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Nauru Sessional Legislation |
REPUBLIC OF NAURU
CIVIL PROCEDURE ACT 1972
CIVIL PROCEDURE (AMENDMENT) RULES 1972
IN EXERCISE of the powers conferred, on me by section 76 of the Civil Procedure Act 1972, I hereby make the following rules of court-
SHORT
TITLE
1.
These Rules may be cited as the Civil Procedure (Amendment) Rules
1972.
INTERPRETATION
2.
In these Rules "the Rules of Court" means the Rules of Court set out in the
Schedule to the Schedule to the Civil Procedure Rules
1972.
ADDITION
OF A NEW ORDER 50 TO THE RULES OF
COURT
3.
The Rules of Court are amended by the addition of the new Order 50 set out in
the First Schedule to these
Rules.
ADDITIONAL
FORMS
PRESCRIBED
4.
Appendix A to the Rules of Court is amended by the addition of the two new
forms, Forms Nos. 52 and 53, set out in the Second Schedule
to these
Rules.
Made this 15th day of
November 1972.
I. R. Thompson
Chief Justice
_______
FIRST SCHEDULE
(Rule 3)
ORDER 50
PROCEEDINGS BY AND AGAINST THE REPUBLIC
APPLICATION
AND INTERPRETATION (O. 50, r.
1)
1.
(1) These Rules apply to civil proceedings to which the Republic is a party
subject to the following rules of this
Order.
(2) In this Order
-
"civil proceedings by the Republic", "civil proceedings against the Republic" and "civil proceedings by or against the Republic" have the same respective meanings as in Part III of the Republic Proceedings, Act 1972; they include civil proceedings by or against an instrumentality of the Republic or statutory corporation to which the provisions of section 3 of that Act have been applied by the Cabinet but do not include any of the proceedings specified in section 16 of that Act;
"civil proceedings to which the Republic is a party" has the same meaning as it has for the purposes of the Republic Proceedings Act1972 by virtue of subsection (3) of section 2 of that Act but also includes civil proceedings to which an instrumentality of the Republic or a statutory corporation to which the provisions of section 3 of that Act have been applied by the Cabinet is a party;
"instrumentality of the Republic" and "officer of the Republic" have the same meanings as they have for the purposes of the Republic Proceedings Act 1972 by virtue of subsection (2) of section 2 of that Act;
"order against the Republic" means any order, including an order for costs, made in any civil proceedings by or against the Republic or in connection with any arbitration to which the Republic is a party, in favour of any person against the Republic or against a Government department or against the President or an officer of the Republic as such;
"order" includes a judgment, decree, rule, award or declaration.
(3)
In this Order a reference to the Registrar shall, where the proceedings are in
the District Court, be taken as reference to the
resident
magistrate.
CERTIFICATE
OF LEAVE TO COMMENCE CIVIL PROCEEDINGS AGAINST THE REPUBLIC TO BE FILED BEFORE
ISSUE OF WRIT (O. 50, r.
2)
2.
No writ of summons to commence civil proceedings against the Republic which by
virtue of section 3 of the Republic Proceedings Act
1972 cannot be taken without
the leave of the Cabinet shall be issued unless prior to its issue the plaintiff
has presented at the
registry of the Court in which the proceedings are to be
commenced a certificate under the hand of the Secretary of the Cabinet that
the
Cabinet has given leave for those proceedings to be commenced and such
certificate has been
filed.
PARTICULARS
TO BE INCLUDED IN INDORSEMENT OF CLAIM (O. 50, r.
3)
3.
(1) in the case of a writ of summons which commences civil proceedings against
the Republic the indorsement of claim required by
Rule 3 of Order 5 shall
include a statement of the circumstances in which the Republic's liability is
alleged to have arisen and
as to the Government department, instrumentality of
the Republic or statutory corporation, or the President or officer of the
Republic,
concerned.
(2) If in
civil proceedings against the Republic the Secretary for justice considers that
the writ does not contain a sufficient statement
as required by this rule, he
may, before the expiration of the time limited for appearing, apply to the
plaintiff by notice for a
further and better statement containing such
information as may be specified in the
notice.
(3) Where the Secretary
for Justice gives a notice under this rule, the time limited for appearing shall
not expire until 4 days after
he has notified the plaintiff in writing that he
is satisfied with the statement supplied in compliance with the notice or 4 days
after the Court has, on the application of the plaintiff by summons served on
the Secretary for Justice not less than 7 days before
the return day, decided
that no further information as, to the matters referred to in paragraph (1) is
reasonably
required.
SERVICE
ON THE REPUBLIC (O. 50, r.
4)
4.
(1) order 8, other than Rules 6 and 7, Order 9 and any other provision of these
Rules relating to service out of Nauru shall not
apply in relation to the
service of any process by which civil proceedings against the Republic are
begun.
(2) Personal service of any
document required to be served on the Republic for the purpose of or in
connection with any civil proceedings
is not requisite; but where the
proceedings are by or against the Republic service on the Republic must be
effected by leaving the
document at the office of the Secretary for Justice or
of any member of the staff of the Secretary for Justice whom he has nominated
for the purpose.
(3) In relation
to the service of any document required to be served on the Republic for the
purpose of or in connection with any
civil proceedings by or against the
Republic, Rules 5 and 9 of Order 42 shall not apply, and Rule 7 of that Order
shall apply as
it the reference therein to Rule 2 and subparagraph (a) of Rule
5(1) of that Order were a reference to paragraph (2) of this
rule.
COUNTERCLAIM
IN CIVIL PROCEEDINGS BY REPUBLIC (O. 50, r.
5)
5.
(1) No counterclaim which by virtue of section 3 of the Republic Proceedings Act
1972 cannot be made without the leave of the Cabinet
may be included with the
defence in civil proceedings commenced by the Republic unless the Cabinet has
given leave for the counterclaim
to be
made.
(2) Where any defendant in
civil proceedings by the Republic has applied to the Cabinet for leave to make a
counterclaim in those
proceedings, the defence shall be indorsed with a note to
that effect.
(3) Where the defence
of any defendant in civil proceedings by the Republic is indorsed as provided
for by the last preceding paragraph
and leave to make the counterclaim is given
by the Cabinet, that defendant may, within 14 days of the decision of the
Cabinet upon
his application having been sent to him, serve on the Secretary for
Justice a counterclaim in accordance with such leave and lodge
a copy thereof,
together with a certificate under the hand of the Secretary to the Cabinet that
leave to make that Counterclaim has
been given by the Cabinet, in the registry
of the Court in which the proceedings have been
commenced.
(4) Notwithstanding the
provisions of Rule 1 of Order 29, where the defence of any defendant in civil
proceedings by the Republic
is indorsed as provided for by paragraph (2), the
suit shall not be set down for trial until 15 days after the decision of Cabinet
upon the application has been sent to the defendant concerned or, where the
defendant concerned has served a counterclaim in accordance
with the provisions
of the last preceding paragraph, 15 days rafter such
service.
COUNTERCLAIM
AND SET-OFF (O. 50, r.
6)
6.
(1) Notwithstanding the last preceding rule and Rules 17 and 18 of Order 15, a
person may not in any proceedings by the Republic
make any counterclaim or plead
a set-off if the proceedings are for the recovery of, or the counterclaim or
set-off arises out of
a right or claim to repayment in respect of any taxes,
duties or penalties.
(2)
Notwithstanding Rule 5, Rule 2 of Order 12 and Rules 17 and 18 of Order 15, no
counterclaim may be made, or set-off pleaded, without
the leave of the
Registrar, by the Republic in proceedings against the Republic, or by any person
in proceedings by the Republic
if the Subject-matter of claim in the suit
relates to a Government department, an instrumentality of the Republic or a
statutory
corporation and the subject-matter of the counterclaim or set-off does
not relate to that department, instrumentality or
corporation.
(3) Any application
for leave under this rule must be made by
summons.
THIRD
PARTY PROCEEDINGS AGAINST THE REPUBLIC (O. 50, r.
7)
7.
(1) Notwithstanding anything in Rule 1 of Order 13, a third party notice to join
the,
Republic, a Government department, an instrumentality of the Republic or a
statutory corporation to which the Cabinet has applied
the provisions of section
3 of the Republic Proceedings Act 1972, or the President or an officer of the
Republic in his official
capacity, as a third party in any proceedings shall not
be issued or given without the leave of the Registrar and, where the proceedings
may, by virtue of section 3 of the Republic Proceedings Act 1972, be taken only
with the leave of the Cabinet unless the party issuing,
or seeking to have
issued, the notice has lodged in the registry for filing a certificate under the
hand of the Secretary to the
Cabinet that leave to take those proceedings has
been given by the Cabinet.
(2)
Leave to issue such a notice as is referred to in the last preceding paragraph
shall not be granted unless the Registrar is satisfied
that the Republic is in
possession of all such information as it reasonably requires as to the
circumstances in which it is alleged
that the liability of the Republic has
arisen and as to the Government department, instrumentality of the Republic or
statutory corporation,
or the President or the officer of the Republic,
concerned.
(3) Where application has
been made to the Cabinet for leave to take the proceedings, the party who has
made the application may apply
to the Registrar by summons for an order that the
suit is not to be set down for trial without the leave of the Registrar, such
leave
not to be given until that party has withdrawn his application or has been
notified of the decision of the Cabinet upon it and has
had reasonable time to
take the appropriate steps, if any, in the proceedings consequent upon that
decision.
JUDGMENT
IN DEFAULT (O. 50, r.
8)
8.
(1) Except with the leave of the Registrar, no judgment in default of appearance
or of pleading shall be entered against the Republic
in civil proceedings
against the Republic or in third party proceedings against the
Republic.
(2) Except with the
leave of the Registrar, subparagraph (a) of Rule 5(1) of Order 13 shall not
apply in the case of third party proceedings
against the
Republic.
(3) An application for
leave under this rule shall be made by summons; the summons must be served not
less than 7 days before the
return
day.
DISCOVERY
AND INTERROGATORIE3 (O. 50, r.
9)
9.
(1) Rule 1 of Order 21 shall not apply in civil proceedings to which the
Republic is a party.
(2) In any
civil proceedings to which the Republic is a party any order of the Court made
under the powers conferred by subsection
(1) of section 21 of the Republic
proceedings Act 1972 shall be construed as not requiring the disclosure of the
existence of any
document the existence of which it would, in the opinion of a
Minister, be injurious to the public interest to
disclose.
(3) Where in any such
proceedings an order of the Court directs that a list of documents made in
answer to an order for discovery
against the Republic shall be verified by
affidavit, the affidavit shall be made by such officer of the Republic as the
Court may
direct.
(4) Where in any
such proceedings an order is made under the said section 21 for interrogatories
to be answered by the Republic, the
Court shall direct by what officer of the
Republic the interrogatories are to be
answered.
EVIDENCE
(O. 50, r.
10)
10.
(1) Civil proceedings against the Republic if leave to take them has
been
given by the Cabinet, be instituted under
Rule 15 of Order 33 in any case in which the Republic is alleged to have an
interest or
estate in the honour, title, dignity, office or property in
question.
(2) For the avoidance of doubt it is hereby declared that any powers exercisable by the Court in regard to the taking of evidence are exercisable in proceedings by or against the Republic as they are exercisable in proceedings between subjects.
EXECUTION
AND SATISFACTION OF ORDER (O. 50, r.
11)
11.
(1) Nothing in order 36 shall apply in respect of any order against the
Republic.
(2) An application under
the proviso to subsection (1) of section 18 of the Republic Proceedings Act
1972, for a direction that a
separate certificate shall be issued
under,
that subsection with respect to the costs, if any, ordered to be paid to the
applicant, may be made to the Court ex parte without
summons.
(3) A certificate issued
under subsection (1) of section 18 of the said Act must be in Form No. 52 or 53
of Appendix A, whichever
is
appropriate.
ATTACHMENT
OF DEBTS (O. 50, r.
12)
12.
(1) No order -
(a) for the attachment of debts under Rule 11 of Order 36, or
(b) for the appointment of a receiver under Order 26,
shall be made or have effect
in respect of any money due or accruing due or alleged to be due or accruing
due, from the Republic.
(2) Every
application to the Court for an order under subsection (1) of section 20 of the
Republic Proceedings Act 1972, restraining
any person from receiving money
payable to hint by the Republic and directing payment of the money to the
applicant or some Other
person must be made by summons served, at least 4 days
before the return day, on the Republic and, unless the Court otherwise orders,
on the person to be restrained or his barrister and solicitor or pleader; and
the application must be supported by an affidavit setting
out the facts giving
rise to it, and in particular identifying the particular debt from the Republic
in respect of which it is
made.
(3) Paragraphs (5) and (6)
of Rule 11 of Order 36 shall apply in relation to such an application as is
mentioned in the last preceding
paragraph for an order restraining a person from
receiving money payable to him by the Republic as those rules apply to an
application
under paragraph (1) of Rule 11 of that Order for are order for the
attachment of a debt owing to any person from a garnishee, except
that the Court
shall not have power to order execution to issue against the
Republic.
PROCEEDINGS
RELATING TO POSTAL PACKETS (O. 50, r.
13)
13.
(1) An application by any person under subsection (3) of section 7 of the
Republic Proceedings Act 1972 for leave to bring proceedings
in the name of the
sender or addressee of a postal packet or his personal representative must be
made by originating summons.
(2) The Republic and the
person in whose name the applicant seeks to bring proceedings must be made
defendants to a summons under
this
rule.
(3) No appearance need be
entered to a summons under this
rule.
APPLICATIONS
UNDER SECTION 22 OF THE REPUBLIC
PROCEEDINGS
ACT 1972 (O. 50, r.
14)
14.
An application such as is referred to in subsection (2) of section 22 of the
Republic Proceedings Act 1972 may be made to the Court
at any time before trial
by motion or summons, or may be made at the trial of the
proceedings.
_______
SECOND SCHEDULE
(Rule 4)
NEW FORMS NOS. 52 AND 53
FORM NO. CIV/52
REPUBLIC OF NAURU
CIVIL PROCEDURE ACT 1972
RULES OF COURT
(O. 50, r. 11)
CERTIFICATE OF ORDER AGAINST THE REPUBLIC
(Heading as in suit)
By a judgment*/order of this
Court dated the ......... day of ......
19....
It was adjudged*/ordered that
(give particulars of the judgment or
order).
I hereby certify that the
amount payable to ............... by ......... in pursuance of the said
judgment*/order is ............
* together with the interest thereon at the rate
of $......... per cent per annum until payment * and together with costs which
have
been taxed and certified by the taxing officer at $ ................
Interest is payable on the said costs at the rate of $ ..........
per cent per
annum from the ......... day of ...... 19 ... until
payment.
*This certificate does
not include the amount payable under the said judgment*/order in respect of
costs.
Dated the ..............
day of ................. 19...
(Signed)
*
delete where not applicable.
________
FORM NO. CIV/53
REPUBLIC OF NAURU
CIVIL PROCEDURE ACT 1972
RULES OF COURT
(O. 50, r. 11)
CERTIFICATE OF ORDER OF COSTS AGAINST THE REPUBLIC
(Heading as in suit)
By a judgment*/ order of
this Court dated the .......... day of ......... 19.... . It was adjudged* /
ordered that (give particulars
of the judgment or
order).
I hereby certify that the
costs payable to ............ by ...........in pursuance of the said
judgment*/order have been taxed and
certified by the taxing officer at $
......... * and interest is payable thereon at the rate of $ ......... per cent
per annum from
the......... day of ......... 19.... until
payment.
Dated the ...............
day of .............. 19...
(Signed)
* delete where not
applicable.
_____________________
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