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PART I

RULE 5
COMMENCEMENT
OF PROCEEDINGS

Analysis



Mode of commencing a proceeding

  5.01. (1) Subject to rules 5.01(2) and 5.05(2), every proceeding shall be commenced by issuing an originating application or statement of claim and an originating application or statement of claim shall be deemed to be issued when it is filed in accordance with rules 5.02 or 5.03.

             (2)  Notwithstanding anything to the contrary in this Rule, a proceeding to enter judgment pursuant to statute to enforce payment of a fine, late payment penalty, forfeiture, assessment or tax within Rule 5A shall be commenced and processed in accordance with the provisions of that Rule.

1986 c42 Sch D rule 5.01; 21/02 s1

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Commencing a proceeding (Application)

  5.02. (1) A proceeding

             (a)  in which the sole or principal question at issue is, or is likely to be a question of law, or one of construction of a statute, will, contract or other document;

             (b)  in which there is unlikely to be any substantial dispute of fact; or

             (c)  which may be commenced by application, motion, originating summons, petition or otherwise under a statute;

shall be commenced by filing with the Court, or with a commissioner of the Supreme Court for the issue of originating documents at the place where the commissioner resides, an originating application (inter partes) with notice attached in Form 5.02A and a true copy thereof in a proceeding between parties or an originating application (an ex parte) in Form 5.02B and a true copy thereof in an ex parte proceeding.

             (2)  Where the originating application is filed with a commissioner:

             (a)  the applicant shall state in the application the Judicial Centre or circuit, as the case may be, at which it is proposed that the application be heard; and

             (b)  the commissioner shall, before assigning a return date for the hearing of the application, obtain from the registry in the designated judicial centre or the registry responsible for the designated circuit, a suitable return date consistent with the docket of that centre or circuit and insert that date on the notice attached to the application.

1986 c42 Sch D rule 5.02; 139/04 s1; 36/14 s4

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Commencing any other proceeding

  5.03. Every other proceeding, which is not within the provisions of rule 5.02, shall be commenced by filing a statement of claim with the notice attached in Form 5.03A and a true copy thereof with the Court or with a commissioner of the Supreme Court for the issue of originating applications or documents at the place where the commissioner resides.

36/14 s5

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Duty of Registrar on the filing of an originating document

  5.04. (1) Upon receipt of an originating document initially filed with the Court, the Registrar shall

             (a)  insert on the originating document a file number and the date of filing;

             (b)  impress thereon the seal of the Court; and

             (c)  issue the originating document by signing it and filing it in the Registry.

             (2)  Upon receipt from a commissioner of the Supreme Court for the issue of statements of claim of a true copy of a statement of claim initially filed with the commissioner, the Registrar shall insert upon the copy a file number and the date of the delivery to the Registrar and shall file same in the Registry.

             (3)  The file number assigned to a proceeding in the General Division shall consist of the year of issue, a number to identify the judicial centre where the proceeding is commenced followed by the letter "G" as follows :

 

01G

St. Johns

03G

Grand Falls

04G

Corner Brook

05G

Gander

06G

Grand Bank

08G

Happy Valley-Goose Bay

and then followed by the consecutive number of the proceeding in the order of filing in the Registry of the judicial centre where the proceeding is commenced.

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

1986 c42 Sch D rule 5.04; 21/02 s1; 9/03 s1; 30/10 s3; 36/14 s6

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Issue of concurrent originating document

  5.05. (1) The Registrar may, at any time before an originating document ceases to be valid, issue one or more concurrent originating documents, each of which shall be a true copy of the originating document as amended pursuant to any order, and shall bear the seal of the Court and a certificate completed by the Registrar or on the Registrar's behalf in Form 5.05A.

             (2)  [Rep. by 9/03 s1]

             (3)  [Rep. by 9/03 s1]

             (4)  A copy of an originating document or concurrent originating document that bears the seal of the Court is evidence of the contents of the document and of the date and place of its issue, without proof of the seal.

1986 c42 Sch D rule 5.05; 9/03 s1

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Duration and renewal of originating document, etc.  

  5.06. (1) An originating document is valid for a period of 12 months from the date of issue.

          (1.1)  If a party has not been served within the period, the Registrar may, at any time before its expiration, renew the originating document for a period of 6 months from the date when it would otherwise expire.

          (1.2)  The Registrar may renew the originating document under paragraph (1.1) up to a maximum of 4 times.

             (2)  The Court may, on application, order an originating document to be renewed at any time.

             (3)  Upon the renewal of the originating document, the Registrar shall endorse the originating document, including any concurrent originating document or renewal thereof, with a memorandum as follows: "Renewed for the period of ________________ from ___________" and sign and date it. Any concurrent originating document subsequently issued shall be endorsed with a copy of the memorandum.

             (4)  A concurrent originating document is valid for the period for which the originating document is valid, including any renewal of that period.

1986 c42 Sch D rule 5.06; 48/12 s1

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Right to sue or defend in person or by a solicitor

  5.07. (1) Any person, whether or not that person sues as a trustee or personal representative or in any other representative capacity, may commence, carry on or defend a proceeding in the Court by a solicitor or in person.

             (2)  A body corporate may not commence, carry on or defend a proceeding otherwise than by a solicitor.

1986 c42 Sch D rule 5.07

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Transfer of documents between judicial centres

  5.08. Upon notice, the Court may transfer documents in a proceeding from one judicial centre to another judicial centre.

1986 c42 Sch D rule 5.08