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Newfoundland Regulation 1999


NEWFOUNDLAND REGULATION 2/99

NEWFOUNDLAND REGULATION 2/99

Provincial Court Family Rules
under the
Provincial Court Act, 1991
(O.C. 98-055)

(Filed January 12, 1999 )

Under the authority of section 29.1 of the Provincial Court Act, 1991, the Lieutenant-Governor in Council makes the following rules.

Dated at St. Johnís, January 12, 1999.

John R. Cummings, Q.C.
Deputy Clerk of the Executive Council

RULES

Analysis


††††††† 1.†† Citation, application and interpretation

††††††† 2.†† Effect of Non-compliance

††††††† 3.†† Time

††††††† 4.†† Forms

††††††† 5.†† Parties

††††††† 6.†† Commencement of proceedings

††††††† 7.†† Service

††††††† 8.†† Amendment

††††††† 9.†† Reply

††††† 10.†† Admissions and expert witnesses

††††† 11.†† Pre-hearing and settlement conferences

††††† 12.†† Hearing procedures

††††† 13.†† Affidavits

††††† 14.†† Discontinuance and withdrawal

††††† 15.†† Orders

††††† 16.†† Transfer and consolidation of a proceeding and exercise of jurisdiction by another judge

††††† 17.†† Practice memoranda

††††† 18.†† Applications without notice


RULE 1

CITATION, APPLICATION AND
INTERPRETATION

Citation

†† 1.01 These rules may be cited as the Provincial Court Family Rules.

Application

†† 1.02 (1) These rules govern all proceedings in the Provincial Court, for the province under the

†††††††††††† (a)Adoption of Children Act;

†††††††††††† (b)Change of Name Act;

†††††††††††† (c)Child Welfare Act;

†††††††††††† (d)Childrenís Law Act;

†††††††††††† (e)Family Law Act;

††††††††††††† (f)Neglected Adults Welfare Act;

†††††††††††† (g)Reciprocal Enforcement of Support Orders Act;

†††††††††††† (h)Solemnization of Marriage Act; and

††††††††††††† (i)Support Orders Enforcement Act.

†††††††††††† (2)In a proceeding commenced in the Provincial Court before the commencement and effect of these rules, the proceeding shall be continued in accordance with these rules except where the rules cannot be adapted.

†††††††††††† (3)Notwithstanding subsection (1), these rules shall not apply to a proceeding where they are, or appear to be, contradictory to an Act under which an application is before the court.

Objective of rules

†† 1.03 The objective of these rules is to secure the just, equitable, accessible and expedient determination of every proceeding.

Application of Interpretation Act and Rules of the Supreme Court, 1986

†† 1.04 (1) The Interpretation Act applies to these rules.

†††††††††††† (2) The Rules of the Supreme Court, 1986 apply at the discretion of the court when no provision under these rules is made.

Definitions

†† 1.05 In these rules, unless the context otherwise requires,

†††††††††††† (a)"affidavit" includes a solemn or statutory declaration and an agreed statement of facts;

†††††††††††† (b) "applicant" means a person who makes an application under these rules;

†††††††††††† (c) "application" means an application for a hearing and a proceeding;

†††††††††††† (d) "counsel" means a person who is entitled to appear and represent a party in the Provincial Court under the Law Society Act or the Family Law Act;

†††††††††††† (e) "court" means the Provincial Court of Newfoundland or a judge of the Provincial Court whether sitting in court or in chambers;

††††††††††††† (f) "clerk" means a clerk as defined under the Provincial Court Act, 1991;

†††††††††††† (g)"document" includes a sound recording, photograph, film, plan, chart, computer disc, graph, report, or record of any kind, or a certified copy;

†††††††††††† (h) "hearing" means the hearing of an application or a trial;

††††††††††††† (i) "person under disability" means a person who is a minor or a mentally incompetent person;

††††††††††††† (j) "order" means an order or other decision or judgment of the court;

†††††††††††† (k) "party" means a person named in an application under these rules or by leave of the court;

††††††††††††† (l) "respondent" means a person from whom relief is sought; and

††††††††††† (m) "rule" or "rules" means the Provincial Court Family Rules.

Waiver of rule by agreement

†† 1.06 Subject to approval of the court, the parties may agree to waive a rule.

RULE 2

EFFECT OF NON-COMPLIANCE

Non-compliance with rules

†† 2.01 (1) A failure to comply with a requirement of these rules shall be treated as an irregularity and shall not nullify the proceeding, a step taken in the proceeding or a document or order, unless the court orders.

†††††††††††† (2)An application to set aside a proceeding for an irregularity shall not be allowed unless it is made within a reasonable time and before the party who commenced the proceeding has remedied the irregularity after becoming aware of it.

RULE 3

TIME

Computation of time

†† 3.01 The computation of time under these rules, or an order of the court, is governed by the following provisions:

†††††††††††† (a)where there is a reference in these rules to a number of days, or clear days or "at least" a number of days between 2 events, in calculating the number of days there shall be excluded Saturdays, Sundays, statutory holidays and the days on which the events happen;

†††††††††††† (b)where a time is expressed to begin or end at, on, or with a specified day, or to continue to or until a specified day, the time includes that day;

†††††††††††† (c)where a time is expressed to begin after, to be from, of, or before a specified day, the time does not include that day; and

†††††††††††† (d)where there is a reference to a period of time consisting of a number of months before or after a specified day, the number of months shall be counted from the specified day.

Extension, etc. of time

†† 3.02 (1) The court may, on terms that it considers appropriate, extend or abridge the period within which a person is required or authorized by these rules, or by an order, to do or abstain from doing an act in a proceeding.

†††††††††††† (2)The extension or abridgement of the period shall not be granted where the extension or abridgement is used to unnecessarily delay or otherwise interfere with the proceedings.

†††††††††††† (3)The period within which a person is required by these rules or an order to serve, file or amend any pleadings or other document may be extended with the consent of the parties.

RULE 4

FORMS

Forms

†† 4.01 The forms as prescribed by practice memorandum shall be used where applicable with variations as the circumstances of the particular proceeding require and with the approval of the court.

RULE 5

PARTIES

More than one party

†† 5.01 Two or more parties, with leave of the court, may be joined in one proceeding as either applicants or respondents.

Order separate trials

†† 5.02 Notwithstanding rule 5.01, where parties are joined in a proceeding and it may cause embarrassment or delay the hearing, or the proceeding ought to be disposed of by a separate hearing, or it is otherwise inconvenient, the court may order separate hearings.

Change of parties

†† 5.03 (1) The court may at any stage of a proceeding, on an application without notice or its own motion, where it considers it necessary in order to ensure that all matters in the proceeding may be heard, order a person to be made a party to the proceeding in addition to or in substitution for the party and the proceeding to be continued upon other terms and conditions as if the person who is made a party, was a party to the original application.

†††††††††††† (2)A person made a party under this rule may within 10 days after service of the order apply to the court to have the order rescinded or varied.

Permitted representatives

†† 5.04 A party may be represented in a proceeding

†††††††††††† (a)by a person authorized in the Law Society Act;

†††††††††††† (b)by a person authorized by the legislation under which the application is made; or

†††††††††††† (c)with the permission of the court, by another person who is not receiving remuneration for appearing.

Guardian for the action

†† 5.05 (1) A person under disability shall commence or defend a proceeding by a guardian for the action unless the court otherwise orders.

†††††††††††† (2)Unless a rule otherwise provides, anything in a proceeding that is required or authorized by the rules to be done by a party shall or may, where the party is a person under disability, be done on the personís behalf by the guardian for the action.

Appointment of guardian for the action

†† 5.06 (1) Unless the court otherwise orders or legislation otherwise provides, a person may be a guardian for the action of a person under disability without being appointed by the court.

†††††††††††† (2)Where a party has a guardian for the action in a proceeding, another person shall not, unless the court otherwise orders, act as the guardian for the action.

†††††††††††† (3)When in the opinion of the court it is in the interest of a party who is a person under disability to do so, the court may remove, appoint, or substitute a guardian for the action.

†††††††††††† (4)Before the name of a person is used in a proceeding as the guardian for the action, there shall be filed with the court

†††††††††††† (a)a personís written consent to be the guardian for the action; or

†††††††††††† (b)where the person has been appointed a guardian for the action by a court, a true copy of the order appointing him or her.

†††††††††††† (5)Except where a guardian for the action has been appointed under legislation, the guardian for the action acting in a proceeding shall file with the court a certificate certifying that he or she knows or believes

†††††††††††† (a)the person to whom the certificate relates is a person under disability, giving the grounds of the knowledge or belief, and where a mentally incompetent person, that a guardian has not been appointed under any legislation; and

†††††††††††† (b)the guardian for the action has no interest in the proceeding adverse to that person.

Settlement, etc. by person under disability

†† 5.07 Where in any proceeding money is claimed by or on behalf of a person under disability, no settlement, compromise, payment or acceptance or money, whenever entered into or made, shall be valid without the approval of the court as far as it relates to that personís claim.

Control of money recovered

†† 5.08 Where an order is granted providing for the recovery of money by a person under disability, or that a proceeding be dismissed or stayed upon payment of the money to that person, the money shall be dealt with in accordance with the order.

Third person as party

†† 5.09 A person may, with leave of the court and subject to legislation respecting confidentiality, intervene in a proceeding and become a party where a person

†††††††††††† (a)establishes to the satisfaction of the court by the filing of an affidavit containing the grounds for the intervention, a direct interest in the subject matter of the proceeding; or

†††††††††††† (b)has a right to intervene under legislation or rule.

Friend of the court

†† 5.10 A person may, with the leave of the court and without becoming a party to a proceeding, intervene in the proceeding as a friend of the court for the purpose of assisting the court.

RULE 6

COMMENCEMENT OF PROCEEDINGS

Commencement of proceedings

†† 6.01 Every proceeding shall be commenced by filing an application and supporting affidavit with the court, and the proceeding is considered to have been commenced on the date of the filing.

Duties of the clerk

†† 6.02 (1) Upon receipt of an application, the clerk shall

†††††††††††† (a)insert on the application a file number and date of filing;

†††††††††††† (b)sign the application;

†††††††††††† (c)affix the place, time and date of the hearing; and

†††††††††††† (d)file the original with the court.

†††††††††††† (2)The file number assigned to a proceeding shall consist of

†††††††††††† (a)the letter "F" for a proceeding in the Family Court;

†††††††††††† (b)a number designating the office where the proceeding is commenced

01 St. Johnís
04
Placentia
05 Harbour Grace
06 Clarenville
08 Grand Bank
09
Gander

10 Grand Falls-Windsor
11 Springdale
13 Corner Brook
14 Stephenville
16 Wabush
17 Happy Valley-Goose Bay; and

†††††††††††† (c)the consecutive number of the proceeding in order of filing in that office.

†††††††††††† (3)All documents subsequently filed or delivered in the proceeding shall bear the same file number.

†††††††††††† (4)A proceeding permanently transferred to another office of the court shall be assigned an appropriate file number.

Facsimile transmissions

†† 6.03 (1) A document may be filed with the court by telephone facsimile transmission as provided in this rule.

†††††††††††† (2)A document may be served by a party on counsel of record in accordance with subsection (3).

†††††††††††† (3)A document which is delivered by a telephone facsimile transmission shall include a cover page indicating

†††††††††††† (a)the senderís name, address and telephone facsimile number;

†††††††††††† (b)the date and time of transmission;

†††††††††††† (c)the names of the parties in the proceeding and the file number, where one has been assigned;

†††††††††††† (d)the total number of pages transmitted, including the cover page;

†††††††††††† (e)the telephone facsimile number from which the document is transmitted; and

††††††††††††† (f)the name and telephone number of a person to contact in the event of transmission problems.

†††††††††††† (4)Filing shall be considered complete at the time the telephone facsimile transmission is received by the court and the filed facsimile shall have the same effect as the original.

†††††††††††† (5)Notwithstanding subsection (4), documents filed by telephone facsimile transmission shall only be received on weekdays, excluding holidays, between 9 a.m. and 4 p.m.

†††††††††††† (6)Within 7 days after the court has received the transmission, the person filing the document shall deliver the original signed document to the court.

†††††††††††† (7)The original document shall be clearly marked on its face "Sent by telephone facsimile transmission", giving the date and the time of the transmission.

†††††††††††† (8)Upon failure to comply with the requirements of this rule, the court may make orders that are appropriate, including, but not limited to, an order striking pleadings or parts of pleadings, an order removing the facsimile document from the file, staying further proceedings until compliance is complete, or dismissing the proceeding or any part of the proceeding.

†††††††††††† (9)Notwithstanding rule 15.04, any certified document sent by the court by telephone facsimile transmission in accordance with subsection (3) shall be considered to be a certified original document.

†††††††††† (10)The transmitted document may be further certified at the local office of the court by its proper officer.

RULE 7

SERVICE

Service of documents

†††††††††††† 7.01(1) Except where these rules or legislation otherwise provides, the following documents shall be personally served on each respondent:

†††††††††††† (a)an application; and

†††††††††††† (b)other documents that the court may require to be personally served.

†††††††††††† (2)Service of a true copy of a document shall be considered service of the original document.

†††††††††††† (3)A person who serves the document shall, at the time of service, request the person served to complete and sign in his or her presence the acknowledgement of service or the person who serves the document shall sign an affidavit confirming the service of the document and the affidavit shall be sworn or affirmed.

†††††††††††† (4)An application shall be served on the respondent as required by these rules at least 10 days before the date set for the hearing except where legislation otherwise provides.

Support application under the Family Law Act

†† 7.02 (1) Personal service of an application for support made under the Family Law Act shall not be required unless ordered by the court.

†††††††††††† (2)An application for support may be served,

†††††††††††† (a)by sending a true copy of the document by certified mail addressed to the respondent at his or her last known address; or

†††††††††††† (b)in another manner that the court may direct.

†††††††††††† (3)An application for support shall be served on the respondent as required by these rules at least 10 days before the date set for the hearing.

Substituted service

†† 7.03 (1) Where it is impracticable to serve an application or other document required to be served personally, the court may make an order for substituted service or dispense with service of the document upon terms that the court may determine.

†††††††††††† (2)Substituted service may be effected by

†††††††††††† (a)serving the agent, counsel, other representative or an adult family member of the person to be served;

†††††††††††† (b)serving the guardian or guardian for the action where the person to be served is under disability;

†††††††††††† (c)certified mail forwarded to the last known address of the person to be served; or

†††††††††††† (d)where an address of the person to be served is unknown, by advertisement in the newspaper serving the area where the person to be served is believed to reside.

Affidavit of service

†† 7.04 (1) The service of a document may be proved by an affidavit which shall state by whom the document was served, the day of the week, the time of day, the date on which it was served, where it was served, and how it was served.

†††††††††††† (2)Where

†††††††††††† (a)the document is served by certified mail, service may be proved by filing an acknowledgement of receipt card, or other confirmation of delivery as is provided by Canada Post, with the court before the date of the proceeding;

†††††††††††† (b)the acknowledgement of receipt card is not signed by the party being served, the court shall satisfy itself that the party to be served has knowledge of the proceedings and may proceed in the absence of that party;

†††††††††††† (c)certified mail has not been accepted by the respondent or another person on his or her behalf, the court may proceed to hear the matter in the same manner as if that party was served; or

†††††††††††† (d)in the event that the court proceeds under (b) or (c) and it has subsequently been established to the satisfaction of the court that the service was not properly effected, the court may make the order that is necessary to correct any injustice done as a result of proceeding in the absence of the party required to be served.

†††††††††††† (3)A written acceptance of service of a document by a party need not be verified by affidavit.

†††††††††††† (4)Instead of requiring any other proof of service, the court may allow a person to prove by sworn or affirmed oral evidence that a person has been served.

No service in certain cases

†† 7.05 Where under a rule a document is required to be served on a person but is not required to be served personally and at the time when service is to be effected, the person is in default as to filing a response or appearing on an application or has no address for service, the document need not be served on that person unless the court otherwise orders or a rule otherwise provides.

RULE 8

AMENDMENT

Amendment by party

†† 8.01 A party may amend any document filed by that party, other than an order,

†††††††††††† (a)once without leave of the court where the amendment is made at least 5 days before the hearing of an application;

†††††††††††† (b)at another time where the written consent of all the parties is filed; or

†††††††††††† (c)with the leave of the court.

Court may grant amendment

†† 8.02 (1) The court may grant an amendment under this rule, in a manner and on terms that it considers appropriate.

†††††††††††† (2)Where an amendment would make a document difficult, inconvenient to read or alter the substance of the document, a new document as amended and bearing the date of the original document shall be filed and every reasonable effort should be made to serve and provide the amended document to the other party before the date of hearing.

†††††††††††† (3)Clerical mistakes in pleadings, judgments or orders, or errors arising from an accidental mistake or omission, or an amendment to provide for a matter which should have but was not adjudicated upon, may be corrected or granted by the court.

RULE 9

REPLY

Reply

†† 9.01 Unless the court otherwise orders, a respondent shall file a reply to an application with the court before the hearing.

Time period for reply

†† 9.02 A reply shall be filed with the court at least 2 days before the date set by the court except where the court permits otherwise.

True copy required

†† 9.03 A respondent shall serve a true copy of the reply on the applicant by delivering it or by posting it by mail.

RULE 10

ADMISSIONS AND EXPERT WITNESSES

Voluntary admissions

10.01 (1) A party may give notice at the hearing or otherwise in writing that he or she admits the truth of the whole or a part of the case of another party.

†††††††††††† (2)The court may allow a party to withdraw an admission or denial upon terms that are appropriate.

Expert witnesses

10.02 (1) Unless a written report of an expert is provided to the opposite party at least 5 days before the hearing, that report shall not be admissible without the approval of the court.

†††††††††††† (2)The court may order that the number of expert witnesses to be called at a hearing shall be limited.

RULE 11

PRE-HEARING AND SETTLEMENT
CONFERENCES

Use of electronic telecommunication

11.01 A judge may, on his or her own motion, or on the application of a party, direct that a pre-hearing or settlement conference be held wholly or partly by telephone, teleconference, video conference or another form of electronic telecommunication acceptable to the judge, with the actual costs to be paid by the party making the request.

Pre-hearing conference procedure

11.02 (1) In a proceeding the court may, on its own motion or on the application of a party, direct the party to appear for a pre-hearing conference to consider

†††††††††††† (a)the simplification and clarification of the issues;

†††††††††††† (b)the necessity or desirability of an amendment to an application, affidavit or notice;

†††††††††††† (c)the possibility of obtaining admissions of fact or of documents that shall avoid unnecessary proof;

†††††††††††† (d)limiting the number of expert witnesses;

†††††††††††† (e)resolving one or more of the issues which may lead to a settlement;

††††††††††††† (f)organizing the trial process including the production of documents, affidavits, exhibits and determining the witnesses who are to testify;

†††††††††††† (g)provide interim relief when agreement is reached or when proper notice has been given and affidavit evidence is filed; and

†††††††††††† (h)any other issue that may aid in the disposition of the proceeding.

†††††††††††† (2)Following the pre-hearing conference the court may make an order reciting the results and giving directions that the court considers advisable and the order, when entered, shall control the subsequent course of the proceeding, unless or until modified at the hearing to prevent injustice.

†††††††††††† (3)The judge who presides at a pre-hearing conference shall not be considered to be seized of the proceeding, and a hearing may be heard by that judge or any other judge provided that at the request of a party, the hearing shall be heard by a judge other than the judge presiding at the pre-hearing conference.

Settlement conference procedure

11.03 (1) Where the parties have been directed to attend a settlement conference, the judge may conduct the settlement conference in any manner he or she sees appropriate including requiring the attendance of the parties, and the production of all relevant documentation and legal authorities.

†††††††††††† (2)A judge who has presided at a settlement conference shall not preside at the hearing unless all parties consent.

†††††††††††† (3)A judge who has presided at a settlement conference shall not disclose to any other judge the positions and concessions made by any of the parties during the settlement conference.

RULE 12

HEARING PROCEDURES

Failure to attend

12.01 (1) When a proceeding is called for hearing, the court may order the proceeding to be dismissed where parties fail to attend.

†††††††††††† (2)When a proceeding is called for hearing and a party fails to appear, the court may

†††††††††††† (a)proceed with the hearing or an issue in the absence of one or more parties;

†††††††††††† (b)where the applicant appears and the respondent fails to appear, allow the applicant to prove the application and dismiss a reply;

†††††††††††† (c)where the applicant fails to appear and the respondent appears, dismiss the application and allow the respondent to prove the reply; or

†††††††††††† (d)make an order that is appropriate.

†††††††††††† (3)Where a party fails to attend, the court may order costs that it considers appropriate.

†††††††††††† (4)Judgment on a failure to appear shall not be entered against a respondent under this rule unless the court is satisfied the respondent had notice of the hearing or had been served as directed by these rules or service has been dispensed with under these rules.

†††††††††††† (5)Unless the court otherwise orders or a rule otherwise provides, a respondent who fails to appear at the hearing of an application shall not be entitled to receive notice of subsequent steps taken in the proceeding against him or her.

†††††††††††† (6)The parties shall immediately notify the court before the hearing of a settlement or agreement reached between the parties.

Adjournment

12.02 Where a hearing cannot be conveniently heard or completed, the court may adjourn the hearing.

Exclusion of witnesses, etc.

12.04 The court at a hearing may

†††††††††††† (a)order a witness to be excluded from the court until called;

†††††††††††† (b)order a party or witness not to communicate with another witness before the latter witness gives evidence; and

†††††††††††† (c)where there has been an improper communication, exclude the testimony of any party or witness.

Copies of document for other party

12.05 A party shall be entitled to a copy of relevant documents and affidavits to be used in a hearing.

Order for documents

12.06 (1) The court may

†††††††††††† (a)order a party to file and serve on an opposing party to a proceeding a list of documents or affidavits;

†††††††††††† (b)order a party to file or deliver documents or affidavits related to the matters specified in the order;

†††††††††††† (c)where it appears that an issue or question in the proceeding should be determined before the filing and delivery of all or any of the documents is made, order that the issue or question be determined; and

†††††††††††† (d)where satisfied that all or any of the documents are not necessary at that time or later, dismiss or adjourn the application, or make another order that is appropriate.

†††††††††††† (2)Where a person is compelled to produce a document at a hearing, the court may order the person to produce the document.

Interpreters

12.07 The court may appoint an interpreter, fix reasonable compensation and order the compensation to be paid out of funds provided by law for that purpose or by one or more of the parties as costs.

Subpoena

12.08 (1) The court or a justice of the peace may, at the request of a party, issue a subpoena requiring the person named in the subpoena to attend the court at the time and place stated and, where required, to produce certain documents at the hearing.

†††††††††††† (2)A person is bound to appear or give evidence under a subpoena notwithstanding that the person has not been paid or tendered witness fees.

Service of subpoena

†† 12.9 (1) A copy of the subpoena shall be served by personal service and where the witness requests the original subpoena shall be produced and shown.

†††††††††††† (2)Unless otherwise ordered, a subpoena shall be served no later than 2 days before the date of the hearing.

†††††††††††† (3)Service of a subpoena may be proved by affidavit.

Duration of subpoena

12.10 A subpoena continues to have effect until the conclusion of the hearing at which the attendance of the witness is required.

Subpoena of opposing party

12.11 A party who desires to call an opposing party as a witness at a hearing shall serve the party, or his or her counsel at least 2 days before the hearing with a subpoena and where the opposing party does not attend the hearing, the court may pronounce judgment against the party or postpone the hearing upon terms that it considers appropriate.

Failure to obey

12.12 Where a witness fails to obey a subpoena, he or she may be dealt with according to law.

RULE 13

AFFIDAVITS

Form of affidavits

13.01 An affidavit used in a proceeding shall be

†††††††††††† (a)entitled with the name of the parties involved in the proceeding, except where there is more than one applicant or respondent or proceeding when it shall be sufficient to state the name of the first applicant, respondent and proceeding followed by the words "and other" or "and other proceedings";

†††††††††††† (b)expressed in the first person and state the name in full, place of residence and occupation of the deponent, and where a party or the counsel, agent or employee of a party, it shall state that fact;

†††††††††††† (c)divided into paragraphs numbered consecutively with each paragraph being confined as far as possible to a distinct portion of the subject and any dates, sum, and other numbers may be expressed in figures; and

†††††††††††† (d)signed by the deponent with the jurat completed and signed by the person before whom it is sworn or affirmed.

Contents of affidavit

13.02 (1) An affidavit used on an application may contain statements as to the belief of the deponent with the sources and grounds.

†††††††††††† (2)Unless the court otherwise orders, an affidavit used at a hearing shall contain only those facts that the deponent is able to prove from his or her own knowledge.

Exhibits

13.03 An exhibit referred to in an affidavit as being produced, attached or otherwise annexed shall be identified with the initials of the person before whom the affidavit was sworn or affirmed.

RULE 14

DISCONTINUANCE AND WITHDRAWAL

Notice to be filed and served

14.01 After a proceeding is begun

†††††††††††† (a)an applicant may discontinue the proceeding or withdraw a cause of action against any respondent; and

†††††††††††† (b)a respondent may withdraw the reply or response or a part of the reply or response against any applicant,

by filing and serving a notice of discontinuance or withdrawal.

Court may make order

14.02 Upon the filing of a notice of discontinuance or withdrawal the court may make an order containing terms as to costs, the bringing of a subsequent proceeding, or otherwise, that are appropriate and within the jurisdiction of the court.

Effect of discontinuance

14.03 Subject to the terms of an order granted by the court, the discontinuance of a proceeding or withdrawal of a cause of action shall not be a bar to a subsequent proceeding for the same or substantially the same cause of action.

RULE 15

ORDERS

Requiring an act to be done

15.01 An order that requires a person to do or refrain from doing an act, shall specify the time within which the person is to do or refrain from doing the act.

Preparation of an order

15.02 An order shall be drawn by the successful party or by the court that the circumstances warrant and filed with the court provided that when an order is not filed within 10 days after the judgment, decision or direction is given, any other party may draft and file the order.

Issue of order

15.03 (1) An order shall contain

†††††††††††† (a)the title of the proceeding;

†††††††††††† (b)the name of the judge who granted it;

†††††††††††† (c)recitals of the proceedings and legislation on which it is based;

†††††††††††† (d)the operative parts of the order divided into convenient paragraphs;

†††††††††††† (e)the date the decision was rendered as well as the date the order is issued;

††††††††††††† (f)the name of the court;

†††††††††††† (g)the signature of the clerk or the judge who made the order; and

†††††††††††† (h)all other particulars required by the legislation under which the order was made.

†††††††††††† (2)An order shall be as prescribed in these rules with any variation that the circumstances require.

Certification of order

15.04 An order shall be certified by a court by signing a copy and certifying it as a true copy.

RULE 16

TRANSFER AND CONSOLIDATION OF A PROCEEDING AND EXERCISE OF
JURISDICTION BY ANOTHER JUDGE

Transfer of proceeding

16.01 The court may order a proceeding to be transferred to another court.

Consolidation

16.02 Where 2 or more proceedings are pending in the court, the court may order the proceedings to be consolidated on terms that it considers appropriate or may order them to be tried at the same time or one immediately after the other or may order any of them to be stayed until after the determination of any of them.

Exercise of jurisdiction

16.03 (1) Where a judge is unable to act in or conclude a proceeding, a judge of the court may be appointed to hear the proceeding or to continue the proceeding.

†††††††††††† (2)A judge appointed under subsection (1) may make an order to render a judgment in a proceeding on the evidence already adduced or may rehear evidence.

RULE 17

PRACTICE MEMORANDA

Practice memoranda

17.01 The chief judge after receiving a recommendation from a judge, a group of judges or the Rules Committee may issue practice memoranda consistent with these rules for the better operation of these rules and the functioning of the court.

RULE 18

APPLICATIONS WITHOUT NOTICE

Particulars of notice

18.01 A notice of an application without notice shall set out with sufficient particularity the nature of the claim being made and have attached a true copy of any affidavit to be used in support of the application.

Application without notice

18.02 (1) An application may be made without notice to another person where

†††††††††††† (a)under legislation or rule notice is not required;

†††††††††††† (b)the application is made before a party is served;

†††††††††††† (c)the applicant is the only party;

†††††††††††† (d)the application is made during the course of a proceeding or hearing; or

†††††††††††† (e)the court is satisfied that the delay caused by giving notice would or might entail serious mischief or prejudice, or that notice is not necessary.

†††††††††††† (2)A notice of application and any supporting affidavit shall be filed with the court before the hearing.

†††††††††††† (3)The court may, on those terms that it considers appropriate, order

†††††††††††† (a)a notice of application and an attached affidavit to be served upon a party or person in a manner and at a time that it may direct and may adjourn a hearing to permit the service;

†††††††††††† (b)the service of a notice of application and any attached affidavit on a party or person to be dispensed with; or

†††††††††††† (c)an application to be adjourned, continued, discontinued or dismissed when a person who ought to have been served has not been served.