SCR o 45 – Originating Motion

Question 1

45.02 Evidence by affidavit (on OM)

Answer 1

Evidence at the trial of a proceeding commenced by OM shall be given by affidavit, unless:

• the parties agree to oral evidence be given at the trial; or
• the Court otherwise orders.

Question 2

45.03 Judgment where no appearance (on OM)

Answer 2

Where a DEFENDANT FAILS TO FILE AN APPEARANCE in response to an OM within the time limited, Court may give judgment against that defendant for the relief or remedy sought in the OM:

• on application made by the plaintiff without notice to the defendant; and
• on PROOF OF SERVICE of the originating motion and of the FAILURE.

Question 3

45.04 Proceedings after appearance (on OM)

Answer 3

If a defendant DOES file an appearance, no judgment shall be against them except on APPLICATION by the plaintiff in accordance with this Rule.

The plaintiff should make an application to an AsJ BY SUMMONS in Form 45A and SERVED on the defendant.

The AsJ may, as appropriate—

• hear and DETERMINE the application or REFER it to another AsJ for hearing;
• by CONSENT of the defendant, give JUDGMENT;
• refer the application to a Judge of the Court for hearing and determination;
• place the proceeding in the LIST of cases for trial and give filing and service directions.

Question 4

45.05 Special procedure (OM in urgent case)

Answer 4

In an urgent case, or to save time and expense, or where the D consents, the Court may permit a plaintiff to commence proceedings by OM without requiring a defendant to appear.