ORDER 61.

 

PROCEDURE FOR PREROGATIVE WRITS.

 

Division 1. - Mandamus, Prohibition and Certiorari.

 

Abolition of order nisi, rule nisi and summons to show cause.
Source R.S.C. O.59, r.2.

 

1. No order nisi, rule nisi or summons to show cause shall be made, granted or issued in any proceeding. to which this Order relates.

 

Application for mandamus etc., not to be made without leave.
R.S.C. O.59, r.3.

 

2. (1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this Rule.

 

(2) An application for such leave as aforesaid shall be made ex parte to the Court, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. The Court may, in granting leave, impose such terms as to costs and as to giving security as it thinks fit.

 

(3) The applicant shall give notice of the application for leave not later than the preceding day to the Registry and shall at the same time lodge in the said Registry copies of the statement and affidavits.

 

(4) The grant of leave under this Rule to apply for an order of prohibition or an order of certiorari, shall, if the Court so directs, operate as a stay of the proceedings in question until the determination of the application, or until the Court otherwise orders.

 

Time for applying for mandamus and certiorari in certain cases.
R.S.C. O.59, r.4, (2).

 

3. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any written law; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

 

Application to be by notice of motion or summons.
R.S.C. O.59, r.5.

 

4. (1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made by notice of motion, and there shall, unless the Court granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion or summons and the day named therein for the hearing.

 

(2) The notice or summons shall be served on all persons directly affected, and where it relates to any proceedings in or before a Court, and the object is either to compel the Court or an officer thereof to do any act in relation to the proceedings or to quash them or any order made therein, the notice of motion or summons shall be served on the clerk or Registrar of the Court and the other parties to the proceedings, and where any objection to the conduct of the Judge is to be made, on the Judge.

 

(3) An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion or summons shall be filed before the notice or summons is put in the list for hearing, and, if any person who ought to be served under the provisions of the last preceding paragraph has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall lie before the Court on the hearing of the motion or summons.

 

(4) If on the hearing of the motion or summons the Court is of opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this Rule, the Court may adjourn the hearing, in order that the notice or summons may be served on that person, upon such terms (if any) as the Court may direct.

 

Statements and affidavits.
R.S.C. O.59, r.6.

 

5. (1) Copies of the statement accompanying the application for leave shall be served with the notice of motion or summons, and copies of any affidavits accompanying the application for leave shall be supplied on demand and on payment of the proper charges, and no grounds shall, subject as hereafter in this Rule provided, be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out in the said statement.

 

(2) The Court may on the hearing of the motion or summons allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand and upon payment of the proper charges copies of any such further affidavits.

 

(3) Every party to the proceedings shall supply to any other party, on demand and on payment of the proper charges, copies of the affidavits which he proposes to use at the hearing.

 

Right to be heard in opposition.
R.S.C. O.59, r.7.

 

6. On the hearing of any such motion or summons as aforesaid, any person who desires to be heard in opposition to the motion or summons and appears to the Court to be a proper person to be heard shall be heard, notwithstanding that he has not been served with the notice or summons, and shall be liable to costs in the discretion of the Court if the order should be made.

 

Provisions of certiorari as to orders for the purpose of quashing proceedings.
R.S.C. O.59, r.8.

 

7. (1) In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion or summons he has lodged a copy thereof verified by affidavit in the Registry, or accounts for his failure to do so to the satisfaction of the Court hearing the motion or summons.

 

(2) Where an order of certiorari is made in any such case as aforesaid, the order shall direct that the proceedings shall he quashed forthwith on their removal into the Court.

 

Saving for persons acting in obedience to mandamus.
R.S.C. O.59, r.9.

 

8. No action or proceeding shall be commenced or prosecuted against any person in respect of anything done in obedience to an order of mandamus.

 

Division 2. - Habeas Corpus.

 

Applications for habeas corpus ad subjiciendum.
R.S.C. O.59, r.14,

 

9. An application for a writ of habeas corpus ad subjiciendum shall be made to a Judge in Court, except that in cases where the application is made on behalf of a child, it shall be made in the first instance to a Judge sitting otherwise than in Court.

 

Applications to be ex parte in first instance and on affidavit.
R.S.C. O.59, r.15.

 

10. The application may be ex parte and shall be accompanied by an affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint:

 

Provided that where the person restrained is unable owing to the restraint to make the affidavit the application shall be accompanied by an affidavit to the like effect made by some other person which shall state that the person restrained is unable to make the affidavit himself.

 

Power to order immediate issue of writ or to direct a summons or notice of motion.
R.S.C. O.59, r.16.

 

11. The Judge to whom the application is made may make an order forthwith for the writ to issue, or may-

 

(a) in a case where the application is made to a Judge sitting otherwise than in Court, direct that a summons for the writ be issued, or that an application therefor be made by notice of motion to a Judge in Court;

 

(b) in a case where the application is made to a Judge in Court, adjourn the application so that notice thereof may be given, or direct that an application be made by notice of motion.

 

Service of summons or notice.
R.S.C. O.59, r.17.

 

12. The summons or notice of motion aforesaid shall be served on the person against whom the issue of the writ is sought and on such other persons as the Judge may direct, and, unless the Judge otherwise directs, there shall be at least eight clear days between the service of the summons or notice and the date named therein for the hearing of the application.

 

Copies of affidavits.
R.S.C. O.59, r.18.

 

13. Every party to the application shall supply on demand and on payment of the proper charges copies of the affidavits which he proposes to use at the hearing of the application.

 

Power to order discharge of person restrained.
R.S.C. O.59, r.19.

 

14. On the hearing of the application the Judge may, in his discretion, order that the person restrained be released, and the order shall be a sufficient warrant to any gaoler, constable or other person for the release of the person under restraint.

 

Directions as to Court where writ is returnable.
R.S.C. O.59, r.20.

 

15. Where the writ is ordered to issue, the Judge by whom the order is made shall give directions as to the Judge before whom the writ is returnable, and every such writ shall be returnable, immediately.

 

Service of writ and notice.
R.S.C. O.59, r.21.

 

16. (1) The writ shall be served personally, if possible, upon the person to whom it is directed; or if not possible, or if the writ be directed to a gaoler or other public official, by leaving it with a servant or agent of the person to whom the writ is directed at the place where the prisoner is confined or restrained; and if the writ is directed to more than one person, the original shall be served as aforesaid on the principal person, and copies shall be served on each of the other persons in the same manner as the writ.

 

(2) There shall be served or left with the writ a notice stating the Judge before whom and the date on which the person restrained is to be brought, and that in default of obedience proceedings for attachment of the party disobeying will be taken.

 

Return of the writ.
R.S.C. O.59, r.22.

 

17. The return to the writ shall contain a copy of all the causes of the prisoner's detainer endorsed on or annexed to the writ, and the return may be amended, or another return substituted therefor, by leave of the Judge to whom the writ is returnable.

 

Procedure at hearing.
R.S.C. O.59, r.23.

 

18. When a return to the writ is made, the return shall first be read, and motion then made for discharging or remanding the prisoner or amending or quashing the return, and where the prisoner is brought up in accordance with the writ, his advocate shall be heard first, then the advocate for the Crown, and then one advocate for the prisoner in reply.

 

Other writs of habeas corpus.
R.S.C. O.59, r.24.

 

19. Applications for writs of habeas corpus ad testificandum or of habeas corpus ad respondendum shall be made on affidavit to a Judge in Chambers.

 

Order in lieu of habeas corpus for witness.
R.S.C. O.59, r.25.

 

20. An application for an order to bring up a prisoner, otherwise than by habeas corpus, to give evidence in any cause or matter, civil or criminal, before any court, justice or other judicature, shall be made on affidavit to a Judge in Chambers.

 

Division 3. - Attachment for Contempt.

 

Procedure for attachment similar to procedure for mandamus.
R.S.C. O.59, r.26.

 

21. (1) The procedure in applications for attachment for contempt of court in the cases to which this Rule applies shall be the same as in applications for an order of mandamus and Rules 2, 4, 5 and 6 of this Order shall apply accordingly to applications for attachment, so far as they are applicable:

 

Provided that the issue of the writ of attachment shall not be ordered by a Judge in Chambers, and the notice of motion shall be personally served unless the Court dispenses with such service.

 

(2) This Rule applies to cases where the contempt is committed-

 

(a) in connection with proceedings to which this Order relates;

 

(b) in connection with any proceedings in Court, except where the contempt is committed in facie curiae or consists of disobedience to an order of the Court;

 

(c) in connection with proceedings in an inferior court.

 

Return of writ of attachment.

R.S.C. O.59, r.27.

 

22. Every writ of attachment issued in a case to which Rule 21 of this Order applies shall be made returnable before the Court from which it issues. If a return of non est inventus is made, one or more writs may be issued on the return of the previous writ.

 

Abolition of interrogatories.
R.S.C. O.59, r.29.

 

23. The defendant in proceedings for attachment shall not be put to answer interrogatories.

 

Service of document.
R.S.C. O.59, 9, r.40.

 

24. Any document required by these Rules to be served on any person, not being a document required to be personally served, shall be deemed to be sufficiently served if it is left at the last known place of abode or business of that person or if it is served in such other manner as the Court may direct.

 

Trial of issues.
R.S.C. O.59, r.41.

 

25. On the hearing of any motion or summons to which this order relates, the Court may direct any issue of fact in dispute to be tried in the same manner as other issues of fact are tried.

 

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