any judgment or order relating to an application under rule 9.60 or 28.4 (which relate to the service of New Zealand subpoenas in Australia) only with the leave of a Judge.

Rule 3.12: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.13 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 3.9.

(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.

Rule 3.13: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.14 Decisions on applications under rule 3.13

(1)

The Judge or Registrar may refuse an application made under rule 3.13 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.

Rule 3.14: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.15 Review of decisions by Registrar

(1)

Any decision by a Registrar under rule 3.14 is subject to review by a Judge on the application of the applicant or any person affected.

(2)

Rule 2.11 applies to subclause (1) as if the reference in that rule to a party were a reference to the applicant or any person affected.

Rule 3.15: inserted, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.16 Matters to be taken into account

In determining an application under rule 3.13, or a request for permission under rule 3.9, 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 3.12:

(f)

any other matter that the Judge or Registrar thinks just.

Rule 3.16: inserted, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

Subpart 3—Investment of funds in court

Part 3 subpart 3: replaced, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.17 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: 1908 No 89 Schedule 2 r 69

Rule 3.17: inserted, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.18 Powers of court in relation to application

(1)

The court may, when making an order for investment of money under rule 3.17,—

(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: 1908 No 89 Schedule 2 r 70

Rule 3.18: inserted, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

3.19 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 3.17 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 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 3.17; or

(b)

at a later time.

(3)

Unless the court directs otherwise, the income received from an investment under an order under rule 3.17 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: 1908 No 89 Schedule 2 r 71

Rule 3.19: inserted, on 12 June 2009, by rule 4 of the High Court (Access to Court Documents) Amendment Rules 2009 (SR 2009/133).

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: 1908 No 89 Schedule 2 r 76

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: 1908 No 89 Schedule 2 r 73

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: 1908 No 89 Schedule 2 r 74

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—

(a)

an application for judgment is pending under rule 12.2 or 12.3; or

(b)

a proceeding is entered on a commercial list established under section 24A of the Act at a registry of the court.

Compare: 1908 No 89 Schedule 2 r 75(1), (5)

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: 1908 No 89 Schedule 2 r 75(2)

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)

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

Compare: 1908 No 89 Schedule 2 rr 75(2), 162

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: 1908 No 89 Schedule 2 r 75(3)

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: 1908 No 89 Schedule 2 r 75(4)

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: 1908 No 89 Schedule 2 r 162

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 G 14.

Compare: 1908 No 89 Schedule 2 r 154

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 5.27 to 5.35; 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.

Compare: 1908 No 89 Schedule 2 r 155

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: 1908 No 89 Schedule 2 r 156

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: 1908 No 89 Schedule 2 r 157

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.

(1A)

Subclause (1) is subject to rule 6.35 (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).

(2)

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

Compare: 1908 No 89 Schedule 2 r 158

Rule 4.14(1A): inserted, on 11 October 2013, by rule 5 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

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: 1908 No 89 Schedule 2 r 159

4.16 Setting aside third party notice

(1)

A third party may apply to the court to 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: 1908 No 89 Schedule 2 r 160

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, indemnity, relief, or 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: 1908 No 89 Schedule 2 r 161

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: 1908 No 89 Schedule 2 r 163

Rule 4.18: amended, on 4 February 2013, by rule 7 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

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.

Compare: 1908 No 89 Schedule 2 r 164

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 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: 1908 No 89 Schedule 2 r 165

4.21 Form of notice

(1)

A notice filed and served under rule 4.18 must be in form G 15.

(2)

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

Compare: 1908 No 89 Schedule 2 r 166

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 in the absence of that rule.

Compare: 1908 No 89 Schedule 2 r 167

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: 1908 No 89 Schedule 2 r 77

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: 1908 No 89 Schedule 2 r 78

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: 1908 No 89 Schedule 2 r 79

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: 1908 No 89 Schedule 2 r 80

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: 1908 No 89 Schedule 2 r 81

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: 1908 No 89 Schedule 2 r 95

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: 1908 No 89 Schedule 2 rr 82, 83

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: 1908 No 89 Schedule 2 r 84

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: 1908 No 89 Schedule 2 r 85

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: 1908 No 89 Schedule 2 r 86

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: 1908 No 89 Schedule 2 r 86A

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: 1908 No 89 Schedule 2 r 86B

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: 1908 No 89 Schedule 2 r 86C

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: 1908 No 89 Schedule 2 r 86D

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: 1908 No 89 Schedule 2 r 86E

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: 1908 No 89 Schedule 2 r 87

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: 1908 No 89 Schedule 2 r 88

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: 1908 No 89 Schedule 2 r 89

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: 1908 No 89 Schedule 2 r 90

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: 1908 No 89 Schedule 2 r 91

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: 1908 No 89 Schedule 2 r 92

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: 1908 No 89 Schedule 2 r 92

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

Unless the court otherwise orders, a 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 on behalf of the incapacitated person.

Compare: 1908 No 89 Schedule 2 r 93

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: 1908 No 89 Schedule 2 r 94

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: 1908 No 89 Schedule 2 r 94A

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: 1908 No 89 Schedule 2 r 94B

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: 1908 No 89 Schedule 2 r 98

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: 1908 No 89 Schedule 2 r 99

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: 1908 No 89 Schedule 2 r 100

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—

(a)

that 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: 1908 No 89 Schedule 2 rr 101, 102

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: 1908 No 89 Schedule 2 rr 103, 104

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: 1908 No 89 Schedule 2 r 105

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: 1908 No 89 Schedule 2 r 96

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: 1908 No 89 Schedule 2 r 97

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 or an officer entitled under rule 4.58 to apply to the court for relief under rule 4.63

claimant means a person claiming against an applicant in terms of rule 4.58

execution creditor means a person who has issued an enforcement process under Part 17

execution debtor means a person against whose property an enforcement process has been issued under Part 17.

Compare: 1908 No 89 Schedule 2 r 172

4.58 Right to interplead

(1)

When a person (A) who is under a liability in respect of a debt or in respect of any money or chattels is, or expects to be, sued for or in respect of the debt, money, or chattels by 2 or more persons making adverse claims, A may apply to the court, on notice to the persons making the adverse claims, for relief under rule 4.63.

(2)

If a person (B) who is not a person against whom a sale order (described in rule 17.62) or a possession order (described in rule 17.80) is issued claims money or chattels taken or intended to be taken by an officer giving effect to either of those orders, 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 for relief under rule 4.63.

(3)

Subclause (2) applies—

(a)

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

(b)

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

Compare: 1908 No 89 Schedule 2 r 173

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: 1908 No 89 Schedule 2 r 174

4.60 Affidavit in support

(1)

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

(a)

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

(b)

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

(c)

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

(d)

that 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: 1908 No 89 Schedule 2 r 175

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: 1908 No 89 Schedule 2 r 176

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 subclause (1) or (2) of rule 4.58, 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 5.49 to 5.51, 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: 1908 No 89 Schedule 2 r 177

4.63 Powers of court

(1)

Upon 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: 1908 No 89 Schedule 2 r 178

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: 1908 No 89 Schedule 2 r 179

Part 5 Commencement of proceedings and filing of documents

Subpart 1—Proper registry of court

5.1 Identification of proper registry

(1)

The proper registry of the court, for the purposes of rules 5.25 and 19.7, is,—

(a)

when a sole defendant is resident or has a principal place of business in New Zealand, the registry of the court nearest to the residence or principal place of business of the defendant, but when there are 2 or more defendants, the proper registry is determined by reference to the first-named defendant who is resident or has a principal place of business in New Zealand:

(b)

when no defendant is resident or has a principal place of business in New Zealand, the registry the plaintiff selects:

(c)

when the Crown is a defendant, the registry nearest to the place where the cause of action or a material part of it arose:

(d)

despite paragraphs (a) to (c), the court at Wellington in the case of proceedings that consist of or include 1 or more of the following kinds of action or application:

(i)

an application for judicial review under Part 1 of the Judicature Amendment Act 1972 that arises out of, or relates to, the making of a designation under the Terrorism Suppression Act 2002:

(ii)

an application for, or in the nature of, an extraordinary remedy under Part 30 of these rules that arises out of, or relates to, the making of a designation under the Terrorism Suppression Act 2002:

(iii)

an application under section 35, 47E, or 55 of the Terrorism Suppression Act 2002:

(e)

despite paragraphs (a) to (c), the court at Wellington or the court at Auckland in the case of applications under the Immigration Act 2009 in proceedings involving classified information.

(2)

Despite subclause (1)(a), if the place where the cause of action sued on, or some material part of it, arose is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides, the proper registry of the court for the purposes of subclause (1) is, at the option of the plaintiff or the plaintiff first-named, as the case may be, the registry nearest to the residence of the plaintiff or the plaintiff first-named, as the case may be.

(3)

If a plaintiff proposes to exercise the option conferred by subclause (2), the plaintiff must file with the statement of claim and notice of proceeding an affidavit by the plaintiff or the plaintiff’s solicitor stating the place where the cause of action or the material part of it arose, and that that place is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides.

(4)

If it appears to a Judge, on application made, that the statement of claim has been filed in the wrong registry of the court, he or she may direct that the statement of claim or all documents filed in the proceeding be transferred to the proper registry.

(5)

If it appears to a Judge, on application made, that a different registry of the court 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: 1908 No 89 Schedule 2 r 107

Rule 5.1(1)(e): inserted, on 2 December 2010, by rule 21 of the High Court Amendment Rules (No 2) 2010 (SR 2010/394).

Subpart 2—Formal requirements for documents

5.2 Non-complying documents

(1)

A document that does not comply with rules 5.3 to 5.16 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.

Compare: 1908 No 89 Schedule 2 r 23

5.3 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: 1908 No 89 Schedule 2 r 24

5.4 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: 1908 No 89 Schedule 2 r 25

5.5 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: 1908 No 89 Schedule 2 r 26

5.6 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: 1908 No 89 Schedule 2 r 27

5.7 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 5.8 and 5.11.

(2)

The cover sheet must not be numbered, even if the heading is continued on another sheet under rule 5.10(2).

(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: 1908 No 89 Schedule 2 r 30

5.8 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: 1908 No 89 Schedule 2 r 31

5.9 Heading generally

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

Compare: 1908 No 89 Schedule 2 r 35

5.10 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 or Associate Judge to whom the proceeding has been assigned; and

(v)

the information required by rule 5.16; 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: 1908 No 89 Schedule 2 r 33

Subpart 3—Heading of court documents

5.11 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 a will, the name of the testator:

(e)

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:

(f)

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:

(g)

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 G 1 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: 1908 No 89 Schedule 2 r 36

5.12 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: 1908 No 89 Schedule 2 r 36A

5.13 Heading on other documents

(1)

The heading of a document to which neither rule 5.11 nor 5.12 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: 1908 No 89 Schedule 2 r 37

5.14 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: 1908 No 89 Schedule 2 r 38

5.15 Numbers

Numbers must be expressed in figures and not in words.

Compare: 1908 No 89 Schedule 2 r 39

5.16 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: 1908 No 89 Schedule 2 r 40

Rule 5.16 heading: amended, on 1 January 2011, by rule 4(1) of the High Court Amendment Rules (No 2) 2010 (SR 2010/394).

Rule 5.16(1): amended, on 1 January 2011, by rule 4(2) of the High Court Amendment Rules (No 2) 2010 (SR 2010/394).

Subpart 4—Pleadings generally

5.17 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: 1908 No 89 Schedule 2 r 181

5.18 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: 1908 No 89 Schedule 2 r 182

5.19 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: 1908 No 89 Schedule 2 r 183

5.20 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: 1908 No 89 Schedule 2 r 184

5.21 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: 1908 No 89 Schedule 2 r 185

Subpart 5—Notice of proceeding

5.22 Notice of proceeding to be filed with statement of claim

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

Compare: 1908 No 89 Schedule 2 r 120

5.23 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 G 2 and must advise the defendant of the defendant’s obligations under rule 8.4 (initial disclosure).

(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)

A memorandum signed by the Registrar in form G 3, G 4, or G 5 (whichever is appropriate) must be attached to the notice of proceeding.

Compare: 1908 No 89 Schedule 2 r 121

Rule 5.23(2): replaced, on 4 February 2013, by rule 8 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

5.24 When not necessary to file notice of proceeding

Despite rule 5.22, 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: 1908 No 89 Schedule 2 r 124

Subpart 6—Statement of claim

5.25 Proceeding commenced by filing statement of claim

(1)

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

(2)

Subclause (1) does not apply to—

(a)

an unopposed application under Part 27:

(b)

an appeal under Part 20:

(c)

a proceeding commenced by originating application under Part 18, 19, or 26:

(d)

an application under Part 31:

(e)

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.

Compare: 1908 No 89 Schedule 2 r 106

Rule 5.25(2)(e): inserted, on 11 October 2013, by rule 6 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

5.26 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: 1908 No 89 Schedule 2 r 108

5.27 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: 1908 No 89 Schedule 2 rr 109, 114

5.28 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: 1908 No 89 Schedule 2 r 110

5.29 Joint plaintiffs

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

Compare: 1908 No 89 Schedule 2 r 111

5.30 Joining claims by or against spouses or partners

Claims by or against spouses, civil union partners, or de facto partners may be joined with claims by or against either of those spouses, civil union partners, or de facto partners if the opposite party is the same person.

Compare: 1908 No 89 Schedule 2 r 112

5.31 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: 1908 No 89 Schedule 2 r 115

5.32 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: 1908 No 89 Schedule 2 r 116

5.33 Special damages

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

Compare: 1908 No 89 Schedule 2 r 117

5.34 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: 1908 No 89 Schedule 2 r 118

5.35 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: 1908 No 89 Schedule 2 r 119

Subpart 7—Authority of solicitors to act

5.36 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 5.36A (documents in certain trans-Tasman proceedings):

(b)

rule 9.62(1)(b) (application to set aside New Zealand subpoena served on witness in Australia).

Compare: 1908 No 89 Schedule 2 r 41

Rule 5.36(2): inserted, on 11 October 2013, by rule 7 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Rule 5.36(3): inserted, on 11 October 2013, by rule 7 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

5.36A 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 practise 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 5.38 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 that Act or, as the case requires, without being entitled to do so under section 23(4) of that Act.

Rule 5.36A: inserted, on 11 October 2013, by rule 8 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

5.37 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: 1908 No 89 Schedule 2 r 41B

5.38 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 5.44.

(2)

This rule is subject to rules 5.36A(4) and 5.42.

Compare: 1908 No 89 Schedule 2 r 42

Rule 5.38(2): amended, on 11 October 2013, by rule 9 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

5.39 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: 1908 No 89 Schedule 2 r 43

5.40 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 paragraphs (b) to (e) of rule 5.44(1); 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.

(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) and attaching and verifying a copy of the notice served.

(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 G 11 may be used.

Compare: 1908 No 89 Schedule 2 r 45

Rule 5.40(5)(a): amended, on 11 November 2013, by rule 4 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

5.41 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 5.40; 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 5.42 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: 1908 No 89 Schedule 2 r 45A

5.42 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 5.41 and has complied with rule 5.41(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 either—

(a)

appoints another solicitor and complies with rule 5.40; or

(b)

if entitled 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 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 5.41 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: 1908 No 89 Schedule 2 r 45B

Rule 5.42(2)(b)(i): amended, on 11 November 2013, by rule 5 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

5.43 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: 1908 No 89 Schedule 2 r 43A

Subpart 8—Memorandum on first document

5.44 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 in the course of the proceeding.

(2)

The memorandum may be in one of the paragraphs of form G 10.

Compare: 1908 No 89 Schedule 2 r 44

Rule 5.44(1)(e): replaced, on 11 November 2013, by rule 6 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

Subpart 9—Security for costs

5.45 Order for security of costs

(1)

Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)

that a plaintiff—

(i)

is resident out of New Zealand; or

(ii)

is a corporation incorporated outside New Zealand; or

(iii)

is a subsidiary (within the meaning of section 5 of the Companies Act 1993) 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)

A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3)

An order under subclause (2)—

(a)

requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—

(i)

by paying that sum into court; or

(ii)

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

(b)

may stay the proceeding until the sum is paid or the security given.

(4)

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

(5)

A Judge 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 and 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: 1908 No 89 Schedule 2 r 60

5.46 Solicitor not to be surety

A party’s solicitor may not be accepted as surety for a security that the party is required to give under rule 5.45(2).

Compare: 1908 No 89 Schedule 2 r 61

Subpart 10—Statement of defence and appearance

5.47 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 6.35 (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).

Compare: 1908 No 89 Schedule 2 rr 122, 129

Rule 5.47(3): inserted, on 11 October 2013, by rule 10 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

5.48 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: 1908 No 89 Schedule 2 r 130

5.49 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 rule 6.27 or 6.28, it must be determined under rule 6.29.

(7A)

But both this rule and rule 6.29 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.

(8)

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.

(9)

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 (8), give any other directions that appear necessary regarding any further steps in the proceeding.

Compare: 1908 No 89 Schedule 2 r 131

Rule 5.49(7A): inserted, on 11 October 2013, by rule 11 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Rule 5.49(8): amended, on 11 November 2013, by rule 7 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

5.50 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: 1908 No 89 Schedule 2 r 132

5.51 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—

(a)

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

(b)

in the event that 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: 1908 No 89 Schedule 2 r 133

5.52 Forms

Form G 7, G 8, or G 9 (whichever is appropriate) may be used for the purpose of entering an appearance under rules 5.49 to 5.51.

Compare: 1908 No 89 Schedule 2 r 134

Subpart 11—Counterclaims

5.53 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 5.54.

Compare: 1908 No 89 Schedule 2 r 145

5.54 Heading of counterclaim

A counterclaim must be headed with the word “Counterclaim” but in all other respects it must conform with rule 5.11 and the rules applying to statements of claim.

Compare: 1908 No 89 Schedule 2 r 147

5.55 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: 1908 No 89 Schedule 2 r 148

5.56 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: 1908 No 89 Schedule 2 r 149

5.57 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 5.61.

(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 G 2 must be served with each copy of a counterclaim served under subclause (1).

(5)

Rules 5.53 to 5.56 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: 1908 No 89 Schedule 2 r 150

5.58 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: 1908 No 89 Schedule 2 r 151

5.59 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: 1908 No 89 Schedule 2 r 152

5.60 Counterclaim by counterclaim defendant

(1)

Rules 5.56 to 5.59 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: 1908 No 89 Schedule 2 r 153

5.61 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: 1908 No 89 Schedule 2 r 146

Subpart 12—Reply

5.62 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 the party serving the statement of defence.

Compare: 1908 No 89 Schedule 2 r 169

5.63 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: 1908 No 89 Schedule 2 rr 170, 171

Subpart 13—Proceedings and actions transferred from District Court

5.64 Application of rules

(1)

This subpart applies to every action, counterclaim, and other proceeding transferred to the court from a District Court under an order made under section 43, 44, or 45 of the District Courts Act 1947.

(2)

However, this subpart does not apply to a proceeding removed to the court by an order made under section 43(6) of the District Courts Act 1947.

Compare: 1908 No 89 Schedule 2 r 228

5.65 Documents to be filed in proper registry

If the registry of the court at which the documents are received from the District Court is not the registry in which, had the action, counterclaim, or other proceeding been commenced in the High Court, the statement of claim would have been filed in accordance with rule 5.25, the Registrar receiving the documents must immediately transmit them to the Registrar at that registry for filing there.

Compare: 1908 No 89 Schedule 2 r 229

5.66 On filing treated as proceeding

(1)

Documents filed under rule 5.65 must be treated as documents in a proceeding commenced under these rules.

(2)

Subject to subclause (3) and rules 5.67 and 5.68, these rules apply with all necessary modifications.

(3)

Any party who has not given an address for service complying with these rules must immediately do so.

Compare: 1908 No 89 Schedule 2 r 230

5.67 Title of documents

All documents filed in the proceeding after it has been filed in the court in accordance with rule 5.65 must be headed as if the proceeding had been commenced in the High Court.

Compare: 1908 No 89 Schedule 2 r 231

5.68 Time for filing statement of defence

If no statement of defence has been filed in the District Court, a statement of defence may be filed within 25 working days from the date when the proceeding is filed in accordance with rule 5.65.

Compare: 1908 No 89 Schedule 2 r 232

5.69 Transfer under section 45 of District Courts Act 1947

(1)

An application under section 45 of the District Courts Act 1947 must be by interlocutory application.

(2)

It must,—

(a)

if made by the counterclaimant, be made within 5 working days after the counterclaim or set-off and counterclaim is filed in the District Court:

(b)

if made by the party against whom the counterclaim or set-off and counterclaim is made, be made within 5 working days after service on that party.

(3)

At any time after an application under subclause (1) has been filed, the court may order the proceedings in the District Court to be stayed pending its disposal.

(4)

The order in subclause (3) may be made without notice and subject to any conditions or undertakings that the court thinks just.

(5)

If the court orders that the counterclaim or set-off and counterclaim alone be transferred, references in rules 5.64 to 5.68 and in other provisions of these rules to the plaintiff must be read as references to the counterclaimant and references to the defendant must be read as references to the party against whom the counterclaim or set-off and counterclaim is made.

Compare: 1908 No 89 Schedule 2 r 233

Subpart 14—Service of statement of claim and notice of proceeding

5.70 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.

Compare: 1908 No 89 Schedule 2 r 125

5.71 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 5.73(2) overrides subclause (1).

Compare: 1908 No 89 Schedule 2 r 126

5.72 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: 1908 No 89 Schedule 2 r 127

5.73 Extension of time for service

(1)

The plaintiff may, before or after the expiration of the period referred to in rule 5.72, 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, 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: 1908 No 89 Schedule 2 r 128

5.73A 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.

Rule 5.73A: inserted, on 4 February 2013, by rule 9 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

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)

personal service:

(b)

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

(c)

service at an address directed by the court 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 5.40(5)(a), 5.42(2)(b)(i), or 5.44(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 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: 1908 No 89 Schedule 2 r 192

Rule 6.1(1)(d): amended, on 11 November 2013, by rule 8 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

Rule 6.1(1)(e): inserted, on 11 October 2013, by rule 12 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

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: 1908 No 89 Schedule 2 r 193

6.3 Notices

Rules 6.1 and 6.2 and rules 6.4 to 6.25 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: 1908 No 89 Schedule 2 r 194

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: 1908 No 89 Schedule 2 r 205

Rule 6.4(1)(a): amended, on 19 August 2013, by section 9 of the Marriage (Definition of Marriage) Amendment Act 2013 (2013 No 20).

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: 1908 No 89 Schedule 2 r 206

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 transmitted 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: 1908 No 89 Schedule 2 r 206A

Rule 6.6(1): amended, on 11 November 2013, by rule 9 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

Rule 6.6(1)(a)(i): amended, on 1 July 2015, by rule 5(1) of the High Court Amendment Rules 2015 (LI 2015/102).

Rule 6.6(2): amended, on 11 October 2013, by rule 13(2) of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Rule 6.6(6): inserted, on 11 October 2013, by rule 13(3) of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Rule 6.6(7): inserted, on 11 October 2013, by rule 13(3) of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Rule 6.6(7)(a): amended, on 1 July 2015, by rule 5(2) of the High Court Amendment Rules 2015 (LI 2015/102).

Rule 6.6(8): inserted, on 11 October 2013, by rule 13(3) of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Rule 6.6(9): inserted, on 11 October 2013, by rule 13(3) of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Rule 6.6(10): inserted, on 11 October 2013, by rule 13(3) of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Rule 6.6(11): inserted, on 11 October 2013, by rule 13(3) of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

6.7 Service under agreement

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

Compare: 1908 No 89 Schedule 2 r 210

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 come to the knowledge of the person to be served or it cannot be promptly served, the court 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: 1908 No 89 Schedule 2 r 211

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: 1908 No 89 Schedule 2 r 195

6.10 Proof of service

(1)

The service of a document may be proved on oath before the court or by affidavit in form G 16.

(2)

If the service of a document is proved by affidavit in form G 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: 1908 No 89 Schedule 2 r 196

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: 1908 No 89 Schedule 2 r 197

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: 1908 No 89 Schedule 2 r 198

6.13 Personal service in New Zealand on foreign corporations

(1)

An overseas company (within the meaning of section 2 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 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: 1908 No 89 Schedule 2 r 199

6.13A 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 that 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.

Rule 6.13A: inserted, on 11 October 2013, by rule 14 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

6.13B 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 the 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 company 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.

Rule 6.13B: inserted, on 11 October 2013, by rule 14 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

6.14 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: 1908 No 89 Schedule 2 r 200

6.15 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: 1908 No 89 Schedule 2 r 201

6.16 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 the person’s affairs in respect of the subject matter of the proceeding and to defend the particular proceeding.

Compare: 1908 No 89 Schedule 2 r 202

6.17 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 for whom the representative has been appointed to represent or on whose behalf the representative sues or defends.

Compare: 1908 No 89 Schedule 2 r 208

6.18 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: 1908 No 89 Schedule 2 r 209

6.19 Service of statement of claim on certain days void

(1)

A statement of claim must not be served on Christmas Day, New Year’s Day, or Good Friday.

(2)

Section 54 of the Act is not affected.

Compare: 1908 No 89 Schedule 2 r 207

6.20 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: 1908 No 89 Schedule 2 r 212

Subpart 3—Foreign process

6.21 Service of foreign process

(1)

This subpart applies when a request is made to the court to effect service of a foreign process on a person in New Zealand.

(2)

A request may be made to the court to effect service of a foreign process on a person in New Zealand in any manner permitted or required by the provisions of a convention.

(3)

Service in New Zealand of a foreign process must be in accordance with a convention if—

(a)

the convention contains an express provision governing the service of that process in New Zealand; and

(b)

that convention excludes other methods of service.

(4)

When service is in accordance with a convention, no court fees are to be charged for the filing of any document or the doing of any act relating to the service or the certification of service.

(5)

A letter of request from a foreign court requesting service of process on any person in New Zealand in connection with any civil matter pending before that foreign court must be forwarded through diplomatic channels to the Secretary of Foreign Affairs and Trade who must send it to the Secretary for Justice for further transmission to the Registrar with an intimation that it is desirable that effect should be given to that request.

(6)

A letter of request must be accompanied by—

(a)

a translation of it in English if it is not in English; and

(b)

2 copies of the process or citation to be served; and

(c)

2 copies of the process or citation in English or translated into English.

(7)

Subclauses (5) and (6) and rules 6.22 to 6.25 apply subject to the provisions of any relevant convention.

(8)

In this rule, convention means any treaty to which New Zealand is a party that makes provision for service of foreign process in New Zealand.

Compare: 1908 No 89 Schedule 2 r 213

6.22 Sheriff to effect service

Service of the process or citation must be effected by the Sheriff whose registry is nearest to the place where the person to be served resides, or by any officer appointed by that Sheriff.

Compare: 1908 No 89 Schedule 2 r 214

6.23 Method of service

Service must be effected by leaving, in accordance with these rules, a copy of the process or citation and of any translation with the person to be served.

Compare: 1908 No 89 Schedule 2 r 215

6.24 Return as to service

After service of the process or citation has been effected or (if that is the case) attempts to effect service of the process or citation have failed, the Sheriff or the officer effecting or attempting to effect service must return to the Registrar of the court nearest to the place of service or attempted place of service—

(a)

1 copy of the process or citation; and

(b)

an affidavit made by the Sheriff or the officer stating when, where, and how the Sheriff or officer effected service or attempted to effect service; and

(c)

a statement of the costs incurred in effecting, or attempting to effect, service.

Compare: 1908 No 89 Schedule 2 r 216

6.25 Certification

The Registrar must give a certificate in form G 17

(a)

identifying the documents annexed, namely the letter of request for service, a copy of the process or citation received with the letter, and a copy of the affidavit referred to in rule 6.24(b); and

(b)

certifying—

(i)

that the method of service of the process and the proof of service comply with the law and practice of the High Court of New Zealand regulating the service of New Zealand legal process in New Zealand and its proof; or

(ii)

if that is the case, that service of the process could not be effected for the reason specified in the certificate; and

(c)

certifying the cost of effecting, or attempting to effect, service.

6.26 Sealing and transmission of certificate

The certificate given under rule 6.25 must be sealed with the seal of the court and sent to the Secretary for Justice who must send it to the Secretary of Foreign Affairs and Trade for further transmission through diplomatic channels to the foreign court.

Compare: 1908 No 89 Schedule 2 r 217

Subpart 4—Service out of New Zealand

6.27 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), which 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 the proceeding relates to the carrying out or discharge of the trusts of any written instrument of which the person to be served is a trustee and which ought to be carried out or discharged according to the law of New Zealand:

(g)

when any relief is sought against any person domiciled or ordinarily resident in New Zealand:

(h)

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:

(i)

when the proceeding is for the administration of the estate of any deceased person who at the time of his or her death was domiciled in New Zealand:

(j)

when the claim arises under an enactment and either—

(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):

(k)

when the person to be served has submitted to the jurisdiction of the court:

(l)

when a claim is made for restitution or for the remedy of constructive trust and the defendant’s alleged liability arises out of acts committed within the jurisdiction:

(m)

when it is sought to enforce any judgment or arbitral award.

Compare: 1908 No 89 Schedule 2 r 219

6.28 When allowed with leave

(1)

In any proceeding when service is not allowed under rule 6.27, 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 6.29, 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: 1908 No 89 Schedule 2 r 220

6.29 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 protested under rule 5.49, the court must dismiss the proceeding unless the party effecting service establishes—

(a)

that there is—

(i)

a good arguable case that the claim falls wholly within 1 or more of the paragraphs of rule 6.27; and

(ii)

the court should assume jurisdiction by reason of the matters set out in rule 6.28(5)(b) to (d); or

(b)

that, had the party applied for leave under rule 6.28,—

(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 6.28, and the court’s jurisdiction is protested under rule 5.49, and it is claimed that leave was wrongly granted under rule 6.28, 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: 1908 No 89 Schedule 2 r 220

6.30 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.

6.31 Notice to defendant served outside New Zealand

If a defendant is to be served out of New Zealand, the memorandum required by rule 5.23(4) must also include a notice, which may be in form 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 5.49.

Compare: 1908 No 89 Schedule 2 r 221

6.32 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 6.33 and 6.34.

(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: 1908 No 89 Schedule 2 r 222

6.33 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: 1908 No 89 Schedule 2 r 223

6.34 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 form 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: 1908 No 89 Schedule 2 r 224

6.35 Time for filing defence

Except when the court otherwise orders, a defendant 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: 1908 No 89 Schedule 2 r 225

6.36 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.

Rule 6.36: inserted, on 11 October 2013, by rule 15 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Part 7 Case management, interlocutory applications, and interim relief

Subpart 1—Case management

Part 7 subpart 1: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.1AA Outline of case management procedures for different types of proceedings

(1)

An ordinary defended proceeding or a complex defended proceeding—

(a)

is subject to a first case management conference (see rule 7.3):

(b)

may be the subject of 1 or more further case management conferences (see rule 7.4):

(c)

may also be the subject of an issues conference (see rule 7.5):

(d)

if the proceeding is being, or has been, allocated a hearing or trial date, may be the subject of a pre-trial conference (see rule 7.8).

(2)

An application for leave to appeal, or an appeal, under Part 20 (Appeals), Part 21 (Cases stated), or Part 26 (Arbitration Act 1996) is subject to case management under different provisions (see rules 7.14 and 7.15).

(3)

A proceeding commenced by originating application is subject to limited case management through the ability of the parties to seek directions (see rules 19.11 and 7.43A).

(4)

A proceeding on the commercial list is subject to limited case management through the ability of parties to seek directions (see rules 29.10 to 29.12).

(5)

A proceeding under Part 30 may be subject to case management under rule 7.17.

(6)

The following proceedings are not subject to case management:

(a)

undefended proceedings:

(b)

an application under Part 24 (Insolvency) or Part 31 (Companies: Liquidation).

(7)

This rule operates only as a guide, and if any other provision of these rules or any other enactment is inconsistent with this rule, that other provision or enactment prevails.

Rule 7.1AA: inserted, on 11 November 2013, by rule 10 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

Rule 7.1AA(5): replaced, on 1 January 2015, by rule 4 of the High Court Amendment Rules (No 2) 2014 (LI 2014/348).

7.1 Proceedings subject of case management

(1)

Case management in accordance with this subpart will be applied to the following proceedings in order to promote their just, speedy, and inexpensive determination:

(a)

ordinary or complex defended hearings:

(b)

an application for leave to appeal, or an appeal, under Part 20 (Appeals), Part 21 (Cases stated), or Part 26 (Arbitration Act 1996):

(c)

a proceeding under Part 30.

(2)

[Revoked]

(3)

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.

(4)

In this rule,—

complex defended proceeding means one that, in a Judge’s opinion, needs intensive case management and therefore needs more than 1 case management conference before a fixture is allocated

ordinary defended proceeding means one that, in a Judge’s opinion, does not require intensive case management and therefore does not need more than 1 case management conference before a fixture is allocated.

(5)

For the purposes of this subpart, a proceeding must be classified as—

(a)

an ordinary defended proceeding; or

(b)

a complex defended proceeding; or

(c)

an application under Part 24 (Insolvency) or Part 31 (Companies: Liquidation); or

(d)

an application for leave to appeal, or an appeal, under Part 20 (Appeals), Part 21 (Cases stated), or Part 26 (Arbitration Act 1996); or

(e)

an undefended proceeding; or

(f)

an application commenced by originating application under Part 19 (originating applications); or

(g)

a proceeding on the commercial list; or

(h)

a proceeding under Part 30.

(6)

The proper classification of a proceeding as either an ordinary defended proceeding or a complex defended proceeding in terms of subclause (5) must be—

(a)

resolved by a Judge not later than the date of the first case management conference; and

(b)

promptly advised to the parties.

(7)

A Judge may at any time review the classification assigned under subclause (5) and decide whether to maintain or alter it.

(8)

Proceedings under subclause (5)(f) and (g) are subject to limited case management through the ability of the parties to seek directions.

(9)

The following proceedings are not subject to case management:

(a)

undefended hearings:

(b)

an application under Part 24 (Insolvency) or Part 31 (Companies: Liquidation).

Compare: 1908 No 89 Schedule 2 r 7.1 prior to 1 February 2013

Rule 7.1: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

Rule 7.1(1): replaced, on 11 November 2013, by rule 11(1) of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

Rule 7.1(1)(c): inserted, on 1 January 2015, by rule 5(1) of the High Court Amendment Rules (No 2) 2014 (LI 2014/348).

Rule 7.1(2): revoked, on 11 November 2013, by rule 11(1) of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

Rule 7.1(5)(d): amended, on 11 November 2013, by rule 11(2) of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

Rule 7.1(5)(g): amended, on 1 January 2015, by rule 5(2) of the High Court Amendment Rules (No 2) 2014 (LI 2014/348).

Rule 7.1(5)(h): inserted, on 1 January 2015, by rule 5(3) of the High Court Amendment Rules (No 2) 2014 (LI 2014/348).

Rule 7.1(8): replaced, on 11 November 2013, by rule 11(3) of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

Rule 7.1(9): inserted, on 11 November 2013, by rule 11(3) of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

7.2 Case management conferences generally

(1)

A Judge may hold a case management conference at any time.

(2)

A case management conference may be held by a Judge on the Judge’s own initiative or on the application of 1 or more of the parties.

(3)

At any case management conference, the Judge may give directions to secure the just, speedy, and inexpensive determination of the proceedings, including the fixing of timetables and directing how the hearing or trial is to be conducted.

Compare: 1908 No 89 Schedule 2 r 7.2 prior to 1 February 2013

Rule 7.2: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

Rule 7.2(2): amended, on 1 January 2015, by rule 6 of the High Court Amendment Rules (No 2) 2014 (LI 2014/348).

7.3 First case management conferences

(1)

This rule does not apply if—

(a)

no statement of defence has been filed in a proceeding; or

(b)

the proceeding is an appeal within rule 7.14.

(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 Schedule 5 matters; and

(b)

the making of a discovery or other order under rule 8.5; and

(c)

the hearing, and if practicable the disposal, of any outstanding interlocutory application; and

(d)

the fixing of—

(i)

a close of pleadings date; and

(ii)

a hearing or trial date for a proceeding classified as an ordinary defended proceeding and the making of appropriate trial directions; and

(iii)

a date and arrangements for any further case management, issues, or pre-trial conference; and

(e)

other appropriate matters that have already been discussed by the parties.

(4)

The parties must either file a joint memorandum addressing the Schedule 5 matters no later than 10 working 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 Schedule 5. 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)

The joint memorandum referred to in subclause (4) may be combined with any joint memorandum filed in relation to discovery under rule 8.11.

(8)

A separate memorandum referred to in subclause (5) may be combined with any separate memorandum filed in relation to discovery under rule 8.11.

(9)

Any memorandum under this subpart may be filed by fax or email transmission.

Compare: 1908 No 89 Schedule 2 r 7.3 prior to 1 February 2013

Rule 7.3: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

Rule 7.3(4): amended, on 1 July 2013, by rule 4(1) of the High Court Amendment Rules (No 2) 2013 (SR 2013/214).

Rule 7.3(5): amended, on 1 July 2013, by rule 4(2) of the High Court Amendment Rules (No 2) 2013 (SR 2013/214).

Rule 7.3(5): amended, on 1 July 2013, by rule 4(3) of the High Court Amendment Rules (No 2) 2013 (SR 2013/214).

Rule 7.3(9): inserted, on 1 July 2015, by rule 6 of the High Court Amendment Rules 2015 (LI 2015/102).

7.4 Further case management conferences

(1)

The Judge at the first case management conference of any defended proceeding may require a further case management conference or order one on the application of a party.

(2)

The agenda for a conference under this rule—

(a)

will be set out in the order directing the conference, but a party may add a further item or items (if practicable, giving advance notice to the other parties); and

(b)

will include or adapt the Schedule 5 matters; and

(c)

may prescribe steps to be taken in preparation for the conference.

(3)

The parties must either file a joint memorandum addressing the Schedule 5 matters no later than 10 working days before the conference, or file separate memoranda addressing those matters in accordance with rule 7.3(5), and rule 7.3(6) to (8) applies accordingly, with any necessary modifications.

Compare: 1908 No 89 Schedule 2 r 7.3 prior to 1 February 2013

Rule 7.4: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

Rule 7.4(3): inserted, on 1 July 2015, by rule 7 of the High Court Amendment Rules 2015 (LI 2015/102).

7.5 Issues conferences

(1)

The Judge may at any time, on the Judge’s own initiative or if the parties agree, order an issues conference for any defended proceeding to advance the identification and refinement of the issues, and set the date and agenda for that issues conference.

(2)

The Judge may issue a direction before an issues conference that requires the attendance at the conference of all or any of the following:

(a)

instructing solicitors:

(b)

all counsel engaged:

(c)

the parties (or, in the case of corporate parties, their senior officers or authorised representatives).

(3)

If any conflict arises between the pleadings and the issues as identified and refined before or at an issues conference, the pleadings prevail.

Compare: 1908 No 89 Schedule 2 r 7.3 prior to 1 February 2013

Rule 7.5: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.6 Allocation of key dates

(1)

If it appears to the Judge at the first case management conference that a proceeding can be readied for hearing or trial, the Judge must immediately allocate a date for hearing or trial.

(2)

If a proceeding has not been allocated a hearing or trial date at the first case management conference, the Judge must allocate a date for its hearing or trial when the Judge is satisfied that it can be readied for hearing or trial.

(3)

A proceeding can be readied for hearing or trial for the purpose of subclauses (1) and (2) if it is reasonably anticipated that it will be able to proceed to hearing or trial without the need for—

(a)

any significant amendment of the pleadings; or

(b)

any significant interlocutory application; or

(c)

any significant refinement of the issues in the proceeding.

(4)

In addition to allocating a hearing or trial date under subclause (1) or (2), the Judge must fix a close of pleadings date.

(5)

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.

Compare: 1908 No 89 Schedule 2 rr 7.13, 7.17 prior to 1 February 2013

Rule 7.6: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.7 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 amendment of a defect or an error under rule 1.9.

Compare: 1908 No 89 Schedule 2 r 7.18 prior to 1 February 2013

Rule 7.7: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.8 Pre-trial conferences

(1)

The Judge or Registrar may order a pre-trial conference for a proceeding that is being or has been allocated a hearing or trial date.

(2)

Any matter may be considered at a pre-trial conference, including—

(a)

whether background facts can be agreed to avoid hearing uncontested evidence:

(b)

the size, contents, and format of the agreed bundle of documents:

(c)

the amount of detail in any chronology of facts:

(d)

whether it will be helpful to direct the provision of lists of enactments and cases likely to be referred to:

(e)

whether any oral evidence direction should be made under rule 9.10.

(3)

The Judge at a pre-trial conference may give directions to secure the just, speedy, and inexpensive determination of the proceeding, including directions as to how the hearing or trial is to be conducted.

Rule 7.8: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.9 Cancellation of conference

A Judge may cancel a case management or issues 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: 1908 No 89 Schedule 2 r 7.6 prior to 1 February 2013

Rule 7.9: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.10 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: 1908 No 89 Schedule 2 r 7.8 prior to 1 February 2013

Rule 7.10: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.11 Timetable and monitoring obligations

The Registrar must—

(a)

arrange the date of the first case management conference under rule 7.3(2):

(b)

remind parties or their counsel of the timetable obligations associated with any case management or pre-trial 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.

Rule 7.11: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.12 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 under rule 7.6(1) or (2); 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: 1908 No 89 Schedule 2 r 7.15 prior to 1 February 2013

Rule 7.12: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.13 Registrar’s functions in relation to hearing dates

(1)

After a Judge has allocated a hearing or trial date for a proceeding under rule 7.6(1) or (2), the Registrar must promptly—

(a)

record the proceeding in the list kept under rule 7.12(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: 1908 No 89 Schedule 2 r 7.16 prior to 1 February 2013

Rule 7.13: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.14 Case management conferences for appeals

(1)

In the case of an appeal under Part 20 or 26, the Registrar must make arrangements for a case management conference to be held on the first available date that is 15 working days after any of the following dates:

(a)

the date on which a notice of appeal under rule 20.6 or an originating application under rule 26.3 is filed:

(b)

the date on which leave to appeal is granted on an application under rule 20.3 or 26.15.

(2)

A case management conference under this rule may be held as part of an appeals list.

(3)

The appellant must, as soon as practicable after being notified of the date of the case management conference, give notice of that date to everyone who has been, or is to be, served with a copy of the notice of appeal or the originating application.

(4)

The parties must, not later than 2 working days before the case management conference,—

(a)

file a joint memorandum; or

(b)

each file a memorandum.

(5)

Any memorandum filed must—

(a)

address the matters set out in Schedule 6; and

(b)

specify any directions in Schedule 6 that should be deleted or modified, and why; and

(c)

set out any additional directions sought, and why; and

(d)

set out the issues raised by the appeal if they are not fully set out, or are different from those set out, in the notice of appeal.

(6)

The directions set out in Schedule 6 apply except to the extent that those directions are modified by directions given by the Judge.

Compare: 1908 No 89 Schedule 2 r 7.5 prior to 1 February 2013

Rule 7.14: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

Rule 7.14(1): amended, on 11 November 2013, by rule 12 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

7.15 Directions for conduct of appeal

(1)

At a case management conference held under rule 7.14, the Judge will give directions for the conduct of the appeal that may, without limitation, include directions—

(a)

as to service of the notice of appeal or the originating application, including service on persons not currently parties:

(b)

about any cross-appeal, including directions as to service:

(c)

in the case of an appeal under Part 20, as to how and when any application to adduce further evidence on appeal is to be dealt with:

(d)

in the case of an appeal under Part 26,—

(i)

as to the preparation of the record in accordance with rule 26.10 or in any other manner the Judge thinks fit:

(ii)

as to the transcription of the evidence in accordance with rule 26.11:

(e)

on any other matter for the purpose of best securing the just, speedy, and inexpensive determination of the appeal.

(2)

In the case of an appeal or reference by way of case stated under Part 21, this rule and rule 7.14 apply as if the appeal or reference were an appeal under Part 20, except that the references in rule 7.14(5) and (6) to Schedule 6 must be read as references to Schedule 7.

Compare: 1908 No 89 Schedule 2 r 7.5 prior to 1 February 2013

Rule 7.15: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.16 Jury notice

If either party to a proceeding to which section 19A of the Act applies requires the proceeding to be tried before a Judge and a jury, the party must give notice to that effect to the court and to the other party not later than—

(a)

5 working days before the close of pleadings date for the proceeding; or

(b)

a date fixed by a Judge for the purpose.

Compare: 1908 No 89 Schedule 2 r 7.14 prior to 1 February 2013

Rule 7.16: replaced, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.17 Case management conferences for proceedings under Part 30

(1)

A Registrar must convene a case management conference for a proceeding under Part 30 if a Judge makes a direction that a case management conference be held.

(2)

The Registrar must arrange for the conference management conference to be held as soon as practicable after the direction is made.

(3)

The plaintiff must, as soon as practicable after being notified of the date of the case management conference, give notice of that date to everyone who has been, or is to be, served with a copy of the notice of proceeding and statement of claim.

(4)

The parties must, not later than 2 working days before the case management conference,—

(a)

file a joint memorandum; or

(b)

each file a memorandum.

(5)

A memorandum must address the issues set out in Schedule 10.

(6)

At a case management conference, the Judge holding the conference will make orders and give directions relating to the proceeding.

Rule 7.17: replaced, on 1 January 2015, by rule 7 of the High Court Amendment Rules (No 2) 2014 (LI 2014/348).

7.18 No steps after setting down date without leave
[Revoked]

Rule 7.18: revoked, on 4 February 2013, by rule 10 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

Subpart 2—Interlocutory applications and interlocutory orders

7.19 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 G 31 or G 32.

(5)

This subpart applies to the application.

Compare: 1908 No 89 Schedule 2 r 237(1)–(3)

7.20 Affidavit to be filed with application

Any affidavit in support of the application must be filed at the same time as the application.

Compare: 1908 No 89 Schedule 2 r 241

7.21 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 of the court.

(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: 1908 No 89 Schedule 2 r 237(4), (5)

7.22 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 7.23.

Compare: 1908 No 89 Schedule 2 r 243

7.23 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 G 32.

(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: 1908 No 89 Schedule 2 r 240

7.24 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 G 33.

Compare: 1908 No 89 Schedule 2 r 244

7.25 Affidavit to be filed with notice of opposition

Any affidavit setting out evidence in support of the notice of opposition must be filed and served at the same time as the notice of opposition.

Compare: 1908 No 89 Schedule 2 r 245

7.26 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 within—

(a)

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, 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: 1908 No 89 Schedule 2 r 246

7.27 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: 1908 No 89 Schedule 2 r 253(1)

7.28 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: 1908 No 89 Schedule 2 r 253(2)

7.29 Rules governing affidavits

Rules 9.75 to 9.88 apply, with all necessary modifications, to affidavits filed for interlocutory applications.

Compare: 1908 No 89 Schedule 2 r 249(1)

7.30 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 7.29.

Compare: 1908 No 89 Schedule 2 r 249(2)

7.31 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: 1908 No 89 Schedule 2 r 247

7.32 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 7.31.

Compare: 1908 No 89 Schedule 2 r 248

7.33 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: 1908 No 89 Schedule 2 r 242(1)

7.34 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: 1908 No 89 Schedule 2 r 251(2), (3), (5)

7.35 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: 1908 No 89 Schedule 2 r 72A

7.36 Application for summary judgment to be heard in open court

Despite rule 7.34(1), every application for summary judgment must be heard in open court.

Compare: 1908 No 89 Schedule 2 r 251(1)

7.37 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 7.33.

(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: 1908 No 89 Schedule 2 r 250(1), (2)

7.38 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: 1908 No 89 Schedule 2 r 250(3), (4)

7.39 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 7.24(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 7.24(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: 1908 No 89 Schedule 2 r 251A

7.40 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: 1908 No 89 Schedule 2 r 252

7.41 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 7.19.

Compare: 1908 No 89 Schedule 2 r 254

7.42 Adjournment

The hearing of an application may, from time to time, be adjourned on any terms that the Judge thinks just.

Compare: 1908 No 89 Schedule 2 r 255

7.43 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 1.6.

(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: 1908 No 89 Schedule 2 r 234

7.43A 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 in which to commence or take a step in a proceeding; or

(c)

the correct method of proceeding under these rules.

Rule 7.43A: inserted, on 11 November 2013, by rule 13 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

7.44 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: 1908 No 89 Schedule 2 r 235

7.45 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: 1908 No 89 Schedule 2 r 236

7.46 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: 1908 No 89 Schedule 2 rr 242(2), 256

7.47 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 G 34:

(c)

the order must specify the date on which it was made:

(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: 1908 No 89 Schedule 2 r 257

Rule 7.47(3)(c): amended, on 1 July 2013, by rule 5 of the High Court Amendment Rules (No 2) 2013 (SR 2013/214).

7.48 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 of Part 7 (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: 1908 No 89 Schedule 2 r 258

Rule 7.48(1): replaced, on 4 February 2013, by rule 11 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

7.49 Order may be varied or rescinded if shown to be wrong

(1)

A party affected by an interlocutory order (whether made on a Judge’s own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.

(2)

A party may not apply under subclause (1) if the order or decision was made or given—

(a)

with the consent of the parties; or

(b)

on an interlocutory application for summary judgment under rule 12.4; or

(c)

by an Associate Judge in chambers.

(3)

Notice of an application under subclause (1) must be filed and served,—

(a)

if it is made by a party who was present or represented when the order was made or the decision given, within 5 working days after the order was made or the decision was given:

(b)

if it is made by a party who was not present and not represented, within 5 working days after receipt by the party of notice of the making of the order or the giving of the decision, and of its terms.

(4)

The application does not operate as a stay unless a Judge so orders.

(5)

Unless a Judge otherwise directs, the application must be heard by the Judge who made the order or gave the decision.

(6)

The Judge may,—

(a)

if satisfied that the order or decision is wrong, vary or rescind the order or decision; or

(b)

on the Judge’s own initiative or on the application of a party, transfer the application to the Court of Appeal.

Compare: 1908 No 89 Schedule 2 r 259

7.50 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.

(3)

Despite subclause (2), a Judge may, on application or on the Judge’s own initiative, direct that—

(a)

an application under subclause (2) to vary a determination made by an Associate Judge in chambers be heard as a review of an order made by an Associate Judge in chambers under section 26P of the Act and these rules:

(b)

an application under subclause (2) to vary a determination made by a Judge in chambers be heard as an application under rule 7.49(1) or be transferred to the Court of Appeal.

Compare: 1908 No 89 Schedule 2 r 260

7.51 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: 1908 No 89 Schedule 2 r 261

7.52 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: 1908 No 89 Schedule 2 r 262

Subpart 3—Interim relief

7.53 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.

Compare: 1908 No 89 Schedule 2 r 238(1), (2)

7.54 Undertaking as to damages

(1)

An applicant for an interlocutory injunction under rule 7.53 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: 1908 No 89 Schedule 2 r 238(3), (4)

7.55 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 under rule 7.43A and give directions accordingly.

Compare: 1908 No 89 Schedule 2 rr 331, 335, 336

Rule 7.55(4): amended, on 11 November 2013, by rule 14 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

7.56 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 under rule 7.43A and give directions accordingly.

Compare: 1908 No 89 Schedule 2 rr 332, 335

Rule 7.56(2): amended, on 11 November 2013, by rule 15 of the High Court Amendment Rules (No 3) 2013 (SR 2013/425).

7.57 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: 1908 No 89 Schedule 2 r 333

7.58 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 freezing injunction or other order; or

(ii)

to protect the person who is to pay the income.

Compare: 1908 No 89 Schedule 2 r 334

Subpart 4—Receivers

7.59 Application

Rules 7.60 to 7.67 apply to a receiver appointed under an order of the court to the extent that the order does not expressly provide otherwise.

Compare: 1908 No 89 Schedule 2 r 337

7.60 Address for service

The receiver must, within 5 working days after appointment, file a notice specifying an address for service.

Compare: 1908 No 89 Schedule 2 r 338

7.61 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: 1908 No 89 Schedule 2 r 339

7.62 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: 1908 No 89 Schedule 2 r 340

7.63 Accounts of receiver

A receiver must file accounts at the intervals or on the dates specified in directions given by a Judge.

Compare: 1908 No 89 Schedule 2 r 341

7.64 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: 1908 No 89 Schedule 2 r 342

7.65 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 87 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: 1908 No 89 Schedule 2 r 343

7.66 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: 1908 No 89 Schedule 2 r 344

7.67 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: 1908 No 89 Schedule 2 rr 345, 346

Subpart 5—Interim payments

7.68 Interpretation

In rules 7.69 to 7.76, 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: 1908 No 89 Schedule 2 r 346A

7.69 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: 1908 No 89 Schedule 2 r 346B

7.70 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: 1908 No 89 Schedule 2 r 346C

7.71 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: 1908 No 89 Schedule 2 r 346D

7.72 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: 1908 No 89 Schedule 2 r 346E

7.73 Directions on interim payment application

When an application is made under rule 7.69, 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: 1908 No 89 Schedule 2 r 346F

7.74 Non-disclosure of interim payment

(1)

The fact that an order has been made under rule 7.70(2) or 7.71(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: 1908 No 89 Schedule 2 r 346G

7.75 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: 1908 No 89 Schedule 2 r 346I

7.76 Counterclaims and other proceedings

Rules 7.68 to 7.75 apply, with all necessary modifications, to any counterclaim or proceeding in which one party seeks an order for an interim payment from another.

Compare: 1908 No 89 Schedule 2 r 346J

Subpart 6—Amendment of pleading

7.77 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, which 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 1.9.

(10)

This rule is subject to rule 7.7 (which prohibits steps after the close of pleadings date without leave).

Compare: 1908 No 89 Schedule 2 r 187

Rule 7.77(2)(a): amended, on 1 January 2011, by rule 18(1) of the High Court Amendment Rules (No 2) 2010 (SR 2010/394).

Rule 7.77(4): amended, on 1 January 2011, by rule 18(2) of the High Court Amendment Rules (No 2) 2010 (SR 2010/394).

Rule 7.77(10): replaced, on 4 February 2013, by rule 12 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

Subpart 7—Recovery of specific property subject to lien

7.78 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: 1908 No 89 Schedule 2 r 180

Subpart 8—Negotiations for settlement

7.79 Court may assist in negotiating for settlement

(1)

A Judge may, at any time before the hearing of a proceeding, convene a conference of the parties in chambers for the purpose of negotiating for a settlement of the proceeding or of any issue, and may assist in those negotiations.

(2)

A Judge who presides at a conference under subclause (1) may not preside at the hearing of the proceeding unless—

(a)

all parties taking part in the conference consent; and

(b)

the Judge is satisfied there are no circumstances that would make it inappropriate for the Judge to do so.

(3)

A Judge may, at any time during the hearing of a proceeding, with the consent of the parties, convene a conference of the parties for the purpose of negotiating for a settlement of the proceeding or of any issue.

(4)

A Judge who convenes a conference under subclause (3) may not assist in the negotiations, but must arrange for an Associate Judge or another Judge to do so unless—

(a)

the parties agree that the Judge should assist and continue to preside at the hearing; and

(b)

the Judge is satisfied there are no circumstances that would make it inappropriate for the Judge to do so.

(5)

A Judge may, with the consent of the parties, make an order at any time directing the parties to attempt to settle their dispute by the form of mediation or other alternative dispute resolution (to be specified in the order) agreed to by the parties.

(6)

The parties, and a Judge or Associate Judge who presides at a conference or assists in negotiations under this rule, must not disclose any statement made during a conference, either—

(a)

in court; or

(b)

otherwise.

(7)

This rule must be read with subpart 8 of Part 2 of the Evidence Act 2006 (privilege).

Compare: 1908 No 89 Schedule 2 r 442

7.80 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.

Compare: 1908 No 89 Schedule 2 r 383A

Subpart 9—Interim relief in respect of overseas proceedings

7.81 Interim relief in support of overseas proceedings

(1)

On the application of a party or an intended party to judicial proceedings commenced or to be commenced outside New Zealand (overseas proceedings), the court may, if the court thinks it just to do so, give interim relief in support of the overseas proceedings.

(2)

These rules apply to an application under subclause (1) as if the overseas proceedings for which support is sought had been commenced under these rules.

(3)

Subclause (1) does not apply to—

(a)

an application for an interim payment under subpart 5:

(b)

an application for discovery under subpart 3 of Part 8:

(c)

an application in relation to evidence under Part 9:

(d)

an application for a freezing order under Part 32.

(4)

Before making an order under this rule, the court must be satisfied that there is a real connecting link between the subject matter of the interim relief and the territorial jurisdiction of the court.

(5)

An order under subclause (1) must not be inconsistent with interim relief granted in the overseas proceedings by the court outside New Zealand.

(6)

This rule does not apply to a civil proceeding commenced or to be commenced in an Australian court.

Rule 7.81(6): inserted, on 11 October 2013, by rule 16 of the High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/351).

Part 8 Discovery and inspection and interrogatories

Part 8: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

Subpart 1—Discovery and inspection

Part 8 subpart 1: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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.

Rule 8.1: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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.

Rule 8.2: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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 which are potentially discoverable must be preserved in readily retrievable form even if they would otherwise be deleted in the ordinary course of business.

Rule 8.3: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

8.4 Initial disclosure

(1)

After filing a pleading, a party must, unless subclause (2) applies, serve on the other parties, at the same time as the service of that pleading, a bundle 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 need not comply with subclause (1) if—

(a)

the circumstances make it impossible or impracticable to comply with subclause (1); 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.

(3)

A party acting under subclause (2) must, unless the other parties agree that initial disclosure is not required, or that a longer period is acceptable, either serve the bundle referred to in subclause (1) within 10 working days from the service of the pleading or apply for a variation of that requirement within that period.

(4)

If a party fails to comply with subclause (1) or (3), a Judge may make any of the orders specified in rule 7.48.

(5)

Despite subclause (1), a party does not need to disclose any document in which the party claims privilege or that a party claims to be confidential.

(6)

Despite subclause (1), a party does not need to disclose any document that either—

(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.

(7)

Despite subclause (1), a party does not need to include in a bundle served by that party any document contained in a bundle already served by any party or any document attached to an affidavit already filed in court.

(8)

The bundle of documents may be served either electronically or as a bundle of copies in hard copy form.

(9)

If an amended pleading is filed prior to the making of a discovery order, this rule applies to that amended pleading if it either—

(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.

Rule 8.4: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

8.5 Discovery orders to be made at 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 first case management conference that is held for the proceeding, unless there is good reason for making the order later.

(3)

[Revoked]

Rule 8.5: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

Rule 8.5(1): amended, on 4 February 2013, by rule 13(1) of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

Rule 8.5(3): revoked, on 4 February 2013, by rule 13(2) of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

8.6 Two kinds of discovery

Discovery orders made under this subpart may direct either—

(a)

standard discovery; or

(b)

tailored discovery.

Rule 8.6: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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; or

(b)

documents that adversely affect that party’s own case; or

(c)

documents that adversely affect another party’s case; or

(d)

documents that support another party’s case.

Rule 8.7: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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.

Rule 8.8: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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 are on the commercial list; or

(c)

that involve 1 or more allegations of fraud or dishonesty; or

(d)

in which the total of the sums in issue exceeds $2,500,000; or

(e)

in which the total value of any assets in issue exceeds $2,500,000; or

(f)

in which the parties agree that there should be tailored discovery.

Rule 8.9: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

Rule 8.9(b): replaced, on 4 February 2013, by rule 14 of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

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 Part 1 of Schedule 9 or under some other method of classification that facilitates the identification of particular documents.

Rule 8.10: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

8.11 Preparation for first case management conference

(1)

The parties must, not less than 10 working days before the first 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.

(2)

The joint memorandum, or separate memoranda, filed under rule 7.3 must, in addition to the matters required to be addressed under rule 7.3(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, they need advise the Judge only that variation has been agreed, not the details of that variation.

Rule 8.11: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

Rule 8.11(2): amended, on 4 February 2013, by rule 15(1) of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

Rule 8.11(2): amended, on 4 February 2013, by rule 15(2) of the High Court Amendment Rules (No 2) 2012 (SR 2012/409).

8.12 Orders that may be made

(1)

At the 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)

The discovery order may—

(a)

incorporate the listing and exchange protocol set out in Part 2 of Schedule 9; or

(b)

vary that protocol; or

(c)

contain other obligations that are considered appropriate.

(3)

The 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.

Rule 8.12: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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.

Rule 8.13: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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.

Rule 8.14: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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; and

(f)

state any restrictions proposed to protect the claimed confidentiality of any document.

(3)

The affidavit may be in form G 37.

(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: 1908 No 89 Schedule 2 r 8.20 prior to 1 February 2012

Rule 8.15: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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 documents that—

(a)

are in the control of the party giving discovery and for which the party does not claim privilege or confidentiality:

(b)

are in the control of the party giving discovery for which privilege is claimed, stating the nature of the privilege claimed:

(c)

are in the control of the party giving discovery for which confidentiality is claimed, stating the nature and extent of the confidentiality:

(d)

have been, but are no longer, in the control of the party giving discovery, stating when the documents ceased to be in that control, and the person who now has control of them:

(e)

have 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, 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: 1908 No 89 Schedule 2 r 8.21 prior to 1 February 2012

Rule 8.16: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

8.17 Variation of discovery order

(1)

Subject to rule 7.18, 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: 1908 No 89 Schedule 2 r 8.22 prior to 1 February 2012

Rule 8.17: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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.

Rule 8.18: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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 who now has control 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: 1908 No 89 Schedule 2 r 8.24 prior to 1 February 2012

Rule 8.19: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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 who now has control 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: 1908 No 89 Schedule 2 r 8.25 prior to 1 February 2012

Rule 8.20: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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 who now has control 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: 1908 No 89 Schedule 2 r 8.26 prior to 1 February 2012

Rule 8.21: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.27 prior to 1 February 2012

Rule 8.22: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.28 prior to 1 February 2012

Rule 8.23: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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 9.82:

(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: 1908 No 89 Schedule 2 r 8.30 prior to 1 February 2012

Rule 8.24: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.31 prior to 1 February 2012

Rule 8.25: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.32 prior to 1 February 2012

Rule 8.26: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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.

(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: 1908 No 89 Schedule 2 r 8.33 prior to 1 February 2012

Rule 8.27: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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.

Rule 8.28: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.34 prior to 1 February 2012

Rule 8.29: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.36 prior to 1 February 2012

Rule 8.30: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.37 prior to 1 February 2012

Rule 8.31: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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 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: 1908 No 89 Schedule 2 r 8.39 prior to 1 February 2012

Rule 8.32: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.42 prior to 1 February 2012

Rule 8.33: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

Subpart 2—Interrogatories

Part 8 subpart 2: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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 G 35.

Compare: 1908 No 89 Schedule 2 r 8.1 prior to 1 February 2012

Rule 8.34: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.2 prior to 1 February 2012

Rule 8.35: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.3 prior to 1 February 2012

Rule 8.36: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.4 prior to 1 February 2012

Rule 8.37: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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: 1908 No 89 Schedule 2 r 8.5 prior to 1 February 2012

Rule 8.38: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

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, either—

(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: 1908 No 89 Schedule 2 r 8.6 prior to 1 February 2012

Rule 8.39: replaced, on 1 February 2012, by rule 4 of the High Court Amendment Rules (No 2) 2011 (SR 2011/351).

8.40 Objection to answer

(1)

A party may object to answer an interrogatory on the following grounds only: