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Civil Procedure Act 1972 - Civil Procedure (Amendment) Rules 1979

REPUBLIC OF NAURU

CIVIL PROCEDURE ACT 1972

CIVIL PROCEDURE (AMENDMENT) RULES 1979

ARRANGEMENT OF RULES

Rule
1. Title
2. Interpretation
3. Amendment of Order 9 of the Rules of Court
4. Additional of new Order 64 to the Rules of Court
5. Additional forms prescribed
First Schedule - Proceedings under the Variation of Trusts Act, 1958
Second Schedule - New forms Nos. 55 and 56
Practice Direction - Service of writs of summons etc. out of Nauru

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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 -

TITLE

1. These Rules may be cited as the Civil Procedure (Amendment) Rules 1979.

INTERPRETATION

2. In these Rules "the Rules of Court" means the Rules of Court set out in the Schedule to the Civil Procedure Act 1972.

AMENDMENT OF ORDER 9 OF THE RULES OF COURT

3. Order 9 of the Rules of Court is amended -

(a) by deleting from paragraph (i) of Rule 4 thereof the comma immediately after the word and figures "Order 42"; and

(b) by adding to Rule 4 thereof immediately after paragraph (3) of that rule the following new paragraph (3A) -

"(3A) Subject to any direction to the contrary given by a judge for some special reason, service of a writ or notice of a writ which is served out of Nauru personally on the person required to be served shall be valid if, but only if, the writ or notice of writ is served in any of the ways referred to in Rule 5 or by a person who is for the time being lawfully practising as a legal practitioner (whatsoever title he may bear as such) in the country where the service is effected."

ADDITION OF A NEW ORDER 64 TO THE RULES OF COURT

4. The Rules of Court are amended by the addition of the new Order 64 set out in the First Schedule to these Rules.

ADDITIONAL FORMS PRESCRIBED

5. Appendix A of the Rules of Court is amended: by the addition thereto of the two new forms, Forms Nos. 55 and 56, set out in the Second Schedule to these Rules.

Made this 6th day of July, 1979.

I. R. Thompson,

Chief Justice.

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FIRST SCHEDULE

(Rule 4)

ORDER 64

PROCEEDINGS UNDER THE VARIATION OF TRUSTS ACT, 1958

APPLICATION UNDER SECTION 1 OF THE ACT

1. (1) Proceedings by which an application is made to the Supreme Court under section 1 of the Variation of Trusts Act, 1958, of England in its application to Nauru must be commenced by originating summons, which shall be in Form No. 55 in Appendix A.

(2) In addition to any other persons who are necessary and proper defendants to the originating summons by which such proceedings as are referred to in the preceding paragraph are commenced, the settlor and any other person who provided property for the purposes of the trusts to which the application in those proceedings relates must, if still alive and not the plaintiff, be made a defendant unless the Court for some special reason directs otherwise.

APPLICATION TO ORIGINATING SUMMONS OF CERTAIN PROVISIONS RELATING TO WRITS OF SUMMONS

2. The provisions of Orders 8, 9, 10 and 12 relating to writs of summons shall, so far as they can reasonably be applied to originating summonses, apply to an originating summons issued in pursuance of Rule 1.

FIXING TIME FOR ATTENDANCE

3. (1) Where all the defendants in any such proceedings as are referred to in Rule 1 have been served with the originating summons and -

(a) they have all -

(i) entered an appearance; or

(ii) notified the Court in writing that they do not intend to enter an appearance; or

(b) the time allowed for entering an appearance has expired,

a day and time for the attendance of the plaintiff and all the defendants who have entered an appearance shall, upon application by the plaintiff or any of the defendants who has entered an appearance, be fixed by the Registrar by notice in Form No. 56 in Appendix A.

(2) A sealed copy of the notice referred to in the preceding paragraph shall be served on every defendant who has entered an appearance -

(a) where the defendant is served in Nauru, not less than four days before the day fixed by the notice; and

(b) where the defendant is served out of Nauru, not less than twenty-one days before the day fixed by the notice.

EVIDENCE AT THE FIRST HEARING

4. (1) where the plaintiff intends to adduce on the day and at the time fixed by the notice referred to in paragraph (1) of Rule 3 evidence in support of his application he must do so by affidavit; and he must serve a copy of that affidavit, together with the sealed copy of the notice referred to in paragraph (1) of Rule 3, on every defendant who has entered an appearance:

Provided that he may serve a copy of the affidavit on any defendant with the originating summons or at any time thereafter before service of the sealed copy of the notice referred to in paragraph (1) of Rule 3 and, if he does so, it shall not be necessary for him to serve a copy of the affidavit with the sealed copy of that notice.

HEARING OF THE APPLICATION

5. (1) At the first hearing of the application the Court may, if the application is not opposed or all the defendants who have entered an appearance are ready to proceed with the hearing, hear and determine it; otherwise, it shall adjourn the hearing to a later date or time and give such directions as to the future conduct of the proceedings as it thinks best adapted to secure the just, expeditious and economical disposal of them.

(2) Without prejudice to the generality of the preceding paragraph, the Court shall, at as early a stage of the proceedings on the originating summons as appears to it to be practicable, consider whether there is or may be a dispute as to fact and whether the just, expeditious and economical disposal of the proceedings can accordingly best be secured by hearing the application on oral evidence or mainly on oral evidence and, if it thinks fit, may order that no further evidence shall be filed and that the application shall be heard on oral evidence or partly on oral evidence, with or without cross-examination of any of the deponents, as it thinks fit.

(3) Without prejudice to the generality of the last preceding paragraph, the Court may give directions as to the filing of evidence and as to the attendance of deponents for cross-examination.

ADJOURNMENT OF HEARING

6. (1) The hearing of the application by the Court may, if necessary, be adjourned from time to time either generally or to a particular date, as may be appropriate, and the powers of the Court under Rule 5 may be exercised at any resumed hearing.

(2) Where the hearing of the application is adjourned generally, any party may restore it to the list on giving two days' notice, or such longer notice as the Court may fix, to all the other parties, other than any defendants who have not entered an appearance.

SETTING ASIDE OF ORDER

7. Where any defendant -

(a) does not enter an appearance; or

(b) having entered an appearance, does not attend at the first or any subsequent hearing of the application,

and the Court is satisfied that his failure to do so was not due to his own neglect and that the interests o f justice require that the order be set aside, it may, upon the application of that defendant, set the order aside.

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SECOND SCHEDULE

(Rule 5)
NEW FORMS NOS. 55 AND 56

FORM NO. CIV/55

REPUBLIC OF NAURU
CIVIL PROCEDURE ACT 1972

RULES OF COURT
(O. 64 r. 2)

ORIGINATING SUMMONS

Between

A. B.

Plaintiff

and

C. D.

Defendant

To C.D. of (a)

By this summons the plaintiff seeks that this Court should make the following order(s)

(Set out the order(s) sought)

If you wish to be heard by the Court on the Plaintiffs application you are required, within (b) days after service of this summons on you, to enter an appearance to this summons by lodging at the office of the Court at the Court House at Yaren a properly completed memorandum of appearance in Form No. CIV/7. The memorandum may be lodged by personal delivery or be sent by post. It may be sent or delivered by you or by a barrister and solicitor or pleader on your behalf. It must be accompanied by a copy of that memorandum; that copy will be stamped and returned to you.

PLEASE NOTE THAT IF NO APPEARANCE IS ENTERED BY YOU WITHIN THE TIME ALLOWED, I.E. (b) DAYS, THE PLAINTIFFS APPLICATION WILL BE HEARD AND DECIDED WITHOUT ANY FURTHER NOTICE TO YOU.

This summons was taken out by the Plaintiff*/E. F., barrister and solicitor*/pleader for the plaintiff. The plaintiffs address for service in this suit is (c)

(a) address of defendant

(b) 14; unless the summons is to be served out of Nauru; in that event, the number of days directed under Order 9 Rule 3(3).

(c) address within Nauru

*delete whichever is not applicable.

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FORM NO. CIV/56

REPUBLIC OF NAURU

CIVIL PROCEDURE ACT 1972

RULES OF COURT
(O. 64, r. 3(1))

NOTICE OF APPOINTMENT TO HEAR APPLICATION MADE BY ORIGINATING SUMMONS

(Heading as in summons)

To C. D.

You are hereby notified that the application made by the originating summons issued in this suit on the ....................day of .............., 19...., will be heard by the Judge at the Court House at Yaren on ..............., the .............. day of .............., 19..., at ......... a.m*/p.m. You may attend in person or by your barrister and solicitor or pleader. If you fail to attend, such order may be made as the Court may think just and expedient.

Dated ................ day of ................, 19...

Registrar, Supreme Court.

PRACTICE DIRECTION

Service of writs of summons, etc., out of Nauru

Where a writ of summons, a notice of a writ or an originating summons has been served outside Nauru, the writs notice or summons, when returned to the Court, endorsed with the particulars of service, should be accompanied by an affidavit sworn by the legal practitioner who served it that he knows personally the person served or that he ascertained his identity, and in the latter case, how he ascertained it, and by a certificate as to the professional standing of the legal practitioner under the hand of a person authorised by the body regulating the conduct of members of the legal profession in the country concerned to give such certificates.

Dated 6th day of July, 1979.

I. R. Thompson
Chief Justice

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