Order 4 - Process in the Court Flashcards
Rule 4.01 - How Proceeding Commenced
by writ or by OM (will be usually indorsed with SoC), unless otherwise provided by Act/Rules
Interlocutory application 4.02
An interlocutory or other application in a proceeding made on notice to any person shall be by summons.
Names of parties 4.03
(1) generally plaintiff and defendant (2) preliminary discovery etc. - applicant and respondent (3) 1.12 - order to review - applicant and respondent (4) on appeal - appellant and respondent (5) identify accordingly.
When writ required 4.04
(1) All the time except where OM is required/permitted by Rules 1.12 (JR order), 4.05 and 4.06 and Order 58 (appeals from lower jurisdictions) (2) Redcrest OP that’s indorsed deemed to be writ
When originating motion required 4.05 (three times)
(1)(a) no defendant (b) authorised by Act (c) required by the rules (2) Redcrest un-endorsed OP deemed to be OM
commencement by OM 4.06 - Optional
Where (a) unlikely there’ll be any substantial dispute re: facts and (b) thus, it’s appropriate there be no pleadings/discovery
Continuance as writ of proceeding by originating motion 4.07
(1) Where would be more convenient, or ought to have been commenced by writ:
(a) court can order proceeding continue as if it has been commenced by writ, and order that affidavits already filed shall stand as pleadings w/ or w/o liberty to parties to amend, apply for particulars, and shall order discovery
(b) deemed to have commenced on day OM filed
(2) ref. to proceeding commenced by writ will capture above
Urgent case 4.08 (can make orders it could make if the proceeding had been commenced)
In urgent case, on application of person who intends to commence proceeding and on an undertaking they will commence a proceeding within specified time, court can make orders it could make if the proceeding had been commenced.
OO certification - 4.09 (4A)
For purposes of s 41(2) of CPA, shall be in Form 4A.
Certification of prior OO cert. - 4.09.1 (Form 4AB)
(1) For the purposes of section 41(5)(a)(i) of the CPA, the specified period is the period of two years prior to the date of the certification under section 41(5)(b).
(2) For the purposes of s 41(5)(b) of the CAP, the certification by a legal practitioner as to prior OO certification in relation to a party referred to in s 41(5)(a) shall be in Form 4AB.
Proper basis certification - 4.10 (4B)
(1) For purposes of s 42(1C) of the CPA, processes in Court for the registration or enforcement of judgments are exempt from proper basis certification requirements under CPA.
(2) For the purposes of section 42(2) of the CPA, the proper basis certification shall be in Form 4B.
