Order 45 - Originating Motion

Question 1

45.01 Definitions (two)

Answer 1

Judgment includes order; Proceeding means proceeding commenced by OM.

Question 2

45.02 Evidence by Affidavit

Answer 2

(1) Evidence ordinarily given by affidavit. (2) Can be given orally by agreement of parties, unless court orders otherwise.

Question 3

45.03 Judgement where no appearance (on application and proof of service)

Answer 3

(1) Where D fails to file appearance in the time limited, the Court may:
● (a) On app of the P w/o notice to the D; and
● (b) On proof or service of the OM and of the failure —
Give judgment against that D for the relief or remedy sought in the OM.
(2) For these rules, hearing of the application is the trial of proceeding.
(3) Except for purpose of proof of service of OM and of failure of D to appear, the P shall not, unless the Court otherwise orders, use in evidence on the application any affidavit made by the P or on the P’s behalf and not served on the D with the OM.

Question 4

45.04 Proceedings after appearance (summons - form 45A - hear/determine; give Judgment by consent; refer to j of court; place on trial list

Answer 4

(1) Where D has filed an appearance, no judgment can be given for the relief/remedy sought in the OM except on application by the P in accordance with this rule.
(2) How to make application: to Associate Judge by summons in Form 45A served on the defendant
(3) In proceeding commenced by OM under Order 53 (summary proceeding for land recovery), the P may apply for judgment on the day specified in the PM for application to AssJ
(4) Then AsJ may:
● (a) If they have authority to give the judgment sought, hear and determine the app or refer to another AsJ for hearing and determination
● (b) By consent of D, give judgment
● (c) Refer app to Judge of court for hearing and determination
● (d) Place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise.

Question 5

45.05 Special procedure

Answer 5

(1) In this rule, P includes a proposed plaintiff by OM.
(2)(a) court can dispense with appearance requirements; (b) authorise Form 5C commencement. (3)(a) In urgent case; or (b) to save time and expense; or (c) where D consents.
(4) order can be made before/after proceeding commences, and application may be made without notice to the D. (5) application made before proceeding commences otherwise not a proceeding for other requirements. (6) Judgment shan’t be given for P or order made except on application to AssJ or to Judge in Form 45B.
(7) where made to AssJ, may:
● (a) hear and determine the app or refer to another AsJ for hearing and determination
● (b) By consent of D, give judgment
● (c) Place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise.
(8) Where application made to Judge of the Court under paragraph (6), may give judgment/make any order Judge considers appropriate.