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RULE 54
CROWN PRACTICE RULES IN CIVIL MATTERS

Analysis



Rules to apply

5 4.01. Except where provided specifically in Rule 54, the other rules, including those relating to the abridgement or extension of time, apply in all matters under Rule 54.

1986 c42 Sch D rule 54.01

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Order, not writ, shall issue

54.02. (1) An order in the nature of mandamus, prohibition, certiorari, habeas corpus or quo warranto may be granted by the Court upon an originating application.

             (2)  No writ of mandamus, prohibition, certiorari, habeas corpus or quo warranto shall be issued, but all necessary directions shall be made by order.

1986 c42 Sch D rule 54.02

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Service of originating application

54.03. (1) An originating application shall be served upon every person who appears to be interested or likely to be affected by a proceeding under Rule 54.

             (2)  The Court may order an originating application to be served upon any interested person not served.

             (3)  Where it is sought to quash a judgment, order, warrant or inquiry and on any application for an order in the nature of prohibition, an originating application shall also be served, at least seven days before the return date thereof, upon

             (a)  the Attorney General, and

             (b)  the person making the judgment or order, or issuing the warrant, or holding the inquiry.

             (4)  A person, who has not been served with an originating application, upon showing that the person may be affected by the proceeding and, with the leave of the Court, may take part in the proceeding as though served.

1986 c42 Sch D rule 54.03

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Appeals

54.04. An appeal shall lie from an order of the Court to the Court of Appeal.

30/10 s11

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Power of a judge of the Court of Appeal

54.05. Any direction required to give effect to an order of the Court of Appeal may be made by a judge thereof.

1986 c42 Sch D rule 54.05

I. Certiorari

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Filing and service of applicaiton

54.06. An originating application for an order in the nature of certiorari shall be filed and served within a reasonable time after the date of

             (a)  filing of the judgment;

             (b)  issuing of the order or award;

             (c)  service of the warrant;

             (d)  rendering of the report of the inquiry

to which it relates.

33/11 s2

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Endorsement on originating application

54.07. (1) There shall be endorsed upon an originating application for an order in the nature of certiorari a notice to the following effect, adapted as may be necessary and addressed to the judge, justice or justices, officer, clerk or tribunal:

"You are hereby required forthwith after service of this originating application on you to return to the Supreme Court of Newfoundland and Labrador at _______________, Newfoundland and Labrador, the order, decision or reasons for judgment, together with the process commencing the proceeding, the evidence and all exhibits filed, if any, and all things touching the proceeding as fully and entirely as they remain in your custody, together with this notice.

DATED at ____________, Newfoundland and Labrador , this __________ day of __________, 20_____.

TO:  A.B.

C.D.,
of _______________ Street
_________________,
Newfoundland and Labrador ,
Solicitor for the applicant."

             (2)  All things required by rule 54.07(1) to be returned to the Court shall, for the purpose of an application for an order in the nature of certiorari, be deemed to be part of the record.

36/14 s69

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Return of lower court

54.08. (1) Upon receiving an originating application so endorsed, the judge, justice or justices, officer, clerk or tribunal, shall return forthwith to the Court the order, warrant, decision or reasons for judgment, together with the process commencing the proceeding, the evidence and all exhibits filed, if any, and all other things in the proceeding, together with the originating application served upon him or her, with a certificate endorsed thereon in the following form:

"Pursuant to the accompanying notice I herewith return to this Honourable Court the following papers and documents, that is to say,

                      (i)  the order or decision (or as the case may be) and the reasons therefore,

                     (ii)  the process commencing the proceeding and the warrant issued thereon,

                    (iii)  the evidence taken at the hearing and all exhibits filed, and

                    (iv)  all other papers or documents in the proceeding,

and I hereby certify to this Honourable Court that I have truly set forth all the papers and documents in my custody and power in the proceeding set forth in the originating application."

             (2)  If the papers and documents, or any of them, are not in the possession of the person required to transmit them, that person shall in lieu of or in addition to the certificate, so state and explain the circumstances.

             (3)  When the papers and documents have not been received by the Court as provided in rule 54.08(1), the Registrar shall return a certificate of the fact to the Court. 

             (4)  The return and certificate prescribed in rule 54.08(1) or rule 54.08(2) shall have the same effect as a return to a writ of certiorari had heretofore.

             (5)  The Court may dispense with the return of the evidence or exhibits or any part thereof.

             (6)  A copy of this rule 54.08 shall appear upon or be annexed to the originating application served upon the judge, justice or justices, clerk, officer or tribunal from whom the return is required.

1986 c42 Sch D rule 54.08; 36/14 s70

II. Quo Warranto

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Application of Rules

5 4.09. Rules 54.10 to 54.14, inclusive, apply to the extent that an application in the nature of quo warranto in a particular case is not governed by any statute.

1986 c42 Sch D rule 54.09

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Leave of court required

54.10. An application in the nature of quo warranto , except an ex officio application, shall only be made with the leave of the Court and supported by an affidavit of a person who deposes that the application is made at his or her instance as relator , and that person shall be named as the relator on the application and in the order.

1986 c42 Sch D rule 54.10

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Objection to title to be specific

54.11. Every objection to the title of a defendant on an application shall be specified in the originating application, and no other objection shall be raised by the relator without the leave of the Court.

1986 c42 Sch D rule 54.11

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Substitution or relator

54.12. A new relator may, by leave of the Court, be substituted for the one first named in the originating application when special circumstances are shown.

1986 c42 Sch D rule 54.12

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Consolidation of applications

54.13. (1) Where applications have been made against several persons for the usurpation of the same office with the same or like grounds or objections, the Court may order the applications to be consolidated, or may order all the proceedings, but one, to be stayed until judgment is entered in that one.

             (2)  An order shall not be made to consolidate or stay any proceeding against a defendant unless the defendant gives an undertaking to disclaim if judgment is entered for the Crown upon an application which proceeds.

1986 c42 Sch D rule 54.13

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Disclaimer

54.14. (1) When a defendant does not intend to defend, the defendant may, to prevent the entry of judgment by default, file a disclaimer with the Court and deliver a copy to the relator or the relator's solicitor.

             (2)  When a disclaimer is filed, judgment of ouster may be entered and the costs taxed as in judgment entered by default.

1986 c42 Sch D rule 54.14; 36/14 s71

III. Mandamus

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Affidavit of prosecutor

5 4.15. An order in the nature of mandamus shall not be made unless it is supported by an affidavit of a person who deposes that the application is made at that person's instance as prosecutor, and that person's name appears as the person at whose instance the application is made.

1986 c42 Sch D rule 54.15

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Mandamus issued by the Court

54.16. A proceeding shall not be commenced or prosecuted against any person under Rule 54 in respect of anything done in obedience to a mandamus issued by the Court.

1986 c42 Sch D rule 54.16

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Effect of order

54.17. An order may compel the performance of a duty forthwith, or upon the expiration of a fixed time, or subject to specified terms.

1986 c42 Sch D rule 54.17