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TONGA
SUPREME COURT RULES
2007
"As everybody who has anything to do with the
law well knows, the path of the law is strewn
with examples of open and shut cases which,
somehow, were not; of unanswerable charges
which, in the event, were completely answered;
of inexplicable conduct which was fully
explained; of fixed and unalterable
determinations that, by discussion, suffered a
change."
Megarry J. - John v Rees [1970] 1 Ch 345, 402.
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SUPREME COURT RULES
2007
Edited by Janine Ford LLB
A publication of the Ministry of Justice,
Nuku'alofa, Kingdom of Tonga
Supported by the
Pacific Judicial Development Programme (PJDP)
Funded by AUSaid and NZaid.
Printed by
Craigs Design & Print,
Invercargill
New Zealand
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Rules for the practice and procedure of the Supreme Court made
pursuant to section 6 of the Supreme Court Act (Cap.10)
Anthony D Ford
Chief Justice
1 November 2006
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INDEX
SUPREME COURT RULES
Preliminary Provisions 22
Commencement and Progress of Proceedings 28
Hearings and Trials 78
Enforcement Action 88
Special Procedures and General 108
FORMS 131
DIVORCE RULES 169
FORMS 187
LAND COURT RULES 199
FORMS 206
COURT OF APPEAL RULES 1990 210
FORMS 233
COURT OF APPEAL (CONSTITUTION OF COURT)
RULES 2003 241
SCHEDULE 244
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SUPREME COURT RULES
PRELIMINARY PROVISIONS
ORDER 1. CITATION
1. Title and commencement
ORDER 2. APPLICATION OF THESE RULES
1. Civil proceedings
2. Divorce Rules
3. English Rules
4. Where there is no appropriate provision
5. Construction
6. Delegation
ORDER 3. INTERPRETATION
1. Interpretation Act
2. Meanings
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ORDER 4. NON-COMPLIANCE WITH RULES
1. Treated as an irregularity
2. Setting aside irregularity
3. Grounds to be stated
ORDER 5. TIME
1. Time may be extended or abridged
2. Non-contentious requests
3. Time may be varied by consent
4. Time expiring when Court closed
COMMENCEMENT AND PROGRESS OF
PROCEEDINGS
ORDER 6. COMMENCEMENT OF ACTION
1. Action commenced by filing writ and statement
of claim
2. Whether jury required
3. Address for service
4. Service within 12 months
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ORDER 7. DISPUTE AS TO JURISDICTION
1. Step taken means submission to jurisdiction
2. Challenge to jurisdiction
3. Grounds for relief to be stated
4. Service of application
5. Hearing of application
6. Application not a step in the action
7. Time for service of defence
ORDER 8. PLEADINGS
1. Headings
2. Statement of claim
3. Statement of defence
4. Counterclaim
5. Notice to other defendant
6. Further particulars
7. Amendments
8. Striking out pleading
9. When pleadings deemed closed
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ORDER 9. PARTIES
1. Misjoinder and non-joinder
2. Dismissing and adding parties
3. Application to add or dismiss
4. Consent needed to add plaintiff
5. Effect of limitation period
6. Action against estate
7. Minors and incapacitated persons
8. Limitation of parties and representation
ORDER 10. THIRD PARTY PROCEEDINGS
1. Leave required to serve third party notice
2. Application for third party notice
3. Effect of third party notice
4. Fourth or subsequent party notice
ORDER 11. SERVICE OF DOCUMENTS
1. Requirements for documents
2. Directions notice
3. Responsibility for service
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4. Certificate of service
5. Service by the Court
6. Substituted service
ORDER 12. SERVICE OUT OF THE JURISDICTION
1. When permitted
2. Application for leave
3. Where leave given
4. When service deemed effective
ORDER 13. APPLICATIONS FOR COURT ORDERS
1. Form of application
2. Contents of application notice
3. Applications to be referred to a Judge
4. Applications which may be dealt with without a
hearing
5. Service of applications requiring a hearing
6. Court’s powers
7. Setting aside Court order
8. Costs on applications
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ORDER 14. JUDGMENT IN DEFAULT OF
DEFENCE
1. Application may be made ex parte
2. Supporting documentation
3. Entry of judgment
4. Setting aside judgment
5. Other defendants
ORDER 15. SUMMARY JUDGMENT
1. When summary judgment available
2. Grounds for application
3. Supporting affidavit
4. Application to be on notice
5. Opposition to application
6. Court’s powers
7. Counterclaim
8. Court to give directions
ORDER 16. WITHDRAWAL AND
DISCONTINUANCE
1. Leave required
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2. Defence may be withdrawn without leave
ORDER 17. SECURITY FOR COSTS
1. When order can be made
2. Order may be varied or revoked
ORDER 18. DISCOVERY AND INSPECTION OF
DOCUMENTS
1. Request for documents
2. List of documents
3. Affidavit verifying documents
4. Order for discovery
5. Inspection
6. Non-compliance
7. Production of documents
8. Non-party discovery
ORDER 19. DIRECTIONS HEARINGS
1. To be convened upon filing of defence
2. Further directions hearings
3. Attendance at directions hearing
4. Procedure at directions hearing
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5. Hearing not to be adjourned sine die
ORDER 20. INTERROGATORIES
1. Leave required to issue interrogatories
2. Objection to answering interrogatories
3. Restriction on interrogatories
4. When interrogatories not permitted
5. Inadequate answers
6. Non-compliance with order for interrogatories
7. Order may be varied or revoked
ORDER 21. ADMISSIONS
1. Admitting truth of pleading
2. Notice to admit
3. Admission as to documents
ORDER 22. INJUNCTIONS
1. Form of application
2. Ancillary orders
3. Further directions
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ORDER 23. PAYMENT INTO COURT
1. Time for making payment
2. Payment may be increased
3. Notice of payment
4. Payment cannot be withdrawn without leave
5. Acceptance of payment
6. Consequences of acceptance
7. Plaintiff’s entitlement upon acceptance
8. Consequences of non-acceptance
9. Trial Judge not to be informed of payment
10. Counterclaim
11. Registrar to invest payment
ORDER 24. OFFER "WITHOUT PREJUDICE SAVE
AS TO COSTS"
1. Form of offer
2. Offer not to be communicated to Court
3. Court to determine relevance of offer in relation
to costs
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HEARINGS AND TRIALS
ORDER 25. TRIAL
1. Venue
2. Pre-trial conference
3. Form of trial
4. Separate trials
5. Failure to appear at trial
6. Adjournment
7. Procedure at trial
8. Scene inspection
9. Exhibits
10. Recordings
11. Application of rules to hearings other than
trials
ORDER 26. ORAL AND EXPERT EVIDENCE
1. Facts to be proved by oral evidence
2. Expert evidence
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ORDER 27. AFFIDAVIT EVIDENCE
1. When affidavit evidence permitted
2. Requirements for an affidavit
3. Authority to take affidavits
4. Certificate as to understanding
5. Exhibits
6. Contents of affidavit
7. Cross-examination of deponent
8. Translations
ENFORCEMENT ACTION
ORDER 28. GENERAL PROVISIONS RELATING
TO JUDGMENTS AND ORDERS
1. Judgments to be signed and sealed
2. Name of Judge to be shown
3. Date judgment takes effect
4. Service of judgments and orders
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5. Clerical mistakes may be corrected
ORDER 29. GENERAL PROVISIONS RELATING
TO ENFORCEMENT PROCEEDINGS
1. When leave is required to issue enforcement
proceedings
2. Term of writ of enforcement
3. Priorities of writs of enforcement
4. Withdrawal of enforcement action
5. Order of committal
ORDER 30. ENFORCEMENT OF JUDGMENT FOR
PAYMENT OF MONEY
1. Modes of enforcement
2. Judgment debt to carry interest
ORDER 31. WRIT OF DISTRESS
1. Form of writ of distress
2. Application for writ
3. Execution of writ of distress
4. Stay of execution
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ORDER 32. GARNISHEE PROCEEDINGS
1. When garnishee proceedings available
2. Form of application
3. Order to show cause
4. Garnishee may make payment into Court
5. Orders on further consideration
6. Effect of payment by garnishee
ORDER 33. APPOINTMENT OF RECEIVER
1. Form of application for appointment of receiver
2. Service of application
3. Court may give directions
4. Service of order
5. Receiver’s remuneration
6. Receiver’s functions
ORDER 34. CHARGING ORDER
1. Purpose of charging order
2. Application for charging order
3. Order to show cause
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4. Procedure on further consideration
5. Form of charging order
6. Service of order
7. Order may be varied or discharged
8. Enforcement
ORDER 35. ENFORCEMENT OF JUDGMENT FOR
DELIVERY OF GOODS
1. Modes of enforcement of judgment
2. Form of writ of delivery
3. Application for writ of delivery
4. Writ may include provision for enforcing
payment
5. Duties of bailiff
ORDER 36. ENFORCEMENT OF JUDGMENT FOR
POSSESSION OF BUILDING
1. Modes of enforcement of judgment
2. Form of writ of possession
3. Application for writ of possession
4. Writ may include provision for enforcing
payment
5. Duties of bailiff
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SPECIAL PROCEDURES AND GENERAL
ORDER 37. EXAMINATION OF JUDGMENT
DEBTOR
1. Application for examination
2. The examination
ORDER 38. CONTEMPT OF COURT
1. Punishment for contempt of Court
2. Contempt in face of Court
3. Disobedience of Court order or undertaking
4. Procedure if Court grants leave
5. Hearing of application
6. Enforcement may be suspended
7. Committal on Court’s own motion
ORDER 39. JUDICIAL REVIEW
1. When remedy available
2. Leave of Court required
3. Court’s powers
4. Position if Court grants leave
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ORDER 40. HABEAS CORPUS
1. When the writ of habeas corpus is available
2. Mode of application
3. Court may direct service
4. Service of application
5. Directions to be given as to when writ
returnable
6. Form of writ of habeas corpus
7. Service of writ
8. Return of writ
9. Hearing on return of writ
ORDER 41. RESEALING FOREIGN PROBATES
1. Application to be made ex parte
2. Supporting affidavit required
3. The Court may require notification to be given
4. The Court may impose conditions
ORDER 42. PROCEEDINGS IN ADMIRALTY
1. Jurisdiction
2. Rules and practice
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ORDER 43. CHANGE OF LAWYER
1. Notice of a change of lawyer
2. Withdrawal of lawyer
ORDER 44. WITNESS SUMMONS
1. Request to be made to Registrar
2. Form of witness summons
3. Service of summons
4. Conduct money
ORDER 45. MEDIATION
1. Application of this Order
2. Court may refer proceeding to mediation
3. Reference not to operate as a stay of
proceedings
4. Functions of mediator
5. Procedure at mediation
6. Costs in respect of mediation
ORDER 46. TAXATION OF COSTS
1. Application of this Order
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2. Costs to be assessed at conclusion of trial if
possible
3. Costs to be taxed if not assessed
4. Bill of costs to be lodged for taxation
5. Service of bill of costs
6. Objection to bill of costs
7. Procedure on taxation
8. Referral to Judge
9. Appeal from decision of Registrar
10. Review of Judge’s decision
11. Taxation certificate
ORDER 47. ASSESSMENT OF COSTS
1. Application of this Order
2. Allowance for costs
3. Solicitor — client costs
4. Practice directions relating to costs
5. Additional costs to be certified for
ORDER 48. REPEAL AND TRANSITIONAL
1. Court Rules
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2. Transitional
3. Practice Directions
FORMS
Form 1 : Writ of Summons
Form 2 : Statement of Claim
Form 3 : Notice to other defendant
Form 4 : Directions Notice
Form 5 : Certificate of Service
Form 6 : Application Notice
Form 7 : Draft judgment in default
Form 8 : List of documents
Form 9 : Affidavit verifying list of documents
Form 10 : Notice of directions hearing
Form 11 : Notice of payment into Court
Form 12 : Notice of acceptance of money paid
into Court
Form 13 : Writ of distress
Form 14 : Garnishee order to show cause
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Form 15 : Garnishee order absolute
Form 16 : Charging order -- notice to show cause
Form 17 : Charging order absolute
Form 18 : Writ of delivery
Form 19 : Notice of execution of writ of delivery
Form 20 : Writ of possession
Form 21 : Writ of habeas corpus
Form 22 : Notice of change of lawyer
Form 23 : Witness summons
Form 24 : Request to tax bill of costs
Form 25 : Certificate of taxation
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PRELIMINARY PROVISIONS
ORDER 1 : CITATION
O.1 Rule 1. Title and commencement
These rules may be cited as the Supreme Court
Rules 2007 and shall come into effect on 1 January
2007.
ORDER 2 : APPLICATION OF THESE RULES
O.2 Rule 1. Civil proceedings
Subject to rules 2 and 3 these rules shall apply to all
civil proceedings in the Court except in so far as they
may be inconsistent with any statutory provisions.
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O.2 Rule 2. Divorce Rules
These rules shall apply to divorce and related
proceedings only in so far as there is no provision in
the Divorce Rules.
O.2 Rule 3. English Rules
Where there is no provision in these rules the rules of
procedure under the former Rules of the Supreme
Court (RSC) in England (the "White Book") shall
continue to apply notwithstanding the substantial and
ongoing replacement of those rules by the Civil
Procedure Rules 1998 (CPR).
O.2 Rule 4. Where there is no appropriate
provision
If it appears in any given situation that no appropriate
provision exists either in these rules or the English
Rules referred to in rule 3, then the procedure to be
followed shall be that prescribed by the Judge and in
exercising any powers under this rule the Judge may
be guided by any provision in the English Civil
Procedure Rules 1998 (CPR).
O.2 Rule 5. Construction
In the event of any difference in meaning between the
English text and the Tongan text of these rules, the
meaning of the English text shall prevail.
O.2 Rule 6. Delegation
The Chief Justice may from time to time delegate to
the Registrar such functions and duties under these
rules as the Chief Justice deems appropriate.
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ORDER 3 : INTERPRETATION
O.3 Rule 1. Interpretation Act
The Interpretation Act shall apply to these Rules.
O.3 Rule 2. Meanings
"action" means any civil proceeding commenced by
writ;
“application" means an application under Order 13 to
the Court for a Court order whether in the course of
an existing proceeding or as an originating
application;
"application notice" means a document in Form 6 by
which an applicant applies under Order 13 rule 1 to
seek a Court order;
"directions hearing" means a hearing convened by the
Court pursuant to Order 19;
"directions notice" means a notice as prescribed in
Form 4;
"document" includes a pleading and includes any
document filed in connection with an application;
"file" means to file in the appropriate office of the
Court;
“incapacitated person” means a person suffering from
a mental disorder or mental illness under the Mental
Health Act 2000 to such an extent as to be incapable
of managing his or her property and affairs;
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“Judge” means the Chief Justice or any other Judge
of the Supreme Court;
“lawyer” means a law practitioner enrolled and
holding a valid practising certificate under the Law
Practitioners Act 1989;
“Kingdom” means the territory of the Kingdom of
Tonga;
“minor” means a person under the age of 21 years;
“party” means any person who is a party to the
proceeding referred to and includes a plaintiff,
defendant, and third or subsequent party;
“person” includes any individual, a body of persons
capable of suing and being sued, and a body
corporate;
"pleading" includes a statement of claim, a statement
of defence, a reply and a counterclaim;
"proceeding(s)" includes any action, application or
other legal matter involving the exercise of the civil
jurisdiction of the Court;
“Registrar” means the Chief Registrar or Registrar of
the Supreme Court and includes any grade of
Registrar;
“service officer” means a police Court officer, a bailiff,
or an officer of the Court authorised to effect service
of documents;
"writ", unless the context otherwise requires, means a
writ of summons.
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ORDER 4 : NON-COMPLIANCE WITH RULES
O.4 Rule 1. Treated as an irregularity
Where there has been a failure to comply with these
rules in any respect:
(a) that failure shall be treated as an irregularity
and shall not nullify the proceedings or any
judgment or order made therein;
(b) the Court may, on such terms as it thinks fit, set
aside either wholly or in part any order made in
the proceedings in which the irregularity
occurred.
O.4 Rule 2. Setting aside irregularity
An application to set aside for irregularity shall not be
allowed unless it is made within a reasonable time
and before the party applying has taken any fresh
step after becoming aware of the irregularity.
O.4 Rule 3. Grounds to be stated
An application notice under rule 2 shall state the order
sought and the concise grounds therefore.
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ORDER 5 : TIME
O.5 Rule 1. Time may be extended or abridged
The Court may, on such terms as it thinks just, order
that the time within which a person is required to or
authorised to do any act in any proceedings, whether
before or after judgment, be extended or abridged.
O.5 Rule 2. Non-contentious requests
If an extension or abridgement of time is likely to be
non-contentious then the Court may act on a
memorandum from counsel or a request in writing
made through the Registrar but in all other cases a
request under this Order must be made by application
notice.
O.5 Rule 3. Time may be varied by consent
The time within which any person is required by the
rules, or by any order of the Court, to serve, file, or
amend any pleading may be extended or abridged by
consent given in writing without an order of the Court.
O.5 Rule 4. Time expiring when Court closed
Unless otherwise ordered by the Court, when the time
for doing any act expires on a day when the Court
office is closed, the act shall be done in time if done
on the next day on which that office is open.
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COMMENCEMENT AND PROGRESS OF
PROCEEDINGS
ORDER 6 : COMMENCEMENT OF ACTION
O.6 Rule 1. Action commenced by filing writ
and statement of claim
(1) An action shall be commenced by the filing of a
writ of summons in Form 1 with a statement of
claim attached in Form 2.
(2) As many copies of the writ and statement of
claim are to be filed as there are parties to be
served.
O.6 Rule 2. Whether jury required
A writ shall state whether or not the plaintiff requires
the action to be tried by a jury.
O.6 Rule 3. Address for service
(1) Where the plaintiff sues by a lawyer, the
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statement of claim shall be endorsed with that
lawyer’s name and an address for service
which will be that of a lawyer within the
Kingdom.
(2) Where the plaintiff sues in person, the
statement of claim shall be endorsed with that
person’s name and an address for service
within the Kingdom.
(3) The address for service is to include any
telephone and facsimile numbers along with
any e-mail address.
O.6 Rule 4. Service within 12 months
(1) Subject to paragraph (2), a writ shall become
invalid unless served on every defendant within
12 months from the date on which it was
issued.
(2) Where for good reason a writ has not been
served on a defendant in accordance with
paragraph (1) the Court may from time to time
by order extend its validity for any period not
exceeding 12 months; and such order must be
served along with the writ.
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ORDER 7 : DISPUTE AS TO JURISDICTION
O.7 Rule 1. Step taken means submission to
jurisdiction
Subject to the provisions of this order, a party who
takes any step in an action shall be deemed to have
submitted to the jurisdiction of the Court.
O.7 Rule 2. Challenge to jurisdiction
A defendant who wishes to dispute the jurisdiction of
the Court in an action may, within the time limited for
service of a defence and before taking any other step
in the action, apply to the Court for:
(a) an order setting aside the writ or service of the
writ;
(b) an order declaring that the writ has not been
duly served;
(c) the discharge of any order extending the validity
of the writ out of the jurisdiction;
(d) the discharge of any order extending the validity
of the writ for the purpose of service;
(e) an order to preserve or release any property
seized or threatened with seizure in the action;
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(f) a declaration that the Court has no jurisdiction
in respect of the subject matter of the claim or
the relief sought in the action; or
(g) such other relief as may be appropriate.
O.7 Rule 3. Grounds for relief to be stated
An application notice under rule 2 shall state the relief
sought and the concise grounds therefore, supported
by an affidavit setting out the facts on which the
application is based.
O.7 Rule 4. Service of application
The application notice and a copy of the affidavit in
support shall be served on the plaintiff not less than 7
clear days before the hearing date.
O.7 Rule 5. Hearing of application
At the hearing of the application the Court may:
(a) determine the matter summarily;
(b) direct that the matter be tried as a preliminary
issue; or
(c) give such other directions for its disposal as
may be appropriate.
O.7 Rule 6. Application not a step in the action
A defendant who makes an application under rule 2
shall not be treated as having submitted to the
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jurisdiction of the Court by reason of having taken a
step in the action.
O.7 Rule 7. Time for service of defence
If the Court makes no order on the application or
dismisses it, the time for service of the defence shall
run from the date of such order.
ORDER 8 : PLEADINGS
O.8 Rule 1. Headings
(1) All documents presented for filing in a
proceeding shall bear the Case Number, the
proper heading of the proceeding and a
description of the document.
(2) The heading of every statement of claim and of
every counterclaim shall, where the relief
claimed relates to a statute or an estate, show
the Short Title of the Act or the name of the
estate.
O.8 Rule 2. Statement of claim
Every statement of claim shall be in Form 2 and shall
state:
(a) the full name and the place of residence and
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occupation of every plaintiff and defendant, so
far as they are known to the party presenting
the document for filing;
(b) the material facts upon which the plaintiff relies
giving such particulars of time, place, amounts,
names of persons, nature and dates of
instruments, and other circumstances as may
suffice to inform the Court and the party or
parties against whom relief is sought of the
plaintiff’s cause of action;
(c) the relief or remedy sought and shall state
specifically any claim for interest;
(d) an address for service in terms of Order 6 rule
3.
O.8 Rule 3. Statement of defence
(1) A defendant who wishes to defend a claim
shall, within 28 days of service of the writ, file a
defence with as many copies as there are
persons to be served.
(2) A defence shall state concisely the grounds of
defence on which the defendant intends to rely,
and whether the defendant requires the case to
be tried by a jury.
(3) Subject to paragraph 4, a defendant shall be
deemed to admit every material allegation of
fact in the statement of claim which is not
specifically denied.
(4) A defendant shall be deemed to deny any
allegation that a party has suffered damage,
and the alleged amount of such damage,
unless specifically admitted.
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(5) A defence of tender before action may not be
pleaded unless and until the defendant has paid
into Court (in accordance with Order 23) the
amount alleged to have been tendered.
O.8 Rule 4. Counterclaim
(1) A defendant in any action who claims to be
entitled to any relief against a plaintiff in the
action (whenever and however arising) may,
instead of bringing a separate action, make a
counterclaim in respect of that matter by adding
the counterclaim to the statement of defence.
(2) A plaintiff who wishes to defend a counterclaim
shall, within 28 days after service of the
counterclaim, file a defence to the counterclaim,
which may be incorporated with a reply to the
defence.
(3) These rules shall apply to a counterclaim as if
the counterclaim were a separate action in
which the person making the counterclaim were
plaintiff and the person against whom it is made
were defendant.
(4) A counterclaim may be proceeded with
notwithstanding that judgment is given for the
plaintiff in the action, or that the action is
stayed, discontinued, or dismissed.
(5) Where a defendant proves a counterclaim
against the plaintiff’s claim and there is a
balance in favour of one party, the Court may
give judgment for the balance.
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O.8 Rule 5. Notice to other defendant
(1) Where in any action a defendant:
(a) claims against another defendant who is
already a party to the action any
contribution or indemnity or any relief or
remedy relating to or connected to the
original subject matter of the action; or
(b) requires that any question or issue
relating to the original subject matter of
the action should be determined not only
as between the plaintiff and the
defendant but also between either or
both of them and another defendant;
then the defendant may, without leave, issue and
serve on that other defendant a notice in Form 3.
(2) The notice to the other defendant shall contain
a statement of the nature and grounds of the
claim or, as the case may be, of the question or
issue required to be determined.
O.8 Rule 6. Further particulars
(1) A party on whom a pleading is served may
request the party whose pleading it is to give
particulars of any allegation or other matter
pleaded, and if that party fails to give such
particulars within a reasonable time, the Court
may on application order that such particulars
be given.
(2) Where particulars are given, whether pursuant
to a request or order of the Court, they shall be
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filed and served as a formal document and not
in the form of a letter.
(3) The request or order shall be incorporated with
the particulars, with each item of the particulars
following immediately after the corresponding
item of request or order.
(4) An order under this rule shall not be made
before service of the defence unless, in the
opinion of the Court, the order is necessary or
desirable to enable the defendant to plead or
for some other special reason.
O.8 Rule 7. Amendments
(1) A party may, without leave of the Court, amend
any pleading once only at any time before the
pleadings are deemed to be closed.
(2) A party may not without leave of the Court
amend any pleadings after pleadings are
deemed to be closed.
(3) An Application for leave to amend a pleading
shall be made by application notice which shall
have attached a copy of the proposed
amendment.
(4) Upon any amendment or application to amend,
the original format shall be retained and the
amendment shall be in red or underlined in red.
If the amendment is a deletion, the passage to
be deleted shall be marked through with a
single red line. If a passage is to be substituted
or added, it shall be inserted at the appropriate
place in red or underlined in red.
(5) Where it is necessary, as the result of an
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amendment, to amend the statement of
defence or reply, the pleading shall be
amended as described in paragraph (4).
(6) In any case where further amendment is
necessary, such further amendments shall be in
green, then blue, then yellow.
(7) If the Court grants leave to amend any pleading
it may make such order as to costs and as to
the further conduct of the action as it thinks just.
(8) A copy of every amended pleading shall be filed
and served on all parties to the action.
O.8 Rule 8. Striking out pleading
(1) The Court may at any time order that any
pleading or part thereof be struck out if:
(a) it discloses no reasonable cause of
action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it is unclear, or may otherwise prejudice
or delay the fair trial of the action; or
(d) it is otherwise an abuse of process of the
Court;
and may order the action to be stayed or dismissed,
or judgment to be entered accordingly.
(2) No evidence shall be heard on an application
under paragraph (1)(a).
(3) Subject to paragraph 4, the Court may, of its
own motion, strike out an action:
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(a) if the writ has become invalid under
Order 6 rule 4(1); or
(b) the case has not been set down for trial
within two years after service of the writ;
or
(c) the action has been adjourned sine die
and no step has been taken in the action
within two years from the date when it
was so adjourned.
(4) No action shall be struck out under this rule
unless the parties have been given not less
than 28 days notice of the Court’s intention to
do so.
O.8 Rule 9. When pleadings deemed closed
The pleadings in an action are deemed to be closed:
(a) after 14 days from service of a reply and/or a
defence to counter-claim, or
(b) if no such pleading is served, after 14 days from
service of the defence,
whether or not any request or order for particulars has
been made but not yet complied with at that time.
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ORDER 9 : PARTIES
O.9 Rule 1. Misjoinder and non-joinder
No claim shall be defeated by reason of the
misjoinder or non-joinder of any party.
O.9 Rule 2. Dismissing and adding parties
Subject to Rules 4 and 5, the Court may at any stage
in the proceedings, of its own motion or on
application, and on such terms as it thinks just:
(a) order any person who is not a proper or
necessary party to be dismissed from the
action;
(b) order any person to be added as a party if that
person ought to have been joined as a party or
if the person’s presence is necessary or
convenient to ensure that all related matters are
finally determined.
O.9 Rule 3. Application to add or dismiss
An application to add or to dismiss a party shall be
made by application notice supported by an affidavit
showing the grounds for such application.
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O.9 Rule 4. Consent needed to add plaintiff
No person shall be added as a plaintiff without that
person’s consent.
O.9 Rule 5. Effect of limitation period
Unless the Court otherwise orders, no person shall be
added or substituted as a party after the expiry of any
relevant period of limitation.
O.9 Rule 6. Action against estate
(1) Where a person against whom an action has
been brought has died, the action shall be
treated as if it were brought against the
deceased’s estate.
(2) Where a person against whom an action would
have lain has died but the cause of action
survives, the action may be brought against the
deceased’s estate.
(3) Where paragraphs (1) or (2) apply, and no
grant of probate or administration has been
made, the plaintiff shall apply to the Court for
some person to be appointed to represent the
estate.
(4) An application under paragraph (3) shall be
made by application notice supported by an
affidavit both of which shall be served on the
person proposed to be appointed.
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O.9 Rule 7. Minors and incapacitated persons
(1) An incapacitated person or a minor may
commence and prosecute proceedings by a
next friend and may defend proceedings by a
guardian ad litem.
(2) No step shall be taken in any proceedings by
an incapacitated person or a minor until the
next friend or guardian ad litem (as the case
may be) has filed with the Court a written
consent to act by the proposed next friend or
guardian ad litem together with a certificate by a
lawyer representing the incapacitated person or
minor certifying that:
(a) the person to whom the certificate relates
is an incapacitated person or minor (as
the case may be), and stating the
grounds for such knowledge or belief,
and
(b) that the person named in the certificate
as next friend or guardian ad litem has no
interest in the action in question adverse
to that of the incapacitated person or
minor, and is a proper person to be next
friend or guardian ad litem.
(3) Where a pleading has been served on a party
who appears to be an incapacitated person or a
minor, the party at whose instance the
document was served shall, before taking any
further step in the proceedings, make
application to the Court by application notice for
directions as to whether a guardian ad litem
should be appointed to act for that person.
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(4) If on the hearing of an application under
paragraph (3), the Court considers it necessary
to protect the interests of the person served, it
shall order some proper person to be appointed
guardian ad litem.
O.9 Rule 8. Limitation of parties and
representation
In all proceedings the number of persons named or
joined as parties shall be limited as far as is
practicable to those whose presence before the Court
is necessary for a due and just determination of the
issue or issues arising out of the proceeding or whom
it is thought to bind by any judgment given therein.
ORDER 10 : THIRD PARTY PROCEEDINGS
O.10 Rule 1. Leave required to serve third party
notice
Where a defendant who has filed a defence:
(a) claims against a person not already a party to
the action any contribution or indemnity; or
(b) claims against such person relief which is
substantially the same as that claimed by the
plaintiff; or
(c) requires that any issue arising in the action be
determined also as it affects such person;
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that defendant may apply for leave to issue a third
party notice.
O.10 Rule 2. Application for third party notice
Application for leave to issue a third party notice shall
be made by application notice supported by an
affidavit:
(a) identifying the person against whom such
proceedings are to be taken, and
(b) stating the grounds of the application, and
(c) exhibiting a copy of the proposed third party
notice.
O.10 Rule 3. Effect of third party notice
If the Court grants leave to issue a third party notice
these rules shall apply as if the third party notice were
a writ issued by the defendant and the third party
were defendant to that writ.
O.10 Rule 4. Fourth or subsequent party notice
Where a third or subsequent party who has filed a
defence makes any such claim as is described in
Rule 1 that person may apply for leave to issue a
further notice against a fourth or subsequent party,
and the provisions of this Order shall apply with any
necessary modifications as if the person issuing the
notice were a defendant.
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ORDER 11 : SERVICE OF DOCUMENTS
O.11 Rule 1. Requirements for documents
(1) Every document filed in Court shall:
(a) be endorsed with the address for service
of the party on whose behalf it is filed
and,
(b) unless filed in connection with an ex
parte application, shall be served on
every other party as provided for in these
rules.
(2) Unless otherwise ordered by the Court, after a
document has been filed (other than in ex parte
proceedings) no further step shall be taken in
the action until service of that document has
been effected.
O.11 Rule 2. Directions notice
(1) Any Court document to be served on a recipient
in person shall have attached, stapled to the
front of the document so it can be clearly seen,
a directions notice in Form 4 of the Schedule
printed in both the Tongan and English
languages.
(2) the directions notice shall be printed in upper
case with a font size of not less than 12 points.
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O.11 Rule 3. Responsibility for service
(1) Subject to rule 6, the party on whose behalf a
document was filed shall ensure that it is served
in accordance with this rule.
(2) Unless otherwise ordered by the Court, where a
party is represented by a lawyer service of that
party’s documents shall be effected by that
lawyer or the lawyer’s agent.
(3) Where a party acts in person service of that
party’s documents shall be effected by a
service officer, on payment of such fee as may
be prescribed.
(4) Unless otherwise ordered by the Court, when a
lawyer has notified the Court that the lawyer
represents any party, service of any document
on that party shall be effected by delivering a
sealed copy thereof to his or her lawyer.
(5) Where a party acts in person, service of any
document on such party shall be effected
personally by delivering to that person a sealed
copy, or if the person refuses or neglects to
accept the same, by placing it down in the
person’s presence after informing the person of
the nature thereof.
O.11 Rule 4. Certificate of service
(1) A person serving any document shall, within 14
days of service, complete and file a certificate
of service in Form 5 setting out details of the
time, date, place and mode of service and the
server’s means of knowledge of the identity of
the person served.
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(2) The server’s name and address shall be printed
clearly or typed in the space provided for on the
certificate of service.
(3) The certificate of service shall make express
reference to any directions notice required to be
served under Rule 2.
O.11 Rule 5. Service by the Court
(1) Service by the Court on a lawyer representing a
party shall be effected by the Court clerk
placing the document in the lawyer’s
correspondence rack at the Court office and
endorsing on the file cover the notation:
"Placed in correspondence rack number ………
at ………. AM/PM on (insert date)”
(2) The Court clerk shall initial the notation and
thereafter such endorsement shall be evidence
of due service.
O.11 Rule 6. Substituted service
(1) If it appears to the Court that it is impracticable
to serve any document in accordance with rule
3, it may grant leave to substitute some other
form of service which appears likely to bring
that document to the notice of the person to be
served.
(2) If it appears to the Court that it is impracticable
to serve any party in accordance with rule 3, or
it is otherwise necessary or expedient to
dispense with service of any document on that
party, the Court may make an order dispensing
with such service.
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(3) Application for an order under this rule shall be
made ex parte supported by an affidavit
showing what steps have already been taken to
effect service and stating the grounds of the
application. The applicant may be required to
attend on the application.
(4) Application for an order for substituted service
on a person domiciled outside the jurisdiction
may be made only after leave has been granted
under Order 12, rule 1 allowing for service on
the person out of the jurisdiction.
(5) An application for leave to serve outside the
jurisdiction and for an order for substituted
service may be incorporated in the same
application notice.
ORDER 12 : SERVICE OUT OF THE JURISDICTION
O.12 Rule 1. When permitted
A writ may, with the leave of the Court, be served out
of the jurisdiction if:
(a) the person to be served is domiciled within that
other jurisdiction;
(b) an injunction is sought ordering the defendant
to do or not to do any act within the jurisdiction;
(c) the claim is brought against a person within the
jurisdiction and a person out of the jurisdiction
is a necessary or proper party thereto;
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(d) the claim is brought in contract and:
(i) the contract was made within the
jurisdiction, or
(ii) the contract was made by or through an
agent trading or residing within the
jurisdiction on behalf of a principal trading
or residing out of the jurisdiction, or
(iii) the contract is governed by Tongan law,
whether expressly or by implication, or
(iv) the contract gives jurisdiction to the
Court, or
(v) wherever the contract was made, the
claim is brought in respect of a breach of
contract committed within the jurisdiction;
(e) the claim is brought in tort and the tortious act
was committed, or the damage was sustained,
within the jurisdiction;
(f) the claim is brought to execute any trusts
arising under a written instrument which trusts
ought to be executed according to Tongan law,
and the person to be served is a trustee;
(g) the claim relates to the administration of the
estate of any person who died domiciled within
the jurisdiction;
(h) the claim is brought to enforce any judgment.
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O.12 Rule 2. Application for leave
Application for leave under rule 1 shall be made ex
parte by application notice with an affidavit stating:
(a) the grounds on which the application is made;
(b) that in the deponent’s belief the applicant has a
good cause of action; and
(c) the address at which it is desired to effect
service on the defendant.
O.12 Rule 3. Where leave given
Where leave is given under rule 1:
(a) the Court shall fix the time allowed for the
defendant to file a defence, and
(b) a copy of the order granting leave shall be
served with the writ.
O.12 Rule 4. When service deemed effective
Service of a writ pursuant to an order made under
rule 1 shall be deemed effective if it is served:
(a) personally, or
(b) in compliance with an order for substituted
service, or
(c) in accordance with the law of the country in
which service is effected.
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ORDER 13 : APPLICATIONS FOR COURT ORDERS
O.13 Rule 1. Form of application
(1) Subject to paragraph 2, an application shall be
made to the Court by filing an application notice
in Form 6.
(2) An application may be made to the Court
informally without filing an application notice:
(a) if there is exceptional urgency;
(b) where a Court order, rule or practice
direction permits; or
(c) with the permission of the Court.
(3) Unless provided otherwise in these rules, the
parties to an application may be described in
the application notice as applicant(s) and
respondent(s) notwithstanding their description
in the substantive proceedings.
(4) The parties to an application relating to the
enforcement of a judgment or order may, where
appropriate, be described as judgment
creditor(s) and judgment debtor(s).
O.13 Rule 2. Contents of application notice
(1) An application notice shall:
(a) describe the order the applicant is
seeking;
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(b) state briefly, but adequately, the grounds
for seeking the order;
(c) identify any statutory provision, rule or
principle of law relied upon;
(d) where the applicant is not already a party
to proceedings, include an address for
service;
(e) either request a hearing or request that
the application be dealt with without a
hearing; and
(f) comply with any other requirements of
these rules.
(2) An application notice shall be accompanied by
an affidavit(s) sworn and filed in support. The
application notice may refer to grounds
appearing from a supporting affidavit.
(3) Where an application is made against one party
only and there are other parties to the
proceedings, only the party against whom the
order is sought should be named as respondent
in the application notice but a copy of the
application should be served by the applicant
on the other parties for information purposes.
(4) An application notice shall have attached a draft
of the order sought.
O.13 Rule 3. Applications to be referred to a
Judge
(1) Every application notice filed in Court shall be
referred to a Judge who shall determine how
the application shall be dealt with.
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(2) The Court may deal with an application without
a hearing in the circumstances provided for by
rule 4.
(3) In all other cases the Court shall hear the
application.
(4) The Court may require an ex parte application
to be heard.
O.13 Rule 4. Applications which may be dealt
with without a hearing
(1) The Court may deal with an application without
a hearing if:
(a) the parties agree as to the terms of the
order sought;
(b) the application only affects the party
applying, or is in respect of a matter of
routine;
(c) the parties agree that the Court should
dispose of the application without a
hearing;
(d) any enactment, rule or practice direction
permits; or
(e) the Court considers it appropriate in the
interests of justice to dispense with a
hearing.
(2) Unless the Court otherwise directs, an
application under this rule shall be treated as an
ex parte application and it shall not be
necessary to serve the application notice on the
respondent.
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O.13 Rule 5. Service of applications requiring a
hearing
(1) If the application requires a hearing and it
relates to an existing proceeding then, as soon
as practicable after the filing of the application
or, in the case of an ex parte application, after
the issuance of a Court order directing the
application to be heard, the applicant shall
serve a copy of the application notice and
supporting documentation (including the Court
order if applicable) on each respondent.
(2) After the filing by the applicant of the
certificate(s) of service, the Court shall convene
a directions hearing to determine the future
conduct of the application.
(3) If the application to be heard does not relate to
an existing proceeding then, upon the filing of
the application notice, the Court shall issue an
order giving directions regarding service and/or
the future conduct the proceeding or convening
a directions hearing.
(4) Upon the issuance by the Court of an order
under paragraph (3) the applicant shall effect
service in accordance with the directions
contained in that order.
O.13 Rule 6. Court’s powers
(1) Where a directions hearing is convened under
Rule 5 and the applicant or any respondent fails
to attend, the Court may proceed in that party’s
absence or the Court may, on oral application
or its own motion, adjourn the hearing.
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(2) Upon consideration of an application, the Court
may make any other order to which the
applicant may be entitled notwithstanding that
such order has not been specifically applied for.
Such order may be made in addition to or in lieu
of the order sought by the applicant.
(3) The Court may in any order made under this
rule give such directions as it thinks just in
relation to the application or future conduct of
the proceedings.
O.13 Rule 7. Setting aside Court order
(1) A person who was not served with a copy of an
application notice before an order was made
under this Order, but claims to have been
adversely affected thereby, may apply to have
the order set aside or varied.
(2) An application under this rule must be made by
application notice within seven days after the
date on which the order came to the applicant’s
attention.
(3) The Court may set aside or vary any order on
such terms as it thinks just.
O.13 Rule 8. Costs on applications
(1) In making any order in respect of an
application, the Court may make such order as
to costs as it thinks just.
(2) If an order makes no mention as to costs then
costs in respect of the application will be
deemed to be costs in the cause.
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ORDER 14 : JUDGMENT IN DEFAULT OF DEFENCE
O.14 Rule 1. Application may be made ex parte
When a defendant has failed to file a defence within
the time limited:
(a) by Order 8, rule 3 or
(b) by any order made under Order 5, rule 1, or
(c) by an agreement made under Order 5, rule 3,
the plaintiff may, by ex parte application, enter final
judgment against that defendant.
O.14 Rule 2. Supporting documentation
(1) An application under rule 1 shall be made by
application notice supported by an affidavit
deposing to:
(a) the date and, where relevant, the
circumstances of service of the writ on
each defendant against whom judgment
is sought;
(b) the fact that no defence has been filed;
(c) any sum paid towards the debt claimed
since the writ was filed;
(d) the sum claimed in any case of liquidated
damages;
(e) the order sought in any case of
unliquidated damages.
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(2) The application notice is to be supported by a
draft judgment in default in Form 7, modified as
necessary.
(3) The application should not include any claim for
costs but the supporting bill of costs should be
lodged with the Court and served on the party
in default in accordance with Order 45, rule 4.
O.14 Rule 3. Entry of judgment
(1) Where the writ is endorsed with a claim for
liquidated damages only, the plaintiff may enter
judgment for a sum not exceeding that claimed
in the writ, and for costs.
(2) Where the writ is endorsed with a claim for
unliquidated damages only the plaintiff may
enter judgment for damages to be assessed,
and for costs.
(3) Where the writ is endorsed with a claim relating
to detention of goods the plaintiff may enter
judgment:
(a) for delivery of the goods to the plaintiff,
and costs, or
(b) for the value of the goods to be
assessed, and costs.
O.14 Rule 4. Setting aside judgment
(1) A judgment entered under rule 1 may be set
aside if the defendant satisfies the Court that:
(a) there was good reason for the failure to
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file a defence in time;
(b) there is an arguable defence; and
(c) the plaintiff will not suffer irreparable
injury if the judgment is set aside.
(2) Application notice under paragraph (1) shall be
supported by an affidavit.
O.14 Rule 5. Other defendants
When judgment has been entered under this order
against one or more defendants, the plaintiff may
proceed with the action against other defendants, if
any.
ORDER 15 : SUMMARY JUDGMENT
O.15 Rule 1. When summary judgment
available
This order applies to all actions except those:
(a) under the Companies Act 1995;
(b) in admiralty;
(c) for judicial review.
O.15 Rule 2. Grounds for application
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Where a writ and statement of claim have been
served on a defendant who has filed a defence, the
plaintiff may apply to the Court for judgment against
that defendant on the ground that:
(a) the defendant has no defence to the claim, or
any part of such claim, or
(b) the defendant has no defence to the claim or
any part of such claim save as to the amount of
damages.
O.15 Rule 3. Supporting affidavit
(1) An application notice under rule 2 shall be
supported by an affidavit:
(a) verifying the facts on which the claim, or
the part thereof to which the application
relates, is based; and
(b) stating that in the deponent’s belief:
(i) there is no defence to the claim, or
that part of the claim as the case
may be; or
(ii) that there is no defence to the
claim or that part of the claim, as
the case may be, save as to the
amount of damages.
(2) An affidavit under paragraph (1) may, unless
otherwise ordered by the Court, contain
statements of information or belief provided that
the sources and grounds thereof are stated.
O.15 Rule 4. Application to be on notice
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The application notice and a copy of the affidavit in
support (including any exhibits) shall be served on the
defendant not less than 10 clear days before the date
fixed for the hearing of the application.
O.15 Rule 5. Opposition to application
(1) A defendant may oppose an application made
under this order by affidavit or, by leave of the
Court, in some other manner.
(2) A defendant’s affidavit must state clearly what
the defence is, and what facts are relied upon
to support it.
(3) Unless otherwise ordered, a defendant’s
affidavit must be served on the plaintiff not less
than 2 clear days before the hearing of the
application.
O.15 Rule 6. Court’s powers
At the hearing of the application the Court may in
exceptional circumstances take further evidence on
oath, and may:
(a) adjourn the hearing and give any directions as
to the further conduct of the application;
(b) enter judgment for the plaintiff for all or part of
the subject matter of the application;
(c) give the defendant leave to defend the claim or
any part of it, either unconditionally or on such
terms as it thinks just; or
(d) dismiss the application.
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O.15 Rule 7. Counterclaim
Where the Court enters judgment on a claim, it may
stay execution of that judgment pending
determination of any counterclaim.
O.15 Rule 8. Court to give directions
Where the Court gives leave to defend the claim or
any part of it, it shall give directions as to the further
conduct of the action.
ORDER 16 : WITHDRAWAL AND DISCONTINUANCE
O.16 Rule 1. Leave required
(1) A party may not discontinue or withdraw any
part of a proceeding against any other party
without leave of the Court.
(2) An application for leave under this rule shall be
made by application notice and the Court may
grant leave on such terms as to costs or
otherwise as it thinks just.
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O.16 Rule 2. Defence may be withdrawn
without leave
(1) A defendant to an action may at any time,
without leave of the Court, withdraw a defence
or any part of it by serving notice to that effect
on the plaintiff.
(2) Where a defence is withdrawn in whole or in
part a Judge may, on the application of the
plaintiff, give such judgment and make such
order for costs as may be appropriate.
ORDER 17 : SECURITY FOR COSTS
O.17 Rule 1. When order can be made
Where on the application of a defendant to any
proceeding it appears to the Court that:
(a) the plaintiff is ordinarily resident out of the
jurisdiction, or
(b) the plaintiff may be unable to pay the costs of
the defendant if ordered to do so, or
(c) the plaintiff has not disclosed his true address
to the Court,
the Court may, if after having regard to all the
circumstances of the case it thinks just to do so, order
that all the action be stayed until the plaintiff gives
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security for the defendant’s costs of the proceeding in
such sum and in such manner as the Court may
determine.
O.17 Rule 2. Order may be varied or revoked
An order for security for costs may, upon application
be revoked, decreased, or increased at any time.
ORDER 18 : DISCOVERY AND INSPECTION OF
DOCUMENTS
O.18 Rule 1. Request for documents
(1) Every party to an action may, after the close of
pleadings, make a request in writing to any one
or more opposite parties to supply a list of the
documents which are or have been in that other
party’s possession, custody or power relating to
any issue between those parties.
(2) The party served with such a request shall,
within 21 days of service, file and serve a
complete list of such documentation.
O.18 Rule 2. List of documents
(1) A list of documents shall be in Form 8, and shall
list the documents in a convenient order,
describing them shortly.
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(2) If it is desired to claim that any document is
privileged from production the claim must be
made in the list stating concisely the grounds
for such claim.
O.18 Rule 3. Affidavit verifying documents
(1) Any party who has made a request under rule 1
may, at any time before the pre-trial conference
in the proceeding, give notice to the party
required to make such discovery requiring that
party to make an affidavit verifying that party’s
list of documents.
(2) Any party served with a notice under paragraph
(1) shall within 14 days after receipt of the
notice make and file an affidavit verifying that
party’s list of documents and serve a copy on
the party requiring such affidavit.
(3) An affidavit verifying a list of documents shall
be in Form 9.
O.18 Rule 4. Order for discovery
(1) On the application of any party required by rule
1 to make discovery, or of its own motion, the
Court may:
(a) order that the parties or any of them shall
make discovery of documents;
(b) order that the parties or any of them shall
make discovery of only such documents
as may be specified in the order; or
(c) if satisfied that discovery is not
necessary, either for disposing fairly of
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the action or for saving costs, dispense
with discovery by any party.
(2) Discovery shall be made under this rule by filing
and serving within the time period stipulated in
the Court order a list of documents verified by
affidavit as provided for in Forms 8 and 9.
(3) In the event of a party having to make
application for an order for discovery under this
rule because of the other party’s failure to
adequately comply with the provisions of rules 1
or 3, the Court may order the defaulting party to
pay the costs of the application for discovery, in
any event, in a fixed amount or on such other
basis as the Court deems appropriate.
O.18 Rule 5. Inspection
A party who has served a list of documents on any
party shall allow that party to inspect the documents
referred to in the list (other than those for which
privilege is claimed) and to take copies thereof.
O.18 Rule 6. Non-compliance
Notwithstanding the provisions of rule 4(3) if any party
fails to comply with the requirements of this Order the
Court may order the defaulting party to so comply
within a specified period, and in default may order
that the claim be dismissed or the defence struck out,
and that judgment be entered accordingly.
O.18 Rule 7. Production of documents
A party may be required to produce at the trial any
document referred to in that party’s list of documents.
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O.18 Rule 8. Non-party discovery
(1) The Court may in any case it deems
appropriate and on such terms as it deems just
make an order requiring a person who is not a
party to the proceeding to make discovery of
any relevant document(s),
(2) Application for an order under this rule shall be
made by application notice supported by an
affidavit describing the nature and relevance of
the document(s) and the basis for the
deponent’s belief that the document(s) is in the
custody or power of the person against whom
the order is sought.
(3) Any order made under this rule shall make
provision for the person against whom the order
is sought to be reimbursed by the applicant for
all costs and disbursements incurred in
complying with the order.
ORDER 19 : DIRECTIONS HEARINGS
O.19 Rule 1. To be convened upon filing of
defence
(1) When a defence is filed the Court shall require
all parties to the action to attend before a Judge
in Chambers for directions to be given for the
future conduct of the action.
(2) A directions hearing may be convened by order
or by a notice of directions hearing in Form 10.
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O.19 Rule 2. Further directions hearings
(1) A directions hearing under this order may be
convened at any other time the Court deems
appropriate.
(2) An overseas lawyer acting for a party shall
attend a directions hearing in person or arrange
for a local lawyer to attend as agent.
(3) Any party who wishes to make an application
for any order which may be made under these
rules shall, so far as reasonably practicable,
have the application dealt with at a directions
hearing.
(4) A party making an application under paragraph
(3) shall do so by filing an application notice
and the Court shall thereupon convene a
directions hearing.
O.19 Rule 3. Attendance at directions hearing
If a lawyer, receiving notice, fails to attend a
directions hearing at the appointed time then the
Court may make orders, including any order as to
costs, in absentia.
O.19 Rule 4. Procedure at directions hearing
At a directions hearing:
(a) every party shall give to the Court all such
information, and produce all such documents,
as the Court may reasonably require;
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(b) unless the Court for good reason otherwise
orders, all information and documents given or
produced shall be disclosed to all other parties
present;
(c) the Court may make any orders it thinks
necessary for the just, economical and efficient
disposal of the application or action;
O.19 Rule 5. Hearing not to be adjourned sine
die
A directions hearing may be adjourned from time to
time but shall not be adjourned sine die.
ORDER 20 : INTERROGATORIES
O.20 Rule 1. Leave required to issue
interrogatories
(1) The Court may on the application of any party
make an order:
(a) granting leave to serve on any other
party, (or, in the case of a party which is
a body of persons empowered to sue or
be sued in its own name, on a person
who is an officer or member of that body)
interrogatories relating to any issue
between the applicant and that other
party; and
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(b) requiring that other party or person, as
the case may be, to answer the
interrogatories on affidavit within such
period as the Court may specify.
(2) A copy of the proposed interrogatories shall be
served with the application notice.
O.20 Rule 2. Objection to answering
interrogatories
A person who objects to answering any interrogatory
shall file an affidavit in answer stating the ground of
objection.
O.20 Rule 3. Restriction on interrogatories
On the hearing of the application the Court shall give
leave for only such interrogatories as it considers
necessary for disposing fairly of the action or for
saving costs.
O.20 Rule 4. When interrogatories not
permitted
An interrogatory which does not relate to any issue
between the parties to the application shall not be
allowed although the question might be admissible in
cross-examination of a witness.
O.20 Rule 5. Inadequate answers
If a person on whom interrogatories have been
served answers any of them insufficiently, the Court
may order that person to make a further answer,
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either on affidavit or on oral examination.
O.20 Rule 6. Non-compliance with order for
interrogatories
If a party against whom an order is made under rule 1
fails to comply with it without good reason, the
Court may:
(a) order that person to be committed for contempt
of Court, or
(b) order that the claim be dismissed or, as the
case may be, the defence be struck out and
that judgment be entered accordingly.
O.20 Rule 7. Order may be varied or revoked
An order made under rule 1 may, for good reason, be
revoked or varied at any time before the trial of the
action commences.
ORDER 21 : ADMISSIONS
O.21 Rule 1. Admitting truth of pleading
Any party may at any time give notice, by pleading or
otherwise in writing, that the truth of any matter
pleaded by another party is admitted.
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O.21 Rule 2. Notice to admit
(1) Any party may, not less than 1 month before
trial, serve on any other party notice requiring
that party to admit, for the purpose of that
action only, such facts as may be specified in
the notice.
(2) If a party on whom such notice is served does
not admit the facts within 14 days after service
of the notice, the cost of proving those facts
shall be borne by the party unless the Court
otherwise orders.
(3) Where admissions of fact have been made
under this Order the Court may, upon the
application by any party, enter such judgment
or order as the party making application may be
entitled to upon those admissions without
waiting for any other issues between the parties
to be determined.
O.21 Rule 3. Admission as to documents
(1) Any party may, not less than 1 month before
trial, serve on any other party notice requiring
that party to admit the authenticity of the
documents specified in the notice.
(2) A party on whom such notice is served may
within 14 days after service notify the party by
whom it was given in writing that the
authenticity of any document specified in it is
not admitted.
(3) A party who does not give notice under
paragraph (2) shall be deemed to admit the
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authenticity of any document specified in the
notice unless the Court otherwise orders.
(4) If a party gives notice under paragraph (2) the
costs of proving any document not admitted
shall be borne by the party giving notice unless
the Court otherwise orders.
ORDER 22 : INJUNCTIONS
O.22 Rule 1. Form of application
(1) Any party may apply for an injunction at any
time, whether before or after the trial of an
action, and whether or not a claim for an
injunction has been formally pleaded.
(2) Application for an injunction shall be made by
application notice supported by an affidavit
stating the relevant facts.
(3) Except in cases of urgency or where the
application relates to a Mareva injunction, a
copy of the application and supporting affidavit
shall be served on the other party not less than
5 days before the hearing.
(4) In cases of urgency or where the application
relates to a Mareva injunction, application may
be made ex parte, and the Court may, upon the
applicant giving an undertaking in damages,
make such order as it thinks just.
(5) The undertaking in damages required of an
applicant under paragraph (4) shall be given by
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the applicant in writing and shall be filed at the
same time as the application for the injunction.
Such an undertaking may be a separate
document or it may be incorporated into the
affidavit of the applicant (if one is sworn by the
applicant, and if that is appropriate in the
particular circumstances).
(6) Subject to paragraph (7), an application for an
injunction shall not be made before the issue of
a writ.
(7) If the application is one of extreme urgency, the
Court may make an order upon the applicant
undertaking to issue a writ within a specified
time.
(8) The undertaking to issue a writ within a
specified time may be given in writing, in
advance, by the applicant’s lawyer by placing
such an undertaking at the foot of the
application for injunction and signing it.
O.22 Rule 2. Ancillary orders
(1) On the application of any party the Court may
make an order for the detention, custody or
preservation of any property which is the
subject matter of any action, or for the
inspection of any such property held by a party.
(2) The Court, upon being satisfied as to the
existence within the jurisdiction of property as
described in paragraph (1) may issue a
disclosure order to the injunction requiring a
party to disclose to the applicant the precise
form and whereabouts of such property.
(3) To give effect to any order made under
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paragraph (1) the Court may by order authorise
any person to enter upon any land or building in
the possession of any party.
(4) Where the right to a specified fund is disputed
in an action, the Court may, on the application
of any party, order that the fund be paid into
Court.
(5) An application notice under this rule shall be
supported by an affidavit, and the Court may
make an order on such terms as it thinks just.
O.22 Rule 3. Further directions
On the hearing of an application under this Order, the
Court may also give directions as to the further
conduct of the action.
ORDER 23 : PAYMENT INTO COURT
O.23 Rule 1. Time for making payment
In an action for debt or damages any defendant may
at any time pay into Court a sum of money in
satisfaction of the cause of action in respect of which
the plaintiff claims, or, where two or more causes of
action are joined in the action, in satisfaction of any or
all of those causes of action.
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O.23 Rule 2. Payment may be increased
A payment into Court may be increased at any time.
O.23 Rule 3. Notice of payment
On making or increasing a payment into Court the
defendant must give notice to the plaintiff and to any
other defendant and to the Court in Form 11, stating:
(a) whether the sum is paid in respect of:
(i) the whole claim, or
(ii) one or more separate causes of action
and, if so, specifying the sum paid in
respect of each such cause of action,
and
(b) if it be the case, that the sum paid in is
calculated after deduction of any sum
counterclaimed, and stating in respect of that
counterclaim the information required by
subparagraph (a).
O.23 Rule 4. Payment cannot be withdrawn
without leave
A notice of payment into the Court may not be
withdrawn or amended without leave of the Court,
which may be granted on such terms as it thinks just.
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O.23 Rule 5. Acceptance of payment
Where money is paid into Court under this Order the
plaintiff may, within 21 days after receipt of the notice
given under rule 3, but in any case before the trial
begins:
(a) accept the money paid into Court in satisfaction
of the whole claim, or
(b) where the money was paid in respect of only
some of the causes of action in respect of
which the plaintiff claims, accept the sum in
satisfaction of any such cause or causes of
action specified in the notice
by giving notice to the defendant and to the Court in
Form 12.
O.23 Rule 6. Consequences of acceptance
On the plaintiff accepting any money paid into Court:
(a) all further proceedings in the action or in
respect of the specified cause or causes of
action, as the case may be, shall be stayed
against all defendants sued in respect of the
same cause of action, and
(b) where the notice of payment stated that any
sum counterclaimed had been taken into
account, all proceedings in that counterclaim or
in respect of the specified cause or causes of
action, as the case may be, against the plaintiff
shall be stayed.
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O.23 Rule 7. Plaintiff’s entitlement upon
acceptance
A plaintiff who has accepted any sum paid into Court
in accordance with rule 5 shall be entitled:
(a) to have such sum paid out forthwith in
satisfaction of the relevant cause or causes of
action, and
(b) to recover costs of the action up to the date of
acceptance against the party who made the
payment into Court.
O.23 Rule 8. Consequences of non-acceptance
If money paid into Court is not accepted in
accordance with rule 5 the money shall not be paid
out except in pursuance of an order of the Court,
which order may be made on such terms as the Court
thinks just.
O.23 Rule 9. Trial Judge not to be informed of
payment
Except in an action in which a defence of tender
before action is pleaded, the trial Judge shall not be
informed of such payment until all questions of liability
and quantum have been decided.
O.23 Rule 10. Counterclaim
A plaintiff against whom a counterclaim is made and
any other defendant who is the subject of a notice to
other defendant may pay money into Court in
accordance with rule 1 and this order shall apply with
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any necessary modifications.
O.23 Rule 11. Registrar to invest payment
Money paid into Court under this order shall be
invested by the Registrar in an interest bearing
account.
ORDER 24 : OFFER "WITHOUT PREJUDICE SAVE AS
TO COSTS"
O.24 Rule 1. Form of offer
A party to a proceeding may at any time make to any
other party to the proceeding a written offer that:
(a) is expressed to be without prejudice save as to
costs; and
(b) relates to any issue in that proceeding.
O.24 Rule 2. Offer not to be communicated to
Court
The fact that such an offer has been made must not
be communicated to the Court until the question of
costs falls to be decided.
O.24 Rule 3. Court to determine relevance of
offer in relation to costs
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The effect (if any) that the making of such an offer
has on the question of costs is at the discretion of the
Court.
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HEARINGS AND TRIALS
ORDER 25 : TRIAL
O.25 Rule 1. Venue
An action may be tried at any place at which sittings
of the Court are authorised.
O.25 Rule 2. Pre-trial conference
(1) The Court shall upon the informal request in
writing of the plaintiff made to the Registrar at
an appropriate stage during the proceeding, or
of its own motion, convene a pre-trial
conference and give such directions as it
considers appropriate for the conduct of the
trial.
(2) A pre-trial conference shall take the form of a
directions hearing and shall be convened by
order or notice of direction.
(3) In the event of undue delay on the plaintiff’s
part in requesting a pre-trial conference under
rule (1), another party to the proceeding may
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invite the Court to convene such a conference
and the Court may act if it considers that the
invitation is appropriately made.
O.25 Rule 3. Form of trial
(1) Subject to paragraph (2), an action shall be
tried by a Judge alone.
(2) An action shall be tried by a Judge sitting with a
jury if any party so requests.
(3) If a request under paragraph (2) is given to the
Court at any time after the trial date has been
fixed the party making such request shall bear
the costs of any adjournment occasioned
thereby.
O.25 Rule 4. Separate trials
(1) The Court may order the separate trial of any
question or issue arising in an action, whether
of fact or law or mixed fact and law, and
whether or not it was raised on the pleadings.
(2) On making a decision on any question or issue
tried separately the Court may give final
judgment in the action if that decision
substantially disposes of the action or renders
further trial unnecessary.
O.25 Rule 5. Failure to appear at trial
(1) If neither party appears at the trial the action
may be struck out.
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(2) If one party fails to appear at the trial the Judge
may deal with the action and any counterclaim
in the absence of that party.
(3) Any judgment or order made in the absence of
a party may be set aside on the application of
that party on such terms as the Court thinks
just.
(4) Application under paragraph (3) shall be made
by application notice supported by affidavit and
filed not later than 14 days after the trial.
O.25 Rule 6. Adjournment
The Court may adjourn a trial to such time and place,
and upon such terms, as it thinks fit.
O.25 Rule 7. Procedure at trial
(1) The Judge may give directions as to which
party shall begin and the order of speeches.
(2) If the Judge gives no directions under
paragraph (1):
(a) the plaintiff shall begin and may make an
opening speech;
(b) if the defendant does not adduce
evidence then after all the evidence has
been given for the plaintiff, the defendant
shall state the case for the defendant and
the plaintiff may make a speech in reply;
(c) if the defendant proposes to produce
evidence after the evidence on behalf of
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the plaintiff has been given, then the
defendant may make an opening speech
and, at the close of the evidence, a
closing speech;
(d) after the defendant’s closing speech, the
plaintiff may make a speech in reply.
(3) Where a party who is entitled to make the final
speech raises in that speech any new point of
law or cites some authority not previously cited,
the opposite party may make a further speech
in reply but only as to that point of law or
authority.
O.25 Rule 8. Scene inspection
The Judge and any jury may inspect any place or
thing with respect to which any question arises at the
trial.
O.25 Rule 9. Exhibits
(1) The Clerk of the Court shall take charge of
every exhibit, number each exhibit
consecutively and prepare and keep a list of
those exhibits.
(2) Unless the Court otherwise orders, exhibits
shall be retained in the Court office for the
period within which any appeal may be lodged,
and, if an appeal is lodged, until the conclusion
of that appeal; and shall then be returned to the
parties who produced them.
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O.25 Rule 10. Recordings
(1) The Clerk of the Court shall take charge of
every audiotape recording of the evidence
given in a trial.
(2) Unless the Court otherwise orders, such
audiotapes shall be retained in the Court office
for a period of 60 days after completion of the
trial, after which period the recording may be
deleted.
O.25 Rule 11. Application of rules to hearings
other than trials
Subject to these rules and to any directions issued by
the Court, the provisions of Orders 25, 26, and 27
shall apply, with any necessary modification, to any
other hearing in a proceeding apart from trials.
ORDER 26 : ORAL AND EXPERT EVIDENCE
O.26 Rule 1. Facts to be proved by oral
evidence
Subject to the provisions of Order 27 and to any
statute relating to evidence, any fact required to be
proved at a trial shall be proved by oral evidence.
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O.26 Rule 2. Expert evidence
(1) Expert evidence may be adduced without leave.
(2) Unless otherwise ordered by the Court:
(a) a party who wishes to adduce expert
evidence shall, as soon as possible and
in any event not less than one month
before trial, serve a copy of the expert’s
report on every opposite party; and
(b) unless a copy of the report has been
served in accordance with subparagraph
(a) an expert witness shall not be allowed
to give evidence.
ORDER 27 : AFFIDAVIT EVIDENCE
O.27 Rule 1. When affidavit evidence permitted
(1) Subject to the provisions of this rule, the Court
may permit the evidence of any witness in a
proceeding to be given by affidavit.
(2) A party who wishes to adduce affidavit
evidence shall, not less than 14 days before
trial notify the opposite party in writing sending
a copy of that affidavit.
(3) A party served with notice under paragraph (2)
shall within 7 days after receipt of such notice
notify the other party of whether or not consent
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is given to the affidavit being used in evidence
and failure to do so shall be deemed to be
consent.
(4) A party who unreasonably fails to consent to
the use of affidavit evidence may be ordered to
bear the cost of attendance of the witness
whose affidavit was sought to be used.
O.27 Rule 2. Requirements for an affidavit
(1) An affidavit sworn in an action shall bear the
title and number of the action.
(2) An affidavit may be sworn by more than one
person.
(3) An affidavit shall be expressed in the first
person and, unless the Court otherwise directs,
shall state the occupation and residence of the
deponent; and if the deponent is employed by a
party that fact shall be stated.
(4) An affidavit shall be divided into paragraphs
numbered consecutively, each paragraph being
so far as possible confined to one matter.
O.27 Rule 3. Authority to take affidavits
(1) An affidavit shall be signed by the deponent
before a person authorised to take affidavits
(not being the deponent’s lawyer) who shall
complete and sign the jurat.
(2) Where an affidavit is sworn in a foreign country,
judicial notice may be taken of the seal or
signature of any Notary Public or other person
before whom the affidavit is sworn if in the jurat
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or body of the affidavit it is stated that such
person is lawfully authorised to administer
oaths in that country.
O.27 Rule 4. Certificate as to understanding
Where it appears to the person taking an affidavit that
the deponent is illiterate or blind, the person before
whom the affidavit is sworn shall certify in the jurat
that:
(a) the affidavit was read over to the deponent;
(b) the deponent appeared to fully understand it;
and
(c) the deponent’s signature or mark was made in
the presence of the person certifying.
O.27 Rule 5. Exhibits
Any document to be used in conjunction with an
affidavit shall be:
(a) identified in the affidavit by an exhibit letter or
number; and
(b) marked with that letter or number, and details of
the deponent and the date of the affidavit; and
(c) signed by the person taking the affidavit.
O.27 Rule 6. Contents of affidavit
(1) An affidavit for use at a trial shall contain only
such facts as would be admissible if the
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deponent were to give oral evidence.
(2) An affidavit filed in support of an application
notice may contain statements of information or
belief provided that the source and grounds
thereof are stated.
O.27 Rule 7. Cross-examination of deponent
(1) Any party desiring to cross-examine a deponent
who has sworn an affidavit on behalf of an
opposite party may serve on that opposite party
a notice in writing (which may be by letter
addressed to the opposite party’s lawyer)
requiring the production of the deponent for
cross-examination before the Court at the
hearing or trial.
(2) The notice shall be served, and copies thereof
filed in the Court and delivered to all other
parties who have taken any step in the
proceeding, not less than three clear days
before the day fixed for the hearing or trial.
(3) Unless the deponent is produced accordingly,
the affidavit shall not be used as evidence
except by the special leave of the Court.
(4) The party to whom the notice is given shall be
entitled to compel the attendance of the
deponent for cross-examination in the same
way as the deponent might be compelled to
attend as a witness to be examined.
O.27 Rule 8. Translations
If the affidavit is in any language other than English,
there shall be annexed thereto at the time of filing an
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English translation verified by the affidavit of an
interpreter.
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ENFORCEMENT ACTION
ORDER 28 : GENERAL PROVISIONS RELATING TO
JUDGMENTS AND ORDERS
O.28 Rule 1. Judgments to be signed and
sealed
Every judgment or order made by the Court shall be
drawn up by the Court, signed by or on behalf of the
Judge who made the order and sealed with the Court
seal.
O.28 Rule 2. Name of Judge to be shown
Every judgment or order shall bear the name of the
Judge who made it.
O.28 Rule 3. Date judgment takes effect
Unless otherwise ordered, a judgment or order shall
take effect from the date on which it was made.
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O.28 Rule 4. Service of judgments and orders
(1) A copy of every judgment or order shall be
served by the party who obtained it in
accordance with any directions issued by the
Court.
(2) Every judgment and enforcement order to be
served on a recipient in person shall have
attached a directions notice as provided for in
O.11 Rule 2.
O.28 Rule 5. Clerical mistakes may be
corrected
Clerical mistakes in judgments or orders, or errors
arising therein from any accidental slip or omission,
may at any time be corrected by the Court without an
appeal.
ORDER 29 : GENERAL PROVISIONS RELATING TO
ENFORCEMENT PROCEEDINGS
O.29 Rule 1. When leave is required to issue
enforcement proceedings
(1) No enforcement proceedings shall be issued
without leave of the Court if:
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(a) six years or more have elapsed since the
date of the judgment or order;
(b) any change has taken place, whether by
death or otherwise, in the parties in
whose favour or against whom the
judgment or order was obtained;
(c) it is sought to enforce a judgment against
a deceased person by process against
the deceased’s assets in the hands of the
executor or administrator; or
(d) it is sought to enforce judgment against a
partner in a firm against which judgment
was entered.
(2) Application for leave under paragraph (1) may
be made ex parte by application notice
supported by an affidavit setting out all relevant
facts.
(3) Where the Court grants leave under this rule
such leave shall lapse if proceedings are not
taken within 12 months from its grant.
O.29 Rule 2. Term of writ of enforcement
(1) Upon execution, a writ of enforcement shall be
deemed to have expired and any subsequent
seizure shall require application to be made for
the issuance of a fresh writ.
(2) A writ of enforcement is valid for 12 months
from the date of its issue.
(3) The Court may for good reason extend the
validity of a writ of enforcement from time to
time for any period not exceeding 12 months
from the date of its expiry.
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O.29 Rule 3. Priorities of writs of enforcement
Unless otherwise ordered by the Court:
(a) a writ of enforcement shall not be executed
before any similar writ issued on an earlier date
has been satisfied;
(b) where a writ of enforcement has been extended
under rule 2(3), it shall be deemed to have
been issued on the date when it was extended.
O.29 Rule 4. Withdrawal of enforcement action
(1) The party issuing a writ of enforcement may
withdraw the execution at any time by notice in
writing addressed to the Registrar and copied to
the bailiff or other enforcement officer.
(2) In every case where an execution is withdrawn,
satisfied, or stopped, the Court may order the
reasonably incurred costs incurred in the
execution process prior to the withdrawal to be
paid by the person issuing the writ of
enforcement.
O.29 Rule 5. Order of committal
(1) Where any person:
(a) required by a judgment or order to do an
act fails or refuses to do it within the time
specified by the Court; or
(b) disobeys a judgment or order not to do
an act;
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the judgment or order may be enforced by an
order of committal under Order 38.
(2) Subject to paragraph (3), a judgment or order
shall not be enforced under this rule unless:
(a) a copy of the judgment or order has been
served personally on the person to whom
it is directed; and
(b) if that person is required to do an act, the
copy has been served in time to allow the
person to comply with it; and
(c) the copy so served was endorsed with a
notice that if that person disobeys the
judgment or order then the defaulter may
be liable to committal or other execution
to compel compliance with its terms.
(3) Paragraph (2) shall not apply if the Court is
satisfied that the person against whom it is
sought to enforce the judgment or order is
aware of it by reason of that person’s presence
when it was made, or otherwise.
(4) The Court shall not, in the absence of special
circumstances, make a committal order to
enforce a judgment in respect of a debt unless
it is satisfied that the judgment debtor either has
or has had since the date of the order or
judgment the means to pay the sum in respect
of which default has been made and has
refused or neglected to pay the same.
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ORDER 30 : ENFORCEMENT OF JUDGMENT FOR
PAYMENT OF MONEY
O.30 Rule 1. Modes of enforcement
A judgment or order for the payment of money may
be enforced by one or more of the following means:
(a) writ of distress;
(b) garnishee proceedings;
(c) the appointment of a receiver;
(d) charging order;
(e) if Order 29, rule 5 applies, an order of
committal.
O.30 Rule 2. Judgment debt to carry interest
(1) Every judgment debt shall carry interest from
the time of judgment being given until the
judgment is satisfied.
(2) Unless the Court specifies otherwise, the
interest under paragraph 1 shall be at the rate
of 10% per annum.
(3) The interest may be levied under any execution
order upon judgment.
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ORDER 31 : WRIT OF DISTRESS
O.31 Rule 1. Form of writ of distress
A writ of distress shall be in Form 13.
O.31 Rule 2. Application for writ
(1) An application for a writ of distress shall be
made by application notice stating the manner
in which it is suggested the goods seized are to
be dealt with.
(2) On the application of the judgment debtor or the
judgment creditor, the Court may:
(a) direct that any property seized pursuant
to a writ of distress be sold in some
manner other than by public auction; and
(b) give directions as to the safe custody of
such property pending sale.
O.31 Rule 3. Execution of writ of distress
(1) A writ of distress shall be executed by a bailiff
as directed by the Court and in accordance with
the procedures prescribed in the Bailiffs Act
2000.
(2) Whenever application is made under rule 2 for
a direction that any properties seized should be
sold in some manner other than by public
auction, all necessary steps and the costs of
such steps will be the responsibility of the
applicant unless the Court orders otherwise.
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(3) Application may be made to the Court for
reimbursement out of the proceeds of sale for
costs properly incurred by the applicant.
(4) Whenever an alternative procedure is ordered
by the Court, the applicant shall inform the
bailiff of all steps in advance. The properties
seized will remain in the custody of the bailiff
pending disposal and will only be released on
order of the Court.
(5) Unless the Court otherwise directs, the total net
sum retained by the bailiff after execution of a
writ of distress is to be paid to the judgment
creditor.
(6) Upon execution, a writ of distress is deemed to
have expired and any subsequent seizure shall
require application for the issuance of a fresh
writ.
O.31 Rule 4. Stay of execution
(1) Subject to paragraph (2) the Court may, on
application by any person against whom a writ
of distress has been or may be issued, stay
execution on such conditions and for such
period as it may think just.
(2) The Court shall not stay execution under
subparagraph (1) unless satisfied:
(a) that there are special circumstances
which make it inexpedient to enforce
payment; or
(b) that the applicant is unable to pay the full
sum due.
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(3) An application under paragraph (1) may be
made:
(a) orally, when the judgment or order is
made, or
(b) by application notice supported by an
affidavit setting out the special
circumstances, or, if the applicant is
unable to pay in full, the affidavit must
disclose the applicant’s full financial
circumstances.
(4) An order made under this rule may be varied or
revoked on application by any party.
ORDER 32 : GARNISHEE PROCEEDINGS
O.32 Rule 1. When garnishee proceedings
available
Where:
(a) a judgment creditor has obtained a judgment or
order for the payment by a judgment debtor of a
sum of money exceeding $500, and
(b) some other person within the jurisdiction (in this
rule referred to as “the garnishee”) owes money
to the judgment debtor,
the Court may order the garnishee to pay to the
judgment creditor any sum (not exceeding the amount
owed by the garnishee to the judgment debtor) in full
or part satisfaction of the judgment debt and costs.
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O.32 Rule 2. Form of application
An application for an order under rule 1 shall be made
ex parte by application notice supported by an
affidavit:
(a) stating the name and last known address of the
judgment debtor;
(b) identifying the judgment or order to be enforced
and stating the amount unpaid;
(c) stating that the garnishee (naming the
garnishee) is believed to be within the
jurisdiction and to owe money to the judgment
debtor, showing the grounds for such belief;
and
(d) where the garnishee is a financial institution
having more than one branch, stating at which
branch the account is believed to be held.
O.32 Rule 3. Order to show cause
(1) An application under rule 2 shall be referred to
a Judge who may make an order to show cause
why the garnishee should not pay the sum
claimed and specifying a time and place for
further consideration of the matter.
(2) An order to show cause shall be in Form 14.
(3) Unless the Court otherwise directs, the order to
show cause shall be served on the garnishee
and the judgment debtor not less than 7 days
before the day appointed for further
consideration of the matter.
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(4) An order to show cause shall bind the debt
specified in the hands of the garnishee as from
the service of the order.
O.32 Rule 4. Garnishee may make payment into
Court
A garnishee who admits owing the judgment debtor
the amount specified or any lesser amount may pay
that amount into Court.
O.32 Rule 5. Orders on further consideration
On further consideration of the matter:
(a) if the garnishee does not attend or the Court is
otherwise satisfied that the garnishee owes the
judgment debtor the amount specified, the
Court may make an order absolute in Form 15.
(b) if the garnishee disputes owing the judgment
debtor the amount claimed the Court may
determine the matter summarily or order that it
be tried and give any necessary directions
therefore.
(c) if it appears to the Court that some other person
claims to be entitled to the debt sought to be
attached the Court may order that person to
attend and give particulars of such claim, and
may determine the matter summarily or order
that it be tried and give any necessary
directions therefore.
O.32 Rule 6. Effect of payment by garnishee
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Any payment made by a garnishee in compliance with
an order absolute under this Order shall be a valid
discharge of the garnishee’s liability to the judgment
debtor to the extent of the amount paid, even if the
garnishee order or the judgment or order on which it
is founded is subsequently set aside or reversed.
ORDER 33 : APPOINTMENT OF RECEIVER
O.33 Rule 1. Form of application for
appointment of receiver
Application for the appointment of a receiver to
enforce a judgment or order shall be made by
application notice supported by an affidavit:
(a) stating the name and last known address of the
judgment debtor;
(b) identifying the judgment or order to be enforced
and stating the amount unpaid;
(c) identifying the property in respect of which the
receiver is sought to be appointed; and
(d) naming the proposed receiver.
O.33 Rule 2. Service of application
Unless the Court otherwise orders, the application
notice shall be served on the judgment debtor not
less than 7 days before the hearing date.
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O.33 Rule 3. Court may give directions
An order for the appointment of a receiver may
include such directions as the Court thinks fit for the
giving of security by the person appointed.
O.33 Rule 4. Service of order
Within 7 days of the issuance from the Court of an
order appointing a receiver a copy of the order shall
be served by the party obtaining it on the judgment
debtor and on the receiver.
O.33 Rule 5. Receiver’s remuneration
The receiver shall be allowed such remuneration as
the Court may determine.
O.33 Rule 6. Receiver’s functions
(1) A receiver shall:
(a) promptly pay into Court all surplus
moneys received under the order, and
(b) submit such accounts at such intervals
as the Court may direct.
(2) A receiver may at any time request the Court
for directions by written request stating the
matters upon which directions are required.
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ORDER 34 : CHARGING ORDER
O.34 Rule 1. Purpose of charging order
A charging order shall provide a judgment creditor
with security, in whole or in part, over the property
and assets of the judgment debtor described in the
order.
O.34 Rule 2. Application for charging order
(1) An application for a charging order shall be
made ex parte by application notice supported
by an affidavit:
(a) stating the name and last known address
of the judgment debtor;
(b) identifying the judgment or order to be
enforced and stating the amount unpaid;
(c) giving full particulars of the subject matter
of the intended charge; and
(d) verifying that the interest to be charged is
owned beneficially by the judgment
debtor.
(2) An application may be made for a single
charging order in respect of more than one
judgment or order against the debtor.
O.34 Rule 3. Order to show cause
(1) An application under rule 2 shall be referred to
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a Judge who may make an order to show cause
why the interest of the judgment debtor should
not be charged to secure the amount unpaid,
and specifying a time and place for further
consideration of the matter.
(2) An order to show cause shall be in Form 16.
(3) Unless the Court otherwise directs, the order to
show cause shall be served on:
(a) the judgment debtor;
(b) if the subject matter of the charge is land,
the Minister of Lands; and
(c) any other person who would be affected
by the order;
not less than 7 days before the day appointed for
further consideration of the matter.
O.34 Rule 4. Procedure on further
consideration
On further consideration of the matter:
(a) the judgment creditor and the judgment debtor
(if the judgment debtor attends) shall be heard;
(b) the Minister of Lands shall be entitled to be
heard;
with leave of the Court, any other person affected by
the order may be heard; and the Court shall then
either make the order absolute, with or without
modifications, or shall discharge it.
O.34 Rule 5. Form of charging order
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A charging order absolute shall be in Form 17.
O.34 Rule 6. Service of order
Any order made shall be served on every person
required to be served under rule 3(3).
O.34 Rule 7. Order may be varied or discharged
On the application of the judgment debtor or any
other person interested in the property charged, the
Court may at any time discharge or vary the order on
such terms as it thinks just.
O.34 Rule 8. Enforcement
(1) A charging order may be enforced by the
appointment of a receiver and/or an order for
sale.
(2) Application for the enforcement of a charging
order shall be supported by an affidavit, which
shall be served on every party required to be
served under rule 3(3).
ORDER 35 : ENFORCEMENT OF JUDGMENT FOR
DELIVERY OF GOODS
O.35 Rule 1. Modes of enforcement of
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judgment
A judgment or order for the delivery of goods may be
enforced by one or more of the following means:
(a) writ of delivery;
(b) if Order 29, rule 5 applies, an order of
committal.
O.35 Rule 2. Form of writ of delivery
A writ of delivery shall be in Form 18.
O.35 Rule 3. Application for writ of delivery
Application for a writ of delivery shall be made by
application notice supported by affidavit.
O.35 Rule 4. Writ may include provision for
enforcing payment
A writ of delivery may include provision for enforcing
payment of any money payable (whether alternatively
to or in addition to delivery of property) by the same
person under the same judgment or order.
O.35 Rule 5. Duties of bailiff
The bailiff charged with execution of a writ of delivery
shall, in accordance with the directions contained in
the Court order and subject to the provisions of the
Bailiffs Act 2000:
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(a) seize the property ordered to be delivered and
convey it to a convenient place where it may be
collected;
(b) immediately after such seizure, give notice in
Form 19 to the Court and the person who
issued the warrant where and when it may be
collected; and
(c) if the property has not been collected within 14
days after such notice, seek the direction of the
Court as to whether the property should be
released to the person from whom it was
seized.
ORDER 36 : ENFORCEMENT OF JUDGMENT FOR
POSSESSION OF BUILDING
O.36 Rule 1. Modes of enforcement of
judgment
A judgment or order for the delivery or giving up of
possession of a building or dwelling-house may be
enforced by one or more of the following means:
(a) writ of possession;
(b) if Order 29, rule 5 applies, an order of
committal.
O.36 Rule 2. Form of writ of possession
A writ of possession shall be in Form 20.
O.36 Rule 3. Application for writ of possession
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An application for a writ of possession shall be made
by application notice supported by affidavit.
O.36 Rule 4. Writ may include provision for
enforcing payment
A writ of possession may include provision for
enforcing payment of any money payable (whether
alternatively to or in addition to giving up possession
of the building or dwelling-house) by the same person
under the same judgment or order.
O.36 Rule 5. Duties of bailiff
The bailiff charged with execution of a writ of
possession shall, in accordance with the directions
contained in the Court order and in pursuance of his
or her functions and powers under the Bailiffs Act
2000:
(a) seize the building or dwelling-house by way of
special seizure under section 8(1) of the Bailiffs
Act;
(b) report on the outcome of the special seizure by
promptly submitting to the Registrar a signed
acknowledgement in Form 1 of the schedule to
the Bailiffs Act.
(c) the bailiff shall require any person(s) in
occupation of the building or dwelling-house to
give up possession and vacate the premises
within 14 days or such other period as the Court
shall determine.
(d) if any person(s) in possession of the building or
dwelling-house fails to vacate the premises as
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directed by the bailiff under paragraph (c) then
the bailiff shall proceed to evict the person(s)
using such force as is reasonably necessary.
(e) upon request by any bailiff, a police officer shall
aid and assist in carrying out any eviction under
this Order.
(f) A bailiff shall promptly report to the Court on the
outcome of any eviction.
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SPECIAL PROCEDURES AND GENERAL
ORDER 37 : EXAMINATION OF JUDGMENT DEBTOR
O.37 Rule 1. Application for examination
(1) Where a party ("the judgment creditor") has
obtained a judgment or order for the payment
by some other party ("the judgment debtor") of
money, the Court may, on an application made
ex parte by application notice, order the
judgment debtor or, if the judgment debtor is a
body corporate, an officer thereof, to attend
before the Court and be orally examined as to
means.
(2) The application shall state whether the
examination is required to be recorded in which
case it shall be heard in open Court.
(3) An order under this rule must be served
personally on the judgment debtor and on any
officer of a body corporate ordered to attend for
examination and such person is entitled to
reasonable conduct money for attending to give
evidence.
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O.37 Rule 2. The examination
(1) The judgment debtor may be examined on the
questions:
(a) whether any, and if so what, debts are
owing to the judgment debtor, and
(b) whether the judgment debtor has any,
and if so what, property or means of
satisfying the judgment or order.
(2) The Court may also order the judgment debtor
or officer to produce any books or documents in
the possession of the judgment debtor relevant
to the questions in paragraph (1) at the time
and place appointed for the examination.
ORDER 38 : CONTEMPT OF COURT
O.38 Rule 1. Punishment for contempt of Court
The power of the Supreme Court or Court of Appeal
to punish for contempt of Court may be exercised by
an order of committal.
O.38 Rule 2. Contempt in face of Court
Where the contempt is committed in the face of the
Court, the Court may make an immediate order of
committal.
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O.38 Rule 3. Disobedience of Court order or
undertaking
(1) Where the contempt consists of disobedience
to an order of the Court or breach of an
undertaking to the Court application for leave to
apply for an order of committal shall be made
ex parte by application notice supported by an
affidavit stating:
(a) details of the order or undertaking;
(b) the name and address of the person
sought to be committed;
(c) the grounds upon which the committal is
sought.
(2) An order for committal may be sought against:
(a) the person in contempt if an individual, or
(b) where that person is a body of persons
capable of suing and being sued, or a
body corporate, any member or officer of
that body.
O.38 Rule 4. Procedure if Court grants leave
(1) If the Court grants leave to apply a summons
shall be issued which the applicant shall serve
upon the person sought to be committed,
together with a copy of the application notice
and affidavit not later than 7 clear days before
the hearing date.
(2) The Court may dispense with service of the
summons under paragraph (1) if it thinks it just
to do so.
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O.38 Rule 5. Hearing of application
(1) Unless the Court otherwise orders, the hearing
of an application for an order of committal shall
be in open Court.
(2) If the hearing is held in private and an order of
committal is made, the Court shall state in open
Court the name of the person committed, the
general nature of the contempt, and the period
of committal.
O.38 Rule 6. Enforcement may be suspended
The Court making an order of committal may direct
that enforcement of that order be suspended for such
period and on such terms as it may specify.
O.38 Rule 7. Committal on Court’s own motion
Nothing in this order shall affect the power of the
Supreme Court or Court of Appeal to make an order
of committal of its own motion.
ORDER 39 : JUDICIAL REVIEW
O.39 Rule 1. When remedy available
This order applies to any action against an inferior
Court, tribunal or public body (including an individual
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charged with public duties) in which the relief claimed
includes an order of mandamus, prohibition or
certiorari, or a declaration or injunction (in this order
referred to as “judicial review”).
O.39 Rule 2. Leave of Court required
(1) No application shall be made for judicial review
unless the leave of the Court has been obtained
in accordance with this rule.
(2) An application for leave to apply for judicial
review shall be made promptly and in any event
within three months from the date when
grounds for the application first arose unless
the Court considers that there is good reason
for extending that period.
(3) An application for leave shall be made ex parte
by filing:
(a) an application notice which is to set out
concisely the relief claimed and the
grounds therefore;
(b) a copy of the proposed writ and
statement of claim; and
(c) an affidavit verifying the facts relied on.
O.39 Rule 3. Court’s powers
(1) The Court may grant the application without a
hearing, but shall not refuse it without hearing
the applicant.
(2) The Court shall not grant leave unless satisfied
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that the applicant has a sufficient interest in the
matter to which the application relates.
O.39 Rule 4. Position if Court grants leave
If the Court grants leave:
(a) it may do so subject to such terms as to costs
and to giving security as it thinks fit, and
(b) it may grant such interim relief as appears
necessary and just.
ORDER 40 : HABEAS CORPUS
O.40 Rule 1. When the writ of habeas corpus is
available
This order applies to an application for an order for
the release of any person from unlawful or
unjustifiable restraint or detention (in this order
referred to as “a writ of habeas corpus”).
O.40 Rule 2. Mode of application
(1) Application for a writ of habeas corpus may be
made at any time on any day ex parte by way of
application notice supported by an affidavit by
the person restrained showing that it is made at
that person’s instance and setting out details of
the restraint.
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(2) Where the person restrained is unable to make
the affidavit required by paragraph (1) it may be
made by some person on the restrained
person’s behalf and the affidavit shall state the
reason why the person restrained is unable to
do so.
(3) An application for a writ of habeas corpus shall
have precedence over all other proceedings
before the Court.
O.40 Rule 3. Court may direct service
The Judge to whom the application is made may:
(a) order that a writ of habeas corpus be issued
forthwith; or
(b) direct that the application notice and affidavit be
served on any necessary party.
O.40 Rule 4. Service of application
Unless otherwise ordered by the Court, the
application notice together with copies of all affidavits
filed shall be served not less than 2 clear days before
the hearing date.
O.40 Rule 5. Directions to be given as to when
writ returnable
Where the Court orders that a writ of habeas corpus
be issued it shall give directions as to the time, date,
and place when the writ is returnable.
O.40 Rule 6. Form of writ of habeas corpus
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A writ of habeas corpus shall be in Form 21.
O.40 Rule 7. Service of writ
A writ of habeas corpus shall be served personally on
every person to whom it is directed:
Provided that if it is not possible to serve such a writ
personally, or if it is directed to the Superintendent of
Prisons or some other public official, it may be served
by leaving it with that person’s servant or agent at the
place where the person concerned is restrained or
confined.
O.40 Rule 8. Return of writ
Any person served with a writ of habeas corpus shall
make a return to the writ by endorsing on or annexing
to it a statement showing:
(a) whether the person concerned is restrained or
detained under the control of the person served
with the writ; and if so
(b) the justification therefore.
O.40 Rule 9. Hearing on return of writ
At the hearing on the return to the writ:
(a) the return shall be read;
(b) counsel for the person restrained shall be heard
and any affidavits filed on that person’s behalf
shall be read;
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(c) counsel for the person exercising such restraint
shall be heard and any affidavits filed on that
person’s behalf shall be read;
(d) counsel for the person restrained may reply;
and the Court shall then pronounce whether such
restraint or detention is lawful and may make such
consequential orders as it thinks fit.
ORDER 41 : RESEALING FOREIGN PROBATES
O.41 Rule 1. Application to be made ex parte
An application under section 39 of the Probate and
Administration Act (Cap 16) to reseal in the Court a
grant of probate or letters of administration issued by
a foreign court shall be made ex parte by way of
application notice.
O.41 Rule 2. Supporting affidavit required
The application for resealing shall be supported by an
affidavit sworn by the applicant satisfying the
evidentiary requirements of section 39 of the said Act.
O.41 Rule 3. The Court may require notification
to be given
The Court may upon further consideration require
notice of the application to be served on some other
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person or persons and may, if it thinks it appropriate,
convene a directions hearing.
O.41 Rule 4. The Court may impose conditions
The Court may impose such terms and conditions
regarding the resealing of the grant as it deems
reasonable.
ORDER 42 : PROCEEDINGS IN ADMIRALTY
O.42 Rule 1. Jurisdiction
Notwithstanding the enactment of the Civil Law
Amendment Act 2003, the Court shall continue to
exercise its inherent jurisdiction in relation to
Admiralty proceedings.
O.42 Rule 2. Rules and practice
(1) The procedure and forms provided under the
English Supreme Court Rules shall, with any
necessary and appropriate modification and
subject to these rules, continue to apply.
(2) Reference to the "Admiralty Marshall" in the
English rules shall be deemed to be a reference
to the Registrar.
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ORDER 43 : CHANGE OF LAWYER
O.43 Rule 1. Notice of a change of lawyer
(1) No order is necessary, but to make a change of
lawyer effective the party or the new lawyer
must file a notice of change of lawyer in Form
22 and serve a copy on the former lawyer and
every other party to the proceeding.
(2) If the party intends to act in person, notice
under Form 22 shall be modified accordingly.
O.43 Rule 2. Withdrawal of lawyer
(1) Where a lawyer who has acted for a party has
ceased to act and the party has not given notice
of change of lawyer under rule 1, the Court may
upon application make an Order granting leave
for the lawyer to withdraw from acting for the
party.
(2) Unless otherwise ordered by the Court, an
application under this rule may be made orally
or by a request in writing.
(3) Unless and until the party whose lawyer is
withdrawing either appoints another lawyer and
complies with rule 1 or, being entitled to act in
person, gives notice to that effect, then that
party’s last known address, or in the case of a
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body corporate, its registered office, shall be
deemed to be the address for service.
ORDER 44 : WITNESS SUMMONS
O.44 Rule 1. Request to be made to Registrar
Any party may in writing request the Registrar to issue
a summons for the examination of a witness and/or
for the production of documents without the leave of
the Court.
O.44 Rule 2. Form of witness summons
(1) A witness summons shall be in Form 23
modified as necessary.
(2) The names of two or more persons may be
included in the one summons.
O.44 Rule 3. Service of summons
A witness summons must be served personally and
service shall not be valid unless effected within 12
weeks after the date of its issuance and not less than
four days or such other period as the Court or
Registrar may fix, before the day on which attendance
before the Court is required.
O.44 Rule 4. Conduct money
(1) A person who has been served with a witness
summons in any civil proceeding is not
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compellable to comply with the order unless, at
the time of service or at some other reasonable
time before the date on which the person is
required to comply with the writ, a reasonable
sum in the form of conduct money to meet the
person’s reasonable expenses of complying
with the writ is tendered or paid to that person.
(2) Unless the Court orders otherwise, conduct
money shall be fixed in the amount of 5
pa’anga.
ORDER 45 : MEDIATION
O.45 Rule 1. Application of this Order
(1) This Order shall apply if at any time the Court is
satisfied that a suitably qualified person is
available to act as a mediator.
(2) A person is not eligible to be a mediator unless
this is justified by their experience as a
mediator or training in a recognised mediation
or training course.
O.45 Rule 2. Court may refer proceeding to
mediation
(1) At any stage of a proceeding the Court may,
with the consent of all parties, order that the
proceeding or any part of the proceeding be
referred to a mediation.
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(2) When making a reference under this rule, the
Court shall stipulate the time frame within which
the mediation should be progressed and be
finalised.
O.45 Rule 3. Reference not to operate as a stay
of proceedings
Unless the Court otherwise orders, a reference to
mediation shall not operate as a stay of the
proceedings nor shall it be cause for delay in getting
the case ready for trial.
O.45 Rule 4. Functions of mediator
(1) The mediator shall endeavour to assist the
parties to reach a settlement of the proceeding
or the part of the proceeding referred to
mediation.
(2) The mediator shall report to the Court:
(a) regularly on the progress of mediation; or
(b) if mediation is finished, on the nature of
the outcome; and
(c) where there is no agreement and shall
comment on the reasons for that.
(3) The mediator shall not make any report to the
Court other than a report under paragraph (2).
O.45 Rule 5. Procedure at mediation
(1) Unless all the parties who attend the mediation
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in writing agree, no evidence shall be admitted
in the Court proceeding of anything said or
done by any person at the mediation.
(2) Where an agreement is reached it shall be
reduced to writing and signed by the parties at
the mediation or later.
O.45 Rule 6. Costs in respect of mediation
(1) Unless the parties otherwise agree, the Court
may determine the remuneration of the
mediator, and by what party or parties and in
what proportion the remuneration is to be paid,
either in the first instance or finally.
(2) The Court may order any party to give security
for the remuneration of the mediator.
(3) Where the Court is satisfied that a party's
unreasonableness has led to no agreement the
Court may order that party to pay the costs of
the other party or parties on an indemnity basis.
ORDER 46 : TAXATION OF COSTS
O.46 Rule 1. Application of this Order
This Order applies whenever the Court is authorised
to determine the amount of costs payable by any
person.
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O.46 Rule 2. Costs to be assessed at
conclusion of trial if possible
If the Court makes any order for costs at the
conclusion of any trial or hearing in chambers it shall
if possible forthwith assess the amount of costs
payable under such order.
O.46 Rule 3. Costs to be taxed if not assessed
Where the Court is unable to assess costs under rule
2 such costs shall be taxed in accordance with this
rule.
O.46 Rule 4. Bill of costs to be lodged for
taxation
The party entitled to costs shall within 28 days after
the date of the order for costs lodge with the Court a
bill of costs showing brief details of, and the sums
claimed in respect of:
(a) the amount of time spent in preparation of
pleadings and general preparation for trial;
(b) the amount of time spent in Court;
(c) counsel’s fees; and
(d) any other disbursements.
O.46 Rule 5. Service of bill of costs
The party lodging the bill of costs shall cause a copy
to be served on the paying party.
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O.46 Rule 6. Objection to bill of costs
(1) If the paying party wishes to dispute any sum
claimed in the bill of costs, that party shall
within 14 days after service of the copy bill give
notice requesting an opportunity to be heard
accompanied by a statement setting out the
basic grounds of objection.
(2) If no notice is given under paragraph (1) within
the time limited, the Registrar shall upon
receiving a request in Form 24 from the party
lodging the bill of costs proceed to carry out
taxation.
(3) Upon taxation under paragraph (2) the
Registrar shall give the party lodging the bill of
costs the opportunity to be heard.
(4) If notice is given under paragraph (1) the
Registrar shall fix a time, date, and place when
the bill will be taxed and shall give not less than
14 days notice thereof to the parties.
O.46 Rule 7. Procedure on taxation
(1) On the appointment for taxation the Registrar:
(a) shall take into account any
representations made orally or in writing;
(b) may summon witnesses and examine
them on oath; and
(c) may make such other inquiries as the
Registrar thinks necessary;
(d) may adjourn an appointment for taxation
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from time to time and may reserve
making a decision.
(2) The Registrar’s decision upon taxation shall be
conveyed to the parties in a certificate of
taxation in Form 25 which shall have attached a
breakdown of the Registrar’s taxed figures.
(3) Where it appears upon taxation that an
objection to a particular item is frivolous or
otherwise an abuse of process, the objecting
party may be ordered to pay the other party’s
costs of the taxation hearing whether or not the
objecting party is successful on other grounds
of objection.
O.46 Rule 8. Referral to Judge
If any party so requests the bill of costs shall be taxed
by a Judge, in which case the provisions of rule 7
shall apply with any necessary modifications.
O.46 Rule 9. Appeal from decision of Registrar
(1) A party who is dissatisfied with the decision of
the Registrar on taxation may appeal to a
Judge.
(2) An appeal under this rule shall be made by
lodging concise written grounds of appeal within
14 days after the Registrar’s decision.
(3) On the hearing of the appeal the Judge may
exercise any of the powers set out in rule 7.
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O.46 Rule 10. Review of Judge’s decision
(1) A party who is dissatisfied with the decision of a
Judge on taxation may apply to that Judge to
review the decision.
(2) An application under this rule shall be made by
application notice filed within 14 days after the
Judge’s decision.
(3) The application notice filed under this rule shall
contain the objector’s concise written grounds
of objection.
(4) The opposite party may within 14 days after
service of objections lodge concise written
answers.
(5) On the hearing of the review the Judge may
receive further evidence and may exercise all
the powers available on the original taxation.
O.46 Rule 11. Taxation certificate
Upon completion of taxation, or of any appeal or
review, the Court shall issue a certificate of taxation in
Form 25.
ORDER 47 : ASSESSMENT OF COSTS
O.47 Rule 1. Application of this Order
This Order applies to costs payable by one party to
another under an order in civil proceedings.
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O.47 Rule 2. Allowance for costs
(1) There shall be allowed all such costs, charges
and expenses as are reasonably necessary or
proper for the attainment of justice or for
maintaining or defending the rights of any party.
(2) Unless there are exceptional circumstances
there shall not be allowed:
(a) any costs in respect of work done
prematurely and not subsequently
proving of use;
(b) any costs incurred or increased as a
result of negligence, mistake, or over-
caution;
(c) any unusual expense.
O.47 Rule 3. Solicitor — client costs
(1) This rule applies to costs payable by a client to
a lawyer.
(2) There shall be allowed all such costs, charges
and expenses as were incurred with the
express or implied approval of the client.
(3) Unless there are exceptional circumstances,
there shall not be allowed:
(a) any costs incurred or increased as a
result of negligence, mistake, or
overcaution;
(b) any unusual expense, unless the lawyer
obtained the express approval of the
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client to such expense before it was
incurred.
O.47 Rule 4. Practice directions relating to
costs
(1) Practice Note 2 of 1992, as amended by
Practice Direction No. 4 of 2003 and No. 5 of
2004, shall continue to apply in fixing allowable
costs and disbursements.
(2) The Chief Justice may from time to time issue
further practice directions revoking, amending
or replacing any one or more of those referred
to in paragraph (1).
O.47 Rule 5. Additional costs to be certified for
(1) Any party seeking to recover costs at a higher
rate than those provided for in the relevant
practice direction shall make application to a
Judge to have the higher rate certified for.
(2) Application for certification under this rule may
be made orally at a directions hearing or
informally by letter to the Registrar.
(3) In the absence of exceptional circumstances,
application under this rule must be made prior
to the hearing in respect of which the costs are
to be incurred.
(4) Additional costs may be certified as appropriate
under paragraph (1) upon special cause being
shown.
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ORDER 48 : REPEAL AND TRANSITIONAL
O.48 Rule 1. Court Rules
The Supreme Court Rules 1991 are hereby repealed.
O.48 Rule 2. Transitional
Notwithstanding the repeal of the Supreme Court
Rules 1991, any act which was properly done in
accordance with those Rules before they were
repealed and which can be validly done under these
Rules, shall be deemed to have been validly done
under these Rules.
O.48 Rule 3. Practice Directions
(1) Subject to rule (2), all Practice Directions issued
between 1 January 1992 and the coming into
effect of these Rules relating to the civil
jurisdiction of the Court are hereby revoked.
(2) The following Practice Directions remain in
force until cancelled or varied or replaced by
other Practice Direction:
No.2 of 1992 - Taxation of Costs - [1992]
Tonga LR 2
No.3 of 1993 - Application for Letters of
Adoption - [1992] Tonga LR 27
No.1 of 1994 - Senior Counsel - [1994]
Tonga LR 1
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No.3 of 1994 - Commissioner for Oaths -
[1994] Tonga LR 3
No.1 of 2000 - Filing of small civil claims
No.1 of 2003 – Supreme Court Case
Files Prefixes
No.3 of 2003 - Tonga Law Reports
No.4 of 2003 - Counsel’s Costs
No.1 of 2004 – Rules for the Production
of Documentary Exhibits
No.5 of 2004 - Taxation of costs
No.6 of 2004 - Applications out of
working hours and other urgent
applications
No.2 of 2005 - 48 hours notice of
Applications
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Form 1
(Writ of Summons) O.6 r.1
IN THE SUPREME COURT OF TONGA (Case number)
CIVIL JURISDICTION
Registry (state registry in which issued)
BETWEEN: (plaintiff)
(occupation and address)
Plaintiff
AND: (defendant)
(occupation and address if known)
Defendant
To the Defendant (name)
of (address)
THIS WRIT OF SUMMONS has been issued against you by the
above-named plaintiff whose claim is fully set out in the attached
statement of claim.
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TAKE NOTICE THAT
1. If you wish to defend the claim you must, within 28 days of
service of this writ on you, send to the Court a written
defence, stating concisely the grounds upon which you intend
to rely, and whether you require the case to be tried by a jury.
(A sealed copy must be served on each plaintiff).
2. If you fail to satisfy the claim or to file a defence within the
time stated, the plaintiff may obtain judgment against you
without further notice.
3. If the claim is defended the plaintiff *requires/does not require
the case to be tried by a jury.
(* delete as appropriate)
Issued this ……. (insert date) day of ……………….(insert month and
year)
Court Clerk / Registrar
[SEAL]
NOTE: This writ may not be served later than 12 months from its date
of issue unless renewed by order of the Court.
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Form 2
(Statement of Claim) O.8 r.2
[Heading as in Form 1]
The plaintiff claims
[set out concisely the nature of the plaintiff’s claim to the relief sought]
PARTICULARS
[Set out the particulars required under the rules to inform the Court
and the other parties of the plaintiff’s cause of action]
RELIEF
[Specify the relief or remedy sought]
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Form 3
(Notice to other defendant) O.8 r.5
[Heading as in Form 1 without occupations and addresses]
TO: The above named defendant, [full name]
Take notice that the above named defendant, [full name], claims
against you the following relief or remedy [set out the contribution or
indemnity or relief or remedy claimed].
The grounds on which the relief or remedy is sought are:
[State the nature and grounds of the claim]
If you dispute the claim, you may, within 10 days after the day on
which this notice is served upon you:
1) file in this office of the Court a statement of your defence to
the claim, and
2) serve a copy of that statement of your defence on --
(a) the above named defendant [full name]; and
(b) the plaintiff, and
(c) any other party who has filed an address for service.
Dated this [insert date] 20…. .
(Lawyer for) defendant
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Form 4
(Directions Notice) O.11 r.2
DIRECTIONS NOTICE
IMPORTANT
IF YOU DO NOT UNDERSTAND THIS DOCUMENT OR IF YOU
ARE UNCERTAIN WHAT IT REQUIRES YOU TO DO, YOU
SHOULD CONSULT A LAWYER OR SPEAK TO THE STAFF AT
THE SUPREME COURT REGISTRY AS SOON AS POSSIBLE AND
BEFORE YOU TAKE ANY FURTHER ACTION.
THE PERSON SERVING THIS DOCUMENT ON YOU CANNOT
GIVE YOU ANY LEGAL ADVICE.
FANONGONONGO FAKAHINOHINO
MAHU’INGA
KAPAU ‘OKU ‘IKAI MAHINO KIATE KOE ‘A E TOHI NI PE ‘OKU ‘IKAI
KE KE FAKAPAPAU’I ‘A E ME’A ‘OKU NE FIEMA’U KE KE FAI,
‘OKU TONU KE KE FETU’UTAKI KI HA LOEA PE ‘EKE KI HE KAU
NGAUE ‘I FAI’ANGA LESISITA FAKAMAAU’ANGA LAHI ‘I HE VAVE
TAHA PEA KI MU’A ‘I HA’O TOE FAI HA ME’A.
KOE TOKOTAHA ‘OKU NE TUFA ATU ‘A E TOHI NI KIATE KOE
‘OKU ‘IKAE NGOFUA KE NE ‘OATU ‘E IA HA FALE’I FAKALAO
KIATE KOE
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Form 5
(Certificate of Service) O.11 r.4
CERTIFICATE OF SERVICE
CASE NO. BETWEEN:
AND:
I, [print or type name in full and address] do hereby certify that at
AM/PM on [insert date] at [insert location]
I did serve the document(s) listed below on:
[name of persons served]
Whose identity I knew because [explain how the person served was
identified]
Signature:
Date:
Documents served: _____________________
_____________________
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Form 6
(Application Notice) O.13 r.1(1)
[General heading as in Form 3]
BETWEEN: Plaintiff/ Applicant/ Judgment Creditor
AND: Defendant/ Respondent/ Judgment Debtor*
(EX PARTE)** APPLICATION NOTICE
THE above named applicant hereby applies to the Court for an order
(a draft of which is attached) that:
[State clearly the terms of the order that the applicant is seeking]
UPON THE GROUNDS
[Set out the reasons why the order is sought. Include the material
facts on which the applicant relies, identifying any rule, statutory
provision or principle of law relied upon].
The applicant requests a hearing*.
The applicant requests that the application be dealt with without a
hearing**.
DATED this [insert date]
(Lawyer for) Applicant
TO: The Registrar
AND TO: [respondent(s)]
FILED BY: [set out in full name and address for service]
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* Delete as appropriate
** (include if application is being made on an ex parte basis)
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Form 7
(Draft judgment in default) O.14 r.2(2)
[Entitulment as in Form 3]
A.B. Plaintiff/ Judgment creditor
AND
C.D. Defendant/ Judgment debtor
BEFORE THE HON [Name the Judge]
AFTER CONSIDERING the plaintiff’s notice of application dated
[insert date] for judgment in default against the [identify the defendant]
AND the affidavit of [name the deponent] dated [insert date] , sworn
and filed in support AND IN RELIANCE upon Order 14 rule 1 of the
Supreme Court Rules 2007.
IT IS ORDERED:
1). Judgment is hereby entered for the plaintiff against [identify
defendant] in the sum of [insert details of order] together with
interest on the said sum at [insert interest rate] from the
[insert relevant date] down to the date of payment.
2). The plaintiff is to file and serve a bill of costs in accordance
with Order 45, rule 4.
3). A copy of this Order is to be served on the defendant by the
plaintiff within a period of 14 days of its issuance from the
Court.
NUKU’ALOFA: [insert date] Chief Justice/Judge
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Form 8
(List of documents) O.18 r.2(1)
[Heading as in Form 3]
To the defendant/plaintiff [name the party]
LIST OF DOCUMENTS
The following is a list of the documents relating to the issues in this
action which are or have been in the possession, custody or power of
the above named plaintiff/defendant [name the party] which is served
in compliance with:
* Order 18 rule 1
* the order made the day of 20
( * delete as appropriate)
1. The plaintiff/defendant has in the plaintiff’s/defendant’s
possession, custody or power the documents listed in
Schedule 1.
2. The plaintiff/defendant objects to produce the documents
listed in Part 2 of Schedule 1 on the grounds that:
[state grounds for objection]
3. The plaintiff/defendant has had, but has not now, possession,
custody or power of or over the documents listed in Schedule
2.
4. The date when and the circumstances in which the
documents ceased to be in the possession, custody or power
of the plaintiff/defendant are set out in Part 2 of Schedule 2.
5. Neither the plaintiff/defendant, nor that party’s lawyer, nor any
other person on the plaintiff ‘s/defendant’s behalf has now, or
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ever had, in their possession, custody or power any
document of any description relating to the issues in this
action except as listed in Schedules 1 and 2.
Schedule 1
Part 1
[List the relevant documents which the party does not object to
produce]
Part 2
[List the relevant documents which the party objects to produce]
Schedule 2
Part 1
[List the documents which the party no longer has in their possession,
custody or power]
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Part 2
[State when and in what circumstances the documents ceased to be
in the possession, custody or power of the party]
NOTICE TO INSPECT
The documents listed in Schedule 1 Part 1 may be inspected at [state
address] by prior arrangement during normal working hours.
DATED the …………. day of ………….. 20….
(Signed)
(Lawyer for) plaintiff/defendant
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Form 9
(Affidavit verifying list of documents) O.18 r.3(3)
[Heading as in Form 3]
I, [full name and other particulars] the above named [party], make
oath and say as follows:
The statements of fact made in paragraphs 1, 2, 3, and 4 of the list of
documents annexed hereto and marked "A" are true.
The statements made in paragraph 5 of the said list are true to the
best of my knowledge and belief.
SWORN at [place]
This [date]
Before me:
Authorised to take affidavits
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Form 10
(Notice of directions hearing) O.19 r.1(2)
NOTICE OF DIRECTIONS HEARING
FANONGONONGO ‘O E FAKAHINOHINO
IN THE SUPREME COURT OF TONGA No: ____________
‘I HE FAKAMAAU’ANGA LAHI ‘O TONGA Fika ‘o e
CIVIL JURISDICTION
MAFAI SIVILE
BETWEEN : Plaintiff
‘I he vahaá ‘o : Talatalaaki
AND
Defendant
Mo : Faka’iloa
TAKE NOTICE THAT THE ABOVE CASE HAS BEEN SET DOWN
FOR DIRECTIONS AT
Tokanga’i ko e hopo ‘i ‘olunga kuo fokotu’u ke Fakahinohinoi
[state Registry office] on the [insert date] 20 at [state time] before:
‘i he ‘aho taimi ‘i he
Hon Justice and you are required personally
Fakamaau ko pea ke ke ha’u tonu koe
to attend in Chamber at the said Court
ki he Fakahinohino i he Fakamaau’anga
Dated the ……………… day of ……………… 20….
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Faka’aho ‘o
(seal) Registrar
Failesisita
Clerk
Kalake
TO:
Kia
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Form 11
(Notice of payment into Court) O.23 r.3
[Heading as in Form 3]
TAKE NOTICE THAT
1). The defendant [name the defendant] has paid $[insert
amount] into Court.
2). The said sum is paid in satisfaction of:
∗• the whole claim
∗• the following causes of action, namely [identify causes of
action]
In respect of which the plaintiff claims [insert details of the amount
claimed by the plaintiff in respect of each such cause of action and
the corresponding amount paid by the defendant]
• and after taking into account and satisfying this defendant’s
counterclaim in respect of (insert details)
DATED the ………….. day of ……………. 20….
( * delete as appropriate)
(Lawyer for) defendant
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Form 12
(Notice of acceptance of money paid into Court) O.23 r.5
(Heading as in Form 3)
TAKE NOTICE THAT the plaintiff accepts the sum of $............ paid
into Court by the defendant [name defendant] in satisfaction of the
cause(s) of action against that defendant in respect of which it was
paid in [ * and the plaintiff’s other claims in this action are abandoned]
DATED the ……………. day of ………………. 20….
( * delete as appropriate)
(Lawyer for) plaintiff
To: The Registrar
And to: The defendant
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Form 13
(Writ of distress) O.31 r.1
[Heading as in Form 7]
To : the Bailiff Officer in Charge , [location]
WHEREAS in this action on the ……… day of ………….. 20… the
plaintiff/defendant [name the party] of [address] obtained judgment
against the defendant/plaintiff [name the party] of [address] and the
sum set out in the schedule below remains unpaid;
YOU ARE COMMANDED
Unless the amount shown in the schedule hereto is paid,
1). to seize the property of the defendant/plaintiff (except the
person’s house and fixtures, growing crops, and the clothes
of the defendant/plaintiff and that person’s family and tools of
trade up to a value of $200)*;
2). to sell the same by public auction (unless otherwise ordered
by the Court) and to pay the proceeds of such sale to the
Registrar of the Supreme Court;
3). if no such property can be found, to certify to that effect to the
Registrar of the Supreme Court.
Dated the ………… day of …………. 20…
Registrar of the Supreme Court
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SCHEDULE
Amount adjudged : $ ____________
Interest at …….% per annum from
date of judgment to date : $ ____________
Costs : $ ____________
Total debt : $ ____________
Less paid : $ ____________
Balance due : $ ____________
Costs of this writ : $ ____________
Total to be levied : $ ____________
* delete when party is a body corporate
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Form 14
(Garnishee order to show cause) O.32 r.3(2)
IN THE SUPREME COURT OF TONGA CV No.
CIVIL JURISDICTION
Registry [state Registry in which issued]
BETWEEN: AB Judgment Creditor
AND: C. D. Judgment Debtor
AND: E. F. Garnishee
BEFORE Hon Justice ………………….. in Chambers
UPON READING the judgment creditor’s application dated [insert
date] for an order to show cause and the affidavit of [name the
deponent] dated [insert date]
sworn and filed herein
IT IS ORDERED
1). That all debts due or accruing due from the garnishee to the
judgment debtor up to a sum of $.............. be attached to
satisfy:
(a) a judgment or order obtained by the judgment creditor
in this Court on the ……………….. day of
………………… 20…., on which judgment or order
the sum of $............ remains due and underpaid; and
(b) $............. for the costs of these proceedings.
2). The garnishee do attend before Hon Justice ……………… in
Chambers on the ………….. day of …………….. 20… at
............ a.m./p.m. to show cause why the garnishee should
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not pay to the judgment creditor the debt due from the
garnishee to the judgment debtor, or so much thereof as will
satisfy the judgment or order and the costs of these
proceedings.
[If the garnishee is a financial institution leave room for name of
branch] The judgment debtor’s account is believed to be held at the
branch of the garnishee; the account number is believed to be
…………………………………………………….
NUKU’ALOFA: [insert date]
SEAL Chief Justice/ Judge
NOTES:
1. This order must be served on the garnishee and the judgment
debtor.
2. This matter is governed by Order 32 of the Supreme Court
Rules.
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Form 15
(Garnishee order absolute) O.32 r.5(a)
[Heading as in Form 14]
UPON HEARING [name lawyer(s) appearing]
AND UPON READING the affidavit of [name the deponent] dated
[insert date] sworn and filed herein
And the order made the ………….. day of ………………. 20….
whereby it was ordered that all debts due or accruing due from the
garnishee to the judgment debtor up to a sum of $............. be
attached to satisfy:
(1) a judgment or order obtained by the judgment creditor in this
Court on the …………. day of ……………….. 20…, on which
judgment or order the sum of $........ remains due and
underpaid; and
(2) $......... for the cost of these proceedings;
after deducting the sum of $.............*
IT IS ORDERED that
[If the garnishee owes the judgment debtor more than the judgment
debt]
1. The garnishee do pay to the judgment creditor the sum of
$............ to satisfy the judgment or order and the costs of
these proceedings.
2. The garnishee be entitled to retain from the balance owed to
the judgment debtor the sum of $............ for the garnishee’s
costs of this application
or
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[If the garnishee owes the judgment debtor less than the judgment
debt]
1. The garnishee (after deducting the sum of $................ for the
garnishee’s costs of this application) do pay to the judgment
creditor the balance of the debt owed to the judgment debtor,
namely $................. in part satisfaction of the judgment or
order.
2. Out of the said sum of $................ the judgment creditor is to
retain the sum of $............ for the judgment creditor’s costs of
this application and the balance of $............ is to be credited
to the judgment debt.
NUKU’ALOFA: [insert date]
SEAL Chief Justice/ Judge
* include if appropriate
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Form 16
(Charging order — notice to show cause) O.34 r.3(2)
IN THE SUPREME COURT OF TONGA CV No.
CIVIL JURISDICTION
Registry [state Registry in which issued]
BETWEEN : AB Judgment Creditor
AND: CD Judgment Debtor
BEFORE HON JUSTICE in Chambers
UPON READING the plaintiff’s application dated the …………….. day
of ………………. 20… for a notice to show cause and the affidavit of
……………………….. dated the …………….. day of ……………….
20… sworn and filed in support whereby it appears that:
(1) by a judgment in this Court dated ………………….. the
judgment debtor was ordered to pay to the judgment creditor
the sum of $................. of which sum $................ remains
unpaid; and
(2) the judgment debtor has a beneficial interest in the asset
described in the schedule below;
IT IS ORDERED THAT:
1. Until the date given below the interest of the judgment debtor
in the said asset be charged with the payment of the sum due
under the judgment, together with the costs of this
application; and
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155
2. The judgment debtor do attend before Hon Justice
………………. in Chambers on the ………………. day of
………………….. 20… at ……….. a.m./p.m. to show cause
why the judgment debtor’s interest should not continue to be
so charged.
SCHEDULE
[Particulars of the asset to be charged]
Dated the …………… day of …………….. 20…
NUKU’ALOFA: [insert date]
SEAL Chief Justice/ Judge
Note:
This order must be served on the judgment debtor, the
Minister of Lands, (if the subject matter of the charge is land)
and any other person who may be affected by it.
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Form 17
(Charging order absolute) O.34 r.5
[Heading as in Form 16]
BEFORE HON JUSTICE …………….. in Chambers
UPON HEARING [Name lawyer(s) appearing]
AND UPON READING the affidavit(s) of ……………………….. dated
the …………..... day of ……………….. 20… sworn and filed in support
and the order to show cause made the …………….. day of
………………… 20…
IT IS ORDERED THAT:
The interest of the judgment debtor in the asset described in the
schedule below be charged with the payment of $................. being
the sum due under the judgment, together with $.......... for the costs
of this application which shall be added to the judgment debt.
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SCHEDULE
[Particulars of the asset charged]
NUKU’ALOFA: (insert date)
SEAL
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Form 18
(Writ of delivery) O.35 r.2
[Heading as in Form 16]
to : the Bailiff Officer in Charge, [location]
WHEREAS in this action on the ………………. day of …………………
20… the judgment creditor [name the party] of [address] obtained
judgment against the judgment debtor [name the party] of [address]
requiring the said defendant/plaintiff:
1. To deliver to the plaintiff/defendant the goods described in
Schedule 1 below, *(or in default to pay their value of
$..................); and
2. To pay to the judgment creditor damages and costs, and the
sum set out in *Schedule 2 below remains unpaid;
YOU ARE HEREBY COMMANDED
1. To seize the said goods, to deliver them to a
convenient place where they may be collected, and to
notify the Court and the said judgment creditor in
Form 19 where and when they may be collected;
And if you cannot obtain possession of the said
goods, and their value of $........... *(together with the
sum set out in Schedule 2) is not paid;
2. To seize the property of the judgment debtor except
the person’s house and fixtures, growing crops,
clothes of the plaintiff/defendant and that person’s
family and tools of trade up to a value of $200);
3. To sell the same by public auction (unless otherwise
ordered by the Court) and to pay the proceeds of
such sale to the Registrar of the Supreme Court;
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4. If no such property can be found, to certify to that
effect to the Registrar of the Supreme Court.
DATED the ……………. day of ……………….. 20.…
SEAL Chief Justice/ Judge
* delete as appropriate
SCHEDULE 1
[description of goods]
SCHEDULE 2
Amount adjudged : $ ____________
Interest at …….% per annum from
date of judgment to date : $ ____________
Costs : $ ____________
Total debt : $ ____________
Less paid : $ ____________
Balance due : $ ____________
Costs of this writ : $ ____________
Total to be levied : $ ____________
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Form 19
(Notice of execution of writ of delivery) O.35 r.5
[Heading as in Form 16]
To: the Registrar of the Supreme Court
And to: the judgment creditor [name the party]
TAKE NOTICE that
1. The writ of delivery issued in this action on the
………………… day of …………………. has been executed in
the following manner:
[state manner and result of execution]
*2. [The sum of $................. has been remitted to the Supreme
Court].
*3. [The goods ordered to be delivered may be collected within
14 days from
[state address from which goods may be collected]
during normal working hours; and if not collected within 14 days they
may be disposed of according to the direction of the Court.
DATED the ………………. day of ………………….. 20…
Bailiff Officer
[location]
* delete as appropriate
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Form 20
(Writ of possession) O.36 r.2
[Heading as in Form 16]
TO THE CHIEF BAILIFF, Tongatapu and ‘Eua District [insert different
district if appropriate]
GREETINGS
In these proceedings on [insert date] the judgment creditor obtained
an order for delivery against the judgment debtor [insert name]
requiring the said judgment debtor to deliver to the judgment creditor
the building/dwelling-house presently situated at:
[Insert full details of location of building/dwelling-house]
as ordered by the Court.
The judgment debtor has failed to comply with the said order for
delivery.
YOU ARE THEREFORE HEREBY COMMANDED:
1. To enter and carry out a special seizure of the said
building/dwelling-house in accordance with the provisions of
section 8 of the Bailiffs Act 2000.
2. If any person is in occupation of the said building/dwelling-
house you are authorised to allow them up to 14 days in
which to vacate the premises.
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YOU ARE ALSO COMMANDED to forward to the Registrar
immediately after execution of this writ a report in Form 1 of the
Schedule to the Bailiffs Act 2000.
NUKU’ALOFA: [insert date]
SEAL Chief Justice/ Judge
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Form 21
(Writ of habeas corpus) O.40 r.6
IN THE SUPREME COURT OF TONGA Application No.
CIVIL JURISDICTION
REGISTRY [state Registry in which issued]
IN THE MATTER OF:
[name of person restrained]
AND
IN THE MATTER of an application
for a Writ of Habeas Corpus
[Name of Reigning Monarch], by the grace of God, King:
To the Officer in Charge of our prison at [location] greeting:
YOU ARE COMMANDED to attend before the Hon Justice [name] at
the Supreme Court,
Nuku’alofa, on the ……………… day of …………………… 20… at
a.m./p.m.
AND THAT you do then have with you:
1. [ Name of person restrained] who is said to be detained in
your custody;
2. The authority for the person being taken and detained, by
whatsoever name the person may be called therein;
3. This writ; and
4. Your return to this writ;
So that our Court may then and there determine whether such
authority is legal.
AND TAKE NOTICE THAT in default you may be committed to prison
for your contempt in not obeying this writ.
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WITNESS THE HON JUSTICE …………………,
Judge of the Supreme Court of Tonga this …………………. day of
…………………… 20… .
SEAL Chief Justice/ Judge
This writ was issued by [ name]
of [address]
Note:
This matter is governed by Order 40 of the Supreme Court Rules, a
copy of which is attached.
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Form 22
(Notice of change of lawyer) O.43 r.1(1) and (2)
[Heading as in Form 1 — modified as necessary]
TAKE NOTICE that -
*the lawyer for the plaintiff (or defendant or third-
party) is now:
[name and address for service of the new lawyer].
*the plaintiff (or defendant or third-party) now acts in
person in
place of [name and address of previous lawyer].
DATED the ……………….. day of ……………………… 20… .
________________
Plaintiff or defendant or third party
[or the new lawyer]
To: the Registrar of the Supreme Court
and to: [name other party to the proceedings
* delete as appropriate
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Form 23
(Witness summons) O.44 r.2(1)
[to be printed in the Tongan language for all Tongan witnesses]
[Set out general heading to identify the proceeding]
To: (set out the name of the witness)
Of: (identify the location of the witness)
You are required to attend before the Supreme Court at ………………
(state relevant registry) on the …………. day of ………………..20… ,
at the hour of ……………. am/pm to give evidence on behalf of [name
the party]. You are entitled to be paid conduct money on service of
the summons in the sum of $5 pa’anga (or state any other amount
ordered by the Court)
TAKE NOTICE that is you fail to obey the summons you may be held
in contempt of Court and imprisoned for any term not exceeding eight
days.
DATED the ………………… day of ……………………… 20… .
(Seal) ___________________
Registrar of Supreme Court
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Form 24
(Request to tax bill of costs) O.46 r.6(2)
[on lawyer’s letter head]
To: The Registrar of the Supreme Court
NUKU’ALOFA
Re: (Cite name of parties and Court reference number)
REQUEST TO TAX BILL OF COSTS
The plaintiff’s/defendant’s* bill of costs in this proceeding was filed on
……………. day of ………………… 20… pursuant to the order of Hon
Justice …………… dated ………………. day of ……………… 20….
Service of the bill of costs on the plaintiff/defendant was effected on
the ……………….day of ………………. 20… as is evidenced by the
Certificate of Service filed on the ………………. day of
………………… 20….
To date no opposition to the plaintiff’s/defendant’s* bill of costs has
been received and no agreement as to costs has been reached. I
respectfully request taxation of my client’s bill of costs.
Signed
(Lawyer for party making the request)
* delete as appropriate
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Form 25
(Certificate of taxation) O.46 r.7(2)
O.46 r.11
[Heading as in Form 3 modified as necessary]
CERTIFICATE OF TAXATION
I hereby certify that pursuant to the Order of the Court made on the
…………………. day of ……………….. 20… , the costs of the
plaintiff/defendant have this day been taxed and allowed in the sum
of:
TOTAL AMOUNT ALLOWED ON TAXATION = $.........................
DATED: …………………….. day of ………………………… 20…
SEAL
(Signature of Registrar
or Judge as appropriate)
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DIVORCE RULES
Rules governing the procedure in divorce proceedings made by the
Chief Justice pursuant to section 23 of the Divorce Act (Cap 29)
Rule 1. Citation and commencement
Rule 2. Interpretation
Rule 3. Application of other Rules
Rule 4. Commencement of proceedings
Rule 5. Parties
Rule 6. Service of petition and other documents
Rule 7. Supplemental and amended petition
Rule 8. Pleadings
Rule 9. Particulars
Rule 10. Directions for trial
Rule 11. Trial
Rule 12. Certificate under Section 11(1) of the Act
Rule 13. Intervention by Attorney-General
Rule 14. Decree Absolute
Rule 15. Right to be heard
Rule 16. Application for custody, access or other
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relief
Rule 17. Other applications
Rule 18. Disability
Rule 19. Time
Rule 20. Repeal and Transitional
FORMS
Form 1 : Petition
Form 2 : Children Statement
Form 3 : Draft order for substituted service
Form 4 : Draft order for service out of jurisdiction
Form 5 : Decree Nisi
Form 6 : Certificate under section 11(1)
Form 7 : Affidavit for decree absolute
Form 8 : Decree absolute
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Rule 1. Citation and commencement
These rules may be cited as the Divorce Rules 2007
and shall come into operation on 1 January 2007.
Rule 2. Interpretation
"Act" means the Divorce Act (Cap 29);
"ancillary relief" means any relief sought under
sections 17 or 18 of the Act;
"application" and "application notice" have the
meanings set out in the principal rules;
"Court" means the Supreme Court of Tonga;
"child of the family" and "children of the family" have
the same meaning as "children of the family" in
Section 2 of the Act;
"children statement" means the statement referred to
in Rule 4(5);
"Judge" means the Chief Justice and any other Judge
of the Supreme Court;
"lawyer" means a law practitioner enrolled under the
Law Practitioners Act 1989;
"petition" includes a cross-petition;
"principal rules" means the Supreme Court Rules
2007;
"Registrar" has the meaning set out in the principal
rules;
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"Service Officer" means a police officer, bailiff or an
officer of the Court authorised to effect service of
documents.
Rule 3. Application of other Rules
Subject to the provisions of these Rules the practice
and procedure of the Supreme Court shall apply, with
any necessary modifications, to the commencement
and conduct of all proceedings for divorce, custody of
and access to children, and for ancillary relief.
Rule 4. Commencement of proceedings
(1) Proceedings for divorce shall be commenced
by petition.
(2) Every petition shall be substantially in the form
set out in Form 1.
(3) Every petition shall be signed by the petitioner
personally, or if the petitioner is under disability,
by a next friend who has been appointed under
Rule 18.
(4) Where there is before the Court a petition which
has not been dismissed or otherwise disposed
of by a final order, another petition by the same
petitioner in respect of the same marriage shall
not be presented without leave of the Court.
(5) There shall be filed with the petition a statement
("the Children Statement") signed by the
petitioner personally containing the information
set out in Form 2.
(6) A petition shall be presented to the Court by
filing:
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(a) the petition, together with as many copies
as there are persons to be served;
(b) unless otherwise directed on an
application made ex-parte, a certificate of
the marriage to which the petition relates;
(c) the children statement together with a
copy for service on the respondent;
(d) a certificate of birth in respect of each
child of the marriage.
(7) Where the petitioner is represented by a lawyer,
the name and full address for service of the
lawyer must be stated at the end of the petition.
(8) Where the petitioner acts in person the petition
shall be endorsed with that person’s address for
service.
Rule 5. Parties
(1) Where a petition alleges that the respondent
has committed adultery, every person with
whom the adultery is alleged to have been
committed (if still alive) shall be made a co-
respondent in the cause unless:
(a) the person is not named and the petition
states that his or her identity is not known
to the petitioner; or
(b) the Court otherwise directs on an
application made ex-parte before issue of
the petition.
(2) Where a petition alleges unreasonable
behaviour under Section (3)(1)(g) of the Act on
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the ground that the respondent has been guilty
of an improper association (other than adultery)
with a person named, the petitioner shall apply
to the Court at the time when the petition is
issued for directions whether such person
should be made a co-respondent in the cause.
Rule 6. Service of petition and other
documents
(1) Subject to the provisions of this rule, and unless
otherwise ordered by the Court, every petition
or other document lodged in Court shall be
served personally by delivering a sealed copy
to every other party.
(2) Every petition shall have attached a directions
notice as provided for in O.11 Rule 2 of the
principal rules.
(3) Service may be effected by a service officer or
by a lawyer or a lawyer’s employees. In no case
shall the petitioner effect service.
(4) When a lawyer has notified the Court that he or
she represents any party, service of any
document (other than a petition) on that party
shall be effected by delivering a copy thereof to
the lawyer.
(5) The person serving any petition or other
document shall forthwith complete and file a
certificate of service in accordance with Order
11, rule 4 of the principal rules. The filing of a
certificate of service shall be evidence that such
document was duly served as stated therein. In
the case of a petition, the certificate of service
shall make express reference to service of both
the petition and the directions notice.
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(6) If it appears to the Court that it is impracticable
for any reason to serve any petition or other
document personally, it may grant leave to
substitute some other form of service which
appears likely to bring that document to the
notice of the person to be served.
(7) If it appears to the Court that it is impracticable
to serve a party personally or by way of
substituted service, or it is otherwise necessary
or expedient to dispense with service of the
petition or any document on any party, the
Court may make an order dispensing with such
service.
(8) A petition and other documents may, with the
leave of the court, be served out of the
jurisdiction when the person to be served is
domiciled within that other jurisdiction.
(9) Application for an order under paragraphs (6) or
(7) shall be made ex parte by application notice
supported by an affidavit showing what steps
have already been taken to effect service and
stating the grounds of the application. The
applicant may be required to attend on the
application.
(10) Application for an order under paragraph (8)
shall be made ex parte by application notice
supported by an affidavit confirming the
address for service out of the jurisdiction and
the basis for the deponent’s knowledge that the
respondent resides at the address stated.
(11) The draft order to be attached to an application
notice filed under paragraph (9) shall be in
Form 3.
(12) The draft order to be attached to an application
notice filed under paragraph (10) shall be in
Form 4.
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Rule 7. Supplemental and amended
petition
(1) A petition may be amended without leave
before it is served but only with leave after it
has been served.
(2) A supplemental petition may be filed only with
leave.
(3) An application for leave under this rule shall be
made by application notice supported by an
affidavit.
(4) An order granting leave shall fix the time within
which any answer must be filed or amended.
(5) Unless otherwise directed, a copy of a
supplemental or amended petition, together
with a copy of any order made under this rule
shall be served on every party to the original
petition, and to the supplemental or amended
petition.
Rule 8. Pleadings
(1) Any party who wishes to defend a petition or to
dispute any facts alleged in it shall file an
answer.
(2) A respondent who wishes to seek a decree of
divorce may do so in the same suit by way of
cross-petition, which may be incorporated in the
answer if the respondent also wishes to defend
the petition.
(3) An answer and/or cross-petition shall be filed
within 28 days from the date of service of the
petition on the party filing it.
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(4) A petitioner may file a reply to an answer and/or
cross-petition within 14 days after being served
with a copy of it.
(5) If a reply to an answer is not filed, the petitioner
shall be deemed to deny every material
allegation of fact in the answer.
(6) If a reply to a cross-petition is not filed, the
petitioner shall be deemed to admit every
material allegation of fact in the cross-petition.
(7) No pleadings subsequent to a reply shall be
filed without leave.
(8) A party who files an answer, reply or other
pleadings shall file a copy for service on every
other party.
Rule 9. Particulars
(1) A party on whom a pleading has been served
may request the party whose pleading it is to
give particulars of any allegation or other matter
pleaded and, if that party fails to give such
particulars within a reasonable time, may apply
for an order that the particulars be given.
(2) A party giving particulars, whether or not
pursuant to an order, shall file a copy.
Rule 10. Directions for trial
(1) In the case of an undefended petition:
(a) The Court may list an undefended
petition for trial at any time after the time
for filing an answer has expired.
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(b) Notice of the hearing date shall be
served on all parties in such manner as
the Registrar shall direct.
(2) In the case of a defended petition:
(a) After the time for filing a reply has
expired, the Court shall list a defended
case for a directions hearing convened
by order or by a notice of directions
hearing in Form 10 of the principal rules
(modified as necessary).
(b) The Judge may give directions as to:
(i) the future conduct of the suit; and
(ii) the date and place of trial of the
suit; and
(iii) any application made for other
relief or for an order relating to a
child;
or may adjourn consideration of any such
matter to a later date.
Rule 11. Trial
(1) At the trial of a petition the Court may:
(a) if satisfied that a party is entitled to the
relief sought, grant that party a decree
nisi of divorce; or
(b) if not so satisfied, dismiss the petition or
adjourn the trial.
(c) if a decree nisi has been granted on the
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grounds of adultery, order a co-
respondent to pay damages to the
petitioner;
(d) whether or not a decree nisi has been
granted, make any appropriate order for:
(i) custody of or access to children of
the family;
(ii) costs.
(2) Any decree made at the trial shall be drawn up
by the Court in Form 5 and shall be served on
every party.
Rule 12. Certificate under Section 11(1) of
the Act
(1) If the Court has sufficient information at the trial
of the petition, a certificate under section 11(1)
of the Act may be granted immediately following
the decree nisi.
(2) If the Court does not grant a certificate at the
trial of the petition, the petitioner shall apply to
the Court for a certificate.
(3) The procedure for such application shall be by
way of application notice.
(4) At the hearing of such application the Court
may exercise any of its powers under sections
17, 18 and 19 of the Act.
(5) The Certificate shall be drawn up by the Court
in Form 6 and shall be served on every party.
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Rule 13. Intervention by Attorney-General
(1) When the Attorney-General wishes to show
cause against making the decree absolute
application shall be made to the Court ex parte
for leave to intervene.
(2) Such application shall be made by application
notice supported by an affidavit setting out the
material facts alleged.
(3) If the Court grants leave to intervene the
Attorney-General shall within 14 days after the
grant of such leave file his or her plea setting
out the grounds on which he or she seeks to
show cause and shall deliver a copy thereof to
the person in whose favour the decree was
pronounced and to any other party affected by
the decree.
(4) Subject to the following provisions of this rule,
these rules shall apply to all subsequent
pleadings and proceedings in respect of the
plea as if it were a petition.
(5) If no answer to the plea is filed within the time
limited, or an answer is filed but struck out or
not pursued, the Attorney-General may make
application forthwith for an order rescinding the
decree nisi and dismissing the petition.
Rule 14. Decree Absolute
(1) After six weeks have expired from the grant of a
decree nisi a party in whose favour it was made
may apply to the Court for the decree to be
made absolute.
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(2) After three months have expired from the grant
of a decree nisi, if the party in whose favour it
was made has not applied to the Court to make
the decree absolute, the party against whom
the decree was made may do so.
(3) Application under paragraph (1) or (2) of this
Rule shall be made by application notice
supported by an affidavit in Form 7.
(4) On receipt of such application, if the Registrar is
satisfied that:
(a) there is not pending an appeal, an
application for rescission of the decree or
for rehearing of the cause;
(b) the time for appealing against the decree,
and any extension thereof granted by the
Court, has expired;
(c) no intervention has been made by the
Attorney-General under section 11(2) of
the Act;
(d) where the decree was granted under
section 3(1)(f) of the Act, the Court has
granted a certificate under section 11(1)
of the Act;
then, subject to rule 16, the Registrar shall
issue a decree absolute in Form 8.
Provided that if the application is lodged more than 12
months after the decree nisi was made there shall
also be lodged a further affidavit giving reasons for
the delay:
(a) stating whether the parties have lived
together since the decree nisi, and if so,
between what dates;
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(b) stating whether the wife has given birth to
any child since the decree nisi, and if so
stating whether or not it is alleged that
such child may be a child of the family;
and such application shall be referred to a Judge who
may:
(a) make the decree absolute;
(b) refer the matter to the Attorney-General
to consider whether to intervene; or
(c) make such other order as the Court
thinks fit.
Rule 15. Right to be heard
(1) A respondent may, without filing an answer, be
heard on any question of:
(a) custody of, or access to, any child of the
family;
(b) the grant of a certificate under section
11(1) of the Act;
(c) ancillary relief;
(d) costs.
(2) A co-respondent may, without filing an answer,
be heard on any question of:
(a) damages;
(b) costs.
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Rule 16. Application for custody, access or
other relief
(1) Application for custody of, or access to a child,
or ancillary relief shall be made by way of
application notice (modified as necessary)
stating the precise nature of the relief sought.
(2) An application notice under this rule shall be
supported by an affidavit.
(3) In the case of custody or access, the supporting
affidavit shall set out:
(a) the present arrangements for custody or
access in respect of each child in respect
to whom the application relates;
(b) the grounds upon which any material
change in those arrangements is
proposed; and
(c) if custody is claimed, the proposed
arrangements for the care of each such
child if custody is granted to the
applicant.
(4) In the case of ancillary relief, the supporting
affidavit shall set out:
(a) full details of the applicant’s income and
capital; and
(b) such details as are known of the
respondent’s income and capital.
(5) The application notice and affidavit in support
shall be filed together with as many copies as
there are persons to be served.
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(6) A respondent to an application under this rule
shall, within 14 days after service on him or her
of the summons and affidavit, file an affidavit in
reply giving the like information as is set out in
paragraphs 3 or 4 of this rule (as the case may
be) with as many copies as there are persons
to be served.
(7) At the request of any party the Registrar shall
list the application for directions by a Judge,
who may make such further directions as is
sought, or list the application for hearing.
(8) The application shall be heard in chambers.
Rule 17. Other applications
Any other application in the course of a suit shall be
made to a Judge by application notice supported by
an affidavit.
Rule 18. Disability
(1) In this rule “a person under disability” means:
(a) an "incapacitated person" under the
principal rules, or
(b) a person under the age of 21 years.
(2) A person under disability may commence and
prosecute proceedings by his or her next friend
and may defend proceedings by his or her
guardian ad litem.
(3) No step shall be taken in any proceedings by a
person under disability until his or her next
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friend or guardian ad litem (as the case may be)
has filed the following documents with the
Court:
(a) a written consent to act by the proposed
next friend or guardian ad litem;
(b) a certificate by the lawyer representing
the person under disability:
(i) that the lawyer knows or believes
that the person to whom the
certificate relates is a person under
disability, stating the grounds for
such knowledge or belief;
(ii) that the person named in the
certificate as next friend or
guardian ad litem has no interest in
the cause in question adverse to
that of the person under disability,
and that he or she is a proper
person to be next friend or
guardian ad litem.
(4) Where a petition, answer or application notice
has been served on a party who appears to be
a person under disability, the party at whose
instance the document was served shall, before
taking any further step in the proceedings,
make application to a Judge for directions as to
whether a guardian ad litem should be
appointed to act for that person.
(5) If, at a directions hearing, the Judge considers it
necessary to protect the interests of the person
served, the Court shall order that some proper
person be appointed his or her guardian ad
litem.
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Rule 19. Time
(1) The Court may, on such terms as it thinks just,
order that the time within which a person is
required or authorised to do any act in any
proceedings be extended or abridged.
(2) The time within which any person is required by
these rules, or by any order of the Court, to
serve, file or serve, file or amend any pleading
may be extended by consent given in writing
without an order of the Court.
(3) Unless otherwise ordered by the Court, when
the time for doing any act expires on any day
when the Court office is closed, the act shall be
in time if done on the next day on which that
office is open.
Rule 20. Repeal and Transitional
(1) The Divorce Rules 1991 are repealed.
(2) Notwithstanding the repeal of the Divorce Rules
1991, any act which was properly done in
accordance with those rules before they were
repealed and which can be done under these
rules is deemed to have been validly done
under these rules.
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Form 1
(Petition) R 4(2)
IN THE SUPREME COURT OF TONGA
DIVORCE JURISDICTION Case No
Registry (name of registry in which petition issued)
BETWEEN: A. B. of [state locality]
Petitioner
AND: C. D. of [state locality]
Respondent
AND: E. F. of [ state locality if known]
Co-Respondent
To: The Supreme Court of Tonga
The petition of [full name of petitioner) shows that:
1. On the ………. day of …………… 20…. the petitioner was
lawfully married to the respondent [full name of respondent] at
[state place of marriage].
2. After the said marriage the petitioner and the respondent lived
together as husband and wife at [state last address at which
the parties so lived].
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3. The petitioner now lives at [state address where the petitioner
lives] and the respondent now lives at [state address where
the respondent lives].
4. The petitioner is domiciled in Tonga. [or if it is alleged that the
court has jurisdiction by virtue of section 20 of the Act, state
the relevant circumstances].
5. There are children of the family now living, namely: [list
names of children, giving dates of birth].
6. There are and have been no previous proceedings in any
court in Tonga or elsewhere with reference to the marriage
and any children of the family except [give details of any such
proceedings].
7. The grounds upon which the decree is sought are [state the
grounds fully].
THE PETITIONER THEREFORE PRAYS:
[Delete as appropriate]
(1) that the said marriage be dissolved;
(2) that custody of the said child(ren) of the family be granted to
the petitioner/ respondent;
(3) that the co-respondent do pay to the petitioner damages in
respect of the said adultery;
(4) that the respondent (and co-respondent) to pay the
petitioner’s cost of this suit.
Dated the …… day of …………….. 20…. .
_______________
Petitioner
The petitioner’s address for service is: [state full address for service. If
the petitioner is represented by a lawyer, the name and full address
for service of the lawyer is to be shown]
NOTICE TO THE RESPONDENT (AND CO-RESPONDENT)
A respondent or co-respondent who wishes to defend this petition, or
to dispute any facts alleged in it, or a cross petition, is required to file
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an answer and/or cross petition in the Supreme Court office within 28
days after service of this petition.
If no such step was taken within that period this petition may be listed
for trial undefended.
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Form 2
(Children Statement) R 4(5)
[Heading as in Form 1]
A. * There are no children of the family.
B. * The proposed arrangements for the children of the family
who are ordinarily dependent on the parties are as follows:
[State in respect of each child]
(1) Residence [State where the child is living at the date of the
petition and where the child is to live with a description of the
accommodation, what other persons live there (naming them
and their relationship to the child) and who will look after the
child]
(2) Education [State the educational arrangements as at the date
of the petition and the school or other establishment where it
is proposed the child will study or train in the future]
(3) Financial Provision [State who is at present supporting the
child and whether any change is proposed or expected]
(4) Access [State what arrangements are agreed or proposed for
the other parent to see the child]
(5) Health [State whether the child is suffering from any serious
disability or illness]
Dated the …… day of …………….. 20…. .
Petitioner
[*Delete A or B as appropriate]
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Form 3
Draft order (for substituted service *) R. 6(9)
[Heading as in Form 1]
BEFORE THE HON CHIEFJUSTICE/JUSTICE [insert name of Judge]
HAVING CONSIDERED the plaintiff’s ex parte application notice
dated [insert date] 20…., for an order granting leave to allow
substituted service on the respondent/co-respondent (delete as
applicable) of the petition and other documents AND the affidavit of
the petitioner [or name deponent] dated [insert date] sworn and filed
in support AND PURSUANT to Rule 6 (6)/(7) of the Divorce Rules
2007
IT IS ORDERED THAT:
1. The petitioner is granted leave to serve the petition and other
documents in this cause on the respondent/co-respondent
(delete as applicable) by personal service upon [insert
relevant details]
2. The respondent/co-respondent (delete as applicable) shall
have 42 days from the date of service in which to file an
answer or cross petition.
3. A copy of this order is to be served together with the petition.
NUKU’ALOFA: [insert date]
SEAL Chief Justice/Judge
(delete as applicable)
*This form is to be adapted if the order is sought under Rule 6(7)
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Form 4
Draft order for service out of the jurisdiction R.6(10)
[Heading as in Form 1]
BEFORE THE HON CHIEF JUSTICE/JUSTICE [insert name of
Judge]
HAVING CONSIDERED the petitioner’s ex parte application for an
order granting leave to serve the petition and other documents on the
respondent/correspondent (delete as applicable) out of the jurisdiction
AND the affidavit of [name of the deponent] dated [insert date] sworn
and filed in support AND PURSUANT to Rule 6(10) of the Divorce
Rules
IT IS ORDERED THAT:
1. Leave is granted to the petitioner to serve the petition and
other documents in this cause on the respondent/co-
respondent (delete as applicable) out of the jurisdiction by
registered air mail post addressed to the respondent/co-
respondent (delete as applicable) at the following address:
[insert address out of the jurisdiction]
2. The respondent/co-respondent (delete as applicable) shall
have 42 days from the date of postage in which to file an
answer or cross petition.
3. A copy of this order is to be served together with the petition.
NUKU’ALOFA: [insert date] 20….
CHIEF JUSTICE/JUDGE
(delete as applicable)
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Form 5
(Decree Nisi) R. 11(2)
[Heading as in Form 1]
UPON HEARING
IT IS ORDERED THAT:
1. The marriage solemnised on the ……….. day of ……………
20…. at …………… between the petitioner and the
respondent be dissolved unless sufficient cause be shown to
the court within six weeks why this decree should not be
made absolute.
*2. Custody of the child(ren) of the family [names and dates of
birth] be granted to the petitioner/ respondent.
*3. The co-respondent to pay to the petitioner $ ……. damages
for adultery.
*4. The [party] do pay the costs of the [party].
Dated the …… day of …………….. 20…. .
SEAL
(*Delete as appropriate)
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Form 6
(Certificate under Section 11(1)) R 12(5)
[Heading as in Form 1]
BEFORE HON JUSTICE (*in chambers)
UPON HEARING
AND UPON READING
In accordance with section 11 (1) of the Divorce Act IT IS CERTIFIED
that:
* proper financial provision has been made
* no financial provision should be made
For the petitioner/respondent and for any child(ren) of the family AND
that the decree nisi granted to the petitioner on [date] may be made
absolute upon expiry of six weeks from [date of decree nisi]
Dated the …… day of …………….. 20…. .
SEAL
(*Delete as appropriate)
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Form 7
Sipinga 7
(Affidavit for decree absolute) R. 14(3)
(Fuakava ki he tu’utu’uni vete faka’osi)
IN THE SUPREME COURT IN OF TONGA Case No
‘ I HE FAKAMAAU’UNGA LAHI ‘O TONGA
DIVORCE JURISDICTION
MAFAI VETE MALI
NUKU’ALOFA REGISTRY
FAI’ ANGA LESISITA NUKU’ ALOFA
BETWEEN: __________________
‘I HE VAHA’ A ‘O
Petitioner
Talatalaaki
AND: __________________
PEA MO
Respondent
Faka’ iloa
AND: __________________
PEA MO
Co-respondent
Kaunga Faka’ iloa
I, _____________________ the petitioner/respondent in this cause
make oath and say as follows:
Ko au ___________________ Ko e talatalaaki/faka’iloa ‘i he me’a ni,
oku ou fuakava ‘o pehe:
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1. On the ………. day of ……………. 20…., this Court granted a
decree nisi.
‘I he ‘aho …………..’o ……………. 20…., na’e foaki ai ‘e he
Fakamaau’anga ni ‘a e tu’utu’uni vete fakataimi.
2. Since the date of the decree nisi I have not lived with the
respondent/petitioner.
Talu ‘a e ‘aho ‘o e tu’utu’uni vete fakataimi ‘oku te’eki ke ma
nonofo moe faka’iloa/talatalaaki.
3. No action has been taken by the Attorney-General in
opposition to the decree being made absolute.
Na’e te’eki ai ke fai ‘e he ‘Ateni Seniale ha ngaue ‘o fakafihi ki
he tu’utu’uni ke hoko ko e tu’utu’uni vete faka’osi.
4. I apply for the decree to be made absolute.
‘Oku ou kole ke fakahoko ‘a e tu’utu’uni vete faka’osi.
SWORN at ______________
NA’E FUAKAVA ‘I ‘I
the ..…………. day of ………….. 20….Petitioner/Respondent
‘i hono ‘aho………..’o ……………… 20….Talatalaaki / Faka’iloa
Before me:
‘I hoku ‘ao:
Registrar of the Supreme Court
Fai Lesisita ‘o e Fakamaau’anga Lahi.
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Form 8
Sipinga 8
(Decree Absolute) R. 14(4)
(Tu’utu’uni Vete Faka’osi)
IN THE SUPREME COURT OF TONGA Case No.
‘I HE FAKAMAAU’ANGA LAHI ‘O TONGA Hopo Fika
CIVIL JURISDICTION
MAFAI SIVILE
NUKU’ALOFA REGISTRY
FAI’ANGA LESISITA NUKU’ALOFA
BETWEEN: __________________
‘I HE VAHA’A
Petitioner
Talatalaaki
AND: ____________________
MO
Respondent
Faka’iloa
WHEREAS by a decree made in this cause on the …………… day of
…………….. 20….
KO E ‘UHI ko ha tu’utu’utu’uni na’e fai ‘i he Hopo ni he ‘aho
……………. ‘o ………………… 20….
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it was ordered that the marriage solemnised on the…………… day of
…………….. 20….
na’e fekau’i ai ko e mali koia na’e fakahoko he ‘aho……………. ‘o
………………… 20….
between the petitioner and the respondent be dissolved unless
sufficient cause be shown
‘i he vaha’a ‘o e talatalaaki mo e faka’iloa ‘e vete leva ia tukukehe ka
fakaha mai
to the court within six weeks from the date thereof why such decree
should not be made
ki he Fakamaau’anga ‘i loto he uike ono (6) ha ‘uhinga fe’unga ke
ta’efakakakato ai,
absolute, and no such cause has been shown:
pea ko e ‘uhi ‘oku te’eki ai fakaha mai ha ‘uhinga pehe:
IT IS HEREBY CERTIFIED that the said decree was on the
…………….. day of ………………… 20….
‘OKU FAKAMO’ONI’I HENI ko e tu’utu’uni koia na’e fakahoko ia he
‘aho …………….. ‘o …………….. 20….
made final and absolute and that the marriage was thereby dissolved.
ko e tu’utu’uni faka’osi mo kakato pea ko e mali ni kuo vete.
Dated the ……………….. day of ………………. 20….
Fai he ‘aho ……………… ‘o ………………… 20….
REGISTRAR
Falesisita
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LAND COURT RULES
Rules for regulating the practice and procedure of the Land Court
made by the Chief Justice pursuant to section 168 of the Land Act
(Cap 132) and approved by the Privy Council.
ORDER 1. CITATION
1. Title and commencement
ORDER 2. APPLICATION
1. Land Court proceedings
2. Supreme Court rules
ORDER 3. INTERPRETATION
1. Interpretation Act
2. Meanings
ORDER 4. COMMENCEMENT OF PROCEEDINGS
1. Action commenced by filing writ
ORDER 5. SERVICE OUT OF THE JURISDICTION
1. Service where party is out of the jurisdiction
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ORDER 6. DISPOSAL OF ACTION
1. Conduct of trial
ORDER 7. ENFORCEMENT OF JUDGMENTS AND
ORDERS
1. Enforcement
ORDER 8. REPEAL AND TRANSITIONAL
1. Revocation
FORMS
Form 1 : Writ
Form 2 : Writ of possession
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ORDER 1 : CITATION
O.1 Rule 1. Title and commencement
These rules may be cited as the Land Court Rules
2007 and shall come into effect on 1 January 2007.
ORDER 2 : APPLICATION
O.2 Rule 1. Land Court proceedings
These rules shall apply to all proceedings in the Land
Court.
O.2 Rule 2. Supreme Court rules
Except as provided in these rules, the procedures set
out in the Supreme Court Rules shall apply.
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ORDER 3 : INTERPRETATION
O.3 Rule 1. Interpretation Act
The Interpretation Act shall apply to these rules.
O.3 Rule 2. Meanings
"Act" means the Land Act (Cap 132).
"Court" means the Land Court of Tonga.
"Judge" means the Chief Justice and any other Judge
of the Land Court.
"Supreme Court Rules" means the Supreme Court
Rules for the time being in force.
ORDER 4 : COMMENCEMENT OF PROCEEDINGS
O.4 Rule 1. Action commenced by filing writ
(1) All proceedings shall be commenced by writ.
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(2) Every writ shall be in Form 1.
(3) A writ may be issued in Nuku’alofa or in the
Registry nearest to the land which is the subject
of the proceedings.
ORDER 5 : SERVICE OUT OF THE JURISDICTION
O.5 Rule 1. Service where party is out of the
jurisdiction
(1) A writ may, with the leave of the Court, be
served out of the jurisdiction on any person who
is a necessary party to an action.
(2) Leave shall be obtained, and service effected,
in accordance with the Supreme Court Rules.
ORDER 6 : DISPOSAL OF ACTION
O.6 Rule 1. Conduct of trial
(1) The trial of an action shall be conducted by a
Judge sitting with an assessor selected from
the panel of assessors.
(2) Proceedings in chambers may be conducted by
a Judge without an assessor.
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(3) Order 14 of the Supreme Court Rules
(judgment in default of defence) shall not apply.
Where the defendant has failed to file a
defence, the Judge and the assessor shall hear
formal proof of the plaintiff’s claim and, if
satisfied thereof, shall give judgment from the
plaintiff. The defendant shall be notified of and
may attend such hearing but shall not be
allowed to be heard.
(4) Order 39 of the Supreme Court rules which sets
out procedural provisions relating to the remedy
of judicial review shall not apply but in all other
respects the recognised principles applicable to
judicial review shall so far as is practicable
apply to any action where the relief claimed
arises out of the exercise by an individual of a
decision making power under the Act.
ORDER 7 : ENFORCEMENT OF JUDGMENTS AND
ORDERS
O.7 Rule 1. Enforcement
(1) An order for possession of land may be
enforced by a writ of possession under section
151(2) of the Act.
(2) A writ of possession shall be in Form 2.
(3) Any other order may be enforced in accordance
with the Supreme Court Rules.
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ORDER 8 : REPEAL AND TRANSITIONAL
O.8 Rule 1. Revocation
(1) The Land Court Rules 1991 are revoked.
(2) Notwithstanding the revocation of the Land
Court Rules 1991, any act which was properly
done in accordance with those rules before they
were repealed, and which can be validly done
under these rules, is deemed to have been
validly done under these rules.
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Form 1
(Writ) O.4 r.1(2)
IN THE LAND COURT OF TONGA (Case number)
Registry (state Registry in which issued)
BETWEEN: Plaintiff
AND: Defendant
To the Defendant (name)
of (address)
THIS WRIT OF SUMMONS has been issued against you by the
above named plaintiff(s) whose claim is fully set out in the statement
of claim attached.
TAKE NOTICE THAT
1. If you wish to defend the claim you must, within 28 days of
service of this writ on you, send to the Court a written
defence, stating concisely the ground upon which you intend
to rely. (A sealed copy must be served on each plaintiff).
2. If you fail to file a defence within the time stated, the plaintiff
may apply for a formal proof of hearing of the claim at which
you may attend but shall not be allowed to be heard, and
judgment may be given against you.
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Issued this ……. (insert date) day of ……………….(insert month and
year)
[SEAL] Judge
Note : This writ may not be served later than 12 months from its date
of issue unless renewed by order of the Court.
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Form 2
(Writ of possession) O.7 r.1(2)
[Heading as in Form 1]
To: the Officer in Charge
at (name of police station)
NUKU’ALOFA
WHEREAS in this action on the ………… day of …………… 20….
the plaintiff [ name the plaintiff]
of [address]
obtained a judgment or order against the defendant
[name the defendant]
of [address]
that the said defendant:
1. do give to the plaintiff possession of the land described in
schedule 1; and
2. do pay the plaintiff damages/costs, and the sum set out in
schedule 2 remains unpaid *
YOU ARE COMMANDED either personally or by way of delegation to
any police officer:
1. to enter the said land and to cause the plaintiff to have
possession of it;
2. if any person is in occupation of the said land then they may
be allowed up to 14 days in which to vacate it;
3. to seize property of the defendant up to the value of the said
amount (except any house and fixtures, growing crops,
clothing of the defendant and the defendants family, and tools
of trade up to a value of $200) and to sell the same by public
auction (unless otherwise ordered by the Court) and to pay
the proceeds of such sale to the Registrar of the Court. If no
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such property can be found, to certify to that effect to the
Registrar of the Court.
4. You are required to report to the Court forthwith following
execution of this writ of possession and thereafter await
further directions from the Court (if any).
NUKU’ALOFA: (date)
[SEAL] Chief Justice/ Judge
* delete as appropriate
Schedule 1
[description of land to be possessed]
Schedule 2
Amount adjudged : $___________
Interest at …….%
per annum from
date of judgment
to date : $___________
Costs : $___________
Total debt : $___________
Less paid : $___________
Balance due : $___________
Costs of this writ : $___________
Total to be levied : $___________
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COURT OF APPEAL
RULES 1990
GENERAL
Order 1. Citation
Order 2. Application
Order 3. Interpretation
Order 4. Time
CIVIL AND LAND JURISDICTION
Order 5. Notices
Order 6. Service of documents
Order 7. Applications
Order 8. Determination of appeals
Order 9. Effect of appeal
CRIMINAL JURISDICTION
Order 10. Commencement of appeal
Order 11. Determination of appeals
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FORMS
Form 1 : Notice of appeal -- civil/land
Form 2 : Notice of application
Form 3 : Notice or order of single Judge
Form 4 : Consent to determination of appeal on
written submissions
Form 5 : Notice of appeal -- criminal
Form 6 : Notice of Chief Justice's direction
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GENERAL
ORDER 1 : CITATION
O.1 Rule 1. Title
These rules may be cited as the Court of Appeal
Rules 1990.
ORDER 2 : APPLICATION
O.2 Rule 1. Proceedings
Subject to rule 2 of this order, these Rules shall apply
to all proceedings before the Court of Appeal.
O.2 Rule 2. English Rules
Where there is no provision in these Rules the rules
of procedure for the time being in England relating to
appeals to the Court of Appeal shall apply.
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ORDER 3 : INTERPRETATION
O.3 Rule 1. Interpretation Act
The Interpretation Act shall apply to these Rules.
O.3 Rule 2. Meanings
"The Act" means the Court of Appeal Act (Cap 9).
"Court" means the Court of Appeal.
"Judge" means a Judge of Appeal appointed pursuant
to clause 85 of the Constitution.
"Lawyer" means a Law Practitioner enrolled and
holding a valid practising certificate under the Law
Practitioners Act 1989.
"Registrar" means the Registrar of the Court of
Appeal.
"Service officer" means any police officer or an officer
of the Supreme Court authorised to effect service of
documents.
"Supreme Court" means the Supreme Court of
Tonga.
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ORDER 4 : TIME
O.4 Rule 1. Time may be extended or abridged
The Court or a single Judge may, on such terms as
he thinks just, order that the time within which a
person is required to or authorised to do any act be
extended or abridged.
O.4 Rule 2. Time expiring when Court closed
Unless otherwise ordered by the court, when the time
for doing any act expires on a day when the
Registrar's office is closed, the act shall be done in
time if done on the next day when the office is open.
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CIVIL AND LAND JURISDICTION
ORDER 5 : NOTICES
O.5 Rule 1. Leave to appeal
(1) Where leave to appeal is required, application
for such leave must be made within 42 days
after the date of the judgment or order appeal.
(2) If leave is granted, notice of appeal must be
lodged within 14 days after the date when such
leave was granted.
O.5 Rule 2. Notice of appeal
(1) An appeal to the Court must be commenced
within 42 days after the date of judgment or
order appealed by lodging with the Registrar
notice of appeal, together with the prescribed
fee.
(2) Notice of appeal may be given in respect of the
whole or any part of the judgment or order of
the court below.
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(3) Notice of appeal must be substantially in Form
1, and must:
(a) identify the judgment or order appealed
against, stating whether appeal is made
against the whole or part; if in part
specifying which part;
(b) state the form of the order which the
appellant seeks; and
(c) state separately and concisely each
ground of appeal, with particulars.
(4) Except with the leave of the Court (which may
be given by a single Judge) an appellant shall
not be entitled on the hearing of an appeal to
rely on any grounds of appeal, or to apply for
any relief, not specified in the notice of appeal.
O.5 Rule 3. Respondent's notice
(1) A respondent who is served with notice of
appeal and who wishes:
(a) to contend that the decision of the lower
court should be varied, whether in any
event or in the event of the appeal being
allowed in whole or in part; or
(b) to contend that the decision of the lower
court should be affirmed on grounds
other than those relied upon by that
court; or
(c) to contend by way of cross-appeal that
the decision of the lower court was wrong
in whole or in part,
must respond within 42 days after service on him of
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notice of appeal, by lodging with the Registrar a
respondent's notice.
(2) A respondent's notice must:
(a) where paragraph 1(a) or (c) applies, state
the form of the order sought; and
(b) state concisely the grounds of his
contention.
(3) Except with the leave of the Court (which may
be given by a single Judge) a respondent shall
not be entitled on the hearing of an appeal to
rely on any ground of appeal, or to apply for any
relief, not specified in the Notice given under
paragraph (1).
O.5 Rule 4. Supplementary notices.
(1) Notice of appeal or a respondent's notice may
be amended without leave, by lodging with the
Registrar a supplementary notice setting out the
amendments desired.
(2) A supplementary notice may be lodged:
(a) if the appeal is to be determined on
written submissions under Order 8, not
later than the date upon which the
documents are sent to the members of
the Court; and
(b) in any other case, not later than 28 days
before the Court is due to commence
sitting.
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ORDER 6 : SERVICE OF DOCUMENTS
O.6 Rule 1. Who must be served
Every document lodged with the Registrar, unless
lodged in connection with an ex parte application,
must within 14 days after it was lodged be served by
the party lodging it on every party who is directly
affected by the appeal, and on such other person as
the Court or a single Judge may direct.
O.6 Rule 2. Documents to be served
personally
Subject to the provisions of this order, every
document required to be served must be served
personally by delivering a sealed copy to the party to
be served.
O.6 Rule 3. Service by or on lawyer
Where a lawyer has notified the Court that he
represents any party:
(a) service of any document by that party
must be effected by that lawyer or one of
his employees; and
(b) service of any document on that party
must be effected by delivering a sealed
copy to his lawyer.
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O.6 Rule 4. Service by or on party in person
Where a party ex in person, service of any document:
(a) by him; or
(b) on him
must be effected by a service officer, on payment of
such fee as may be prescribed.
O.6 Rule 5. Substituted and dispensing with
service
(1) If it appears to the Registrar that it is
impracticable for any reason to serve any
document in accordance with rules 1 to 4, he
may grant leave to substitute some other form
of service which it appears to him is likely to
bring that document to the notice of the person
to be served.
(2) If it appears to a Judge that it is impracticable to
serve a party in accordance with rules 1 to 4, or
it is otherwise necessary or expedient to
dispense with service of any document on any
party, he may make an order dispensing with
such service.
(3) Application for an order under paragraphs (1) or
(2) must be made ex parte supported by an
affidavit showing what steps have already been
taken to effect service and stating the grounds
of the application. The applicant may be
required to attend on the application.
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O.6 Rule 6. Proof of service
(1) The person serving any document must
forthwith endorse the original document with
details of the time, date, place and mode of
service, and the server's means of knowledge
of the identity of the person served.
(2) Such endorsement must be lodged promptly
with the Registrar and shall be evidence that
the document was duly served as stated
thereon.
ORDER 7 : APPLICATIONS
O.7 Rule 1. Ex parte applications
An application for leave to appeal or for leave to
appeal out of time may be made ex parte supported
by an affidavit and may be determined by a single
Judge without a hearing.
O.7 Rule 2. Other applications
(1) Any other applications relating to an appeal
must be made on notice substantially in Form 2
supported by an affidavit.
(2) Any party served with notice of application may
lodge affidavit evidence in reply within 14 days
after service of the notice on him.
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(3) If the Court is then sitting, the Registrar will
notify the parties of the time and date when the
application will be heard.
(4) If the Court is not then sitting:
(a) After 14 days from the date of service of
the notice of application the Registrar will
send to a single Judge:
(i) the notice of application;
(ii) the affidavit(s) filed in support; and
(iii) any affidavits filed in reply.
(b) The Judge will determine the matter
without a hearing and will notify the
Registrar in writing of his order.
(c) Upon receipt of the Judge's order the
Registrar will give notice to the parties in
Form 3.
O.7 Rule 3. Renewal of applications
If an application is refused by a single Judge without
a hearing, it may be renewed with the leave of the
Court at its next sitting.
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ORDER 8 : DETERMINATION OF APPEALS
O.8 Rule 1. General powers of the court
(1) Subject to paragraph (3), an appeal shall be by
way of rehearing on the documents.
(2) In relation to an appeal the Court shall have all
the powers and duties of the court from which
the appeal is brought.
(3) The Court shall not receive further evidence on
questions of fact, (other than as to matters
which have occurred since the trial in the lower
court) without leave, which shall only be
granted on special grounds.
(4) The Court may draw inferences of fact and give
any judgment or make any order which ought to
have been given or made, and may make such
further order as the case may require.
(5) The Court may exercise the powers under the
foregoing paragraphs in respect of any part of
the decision of the court below even though that
matter has not been raised in the notice of
appeal or respondent's notice as the case may
be; and the Court may make any order, on such
terms as it thinks just, to ensure the
determination on the merits of the real question
in issue between the parties.
(6) On the hearing of an appeal the Court may
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make any order which could be made on
application for a new trial or to set aside a
verdict, finding or judgment of the court below.
(7) The Court shall not be bound to order a new
trial on the ground of misdirection, or improper
admission or rejection of evidence, unless in
the opinion of the Court some substantial wrong
or miscarriage was caused thereby.
(8) Where damages awarded by a judge are found
to be excessive or inadequate, or damages
awarded by a jury are found to be perverse, the
Court may substitute such sum as appears to it
to be proper.
O.8 Rule 2. Transcripts
(1) A transcript of proceedings in the lower court
will not be prepared unless requested by a
party when lodging his notice of appeal or
respondent's notice, as the case may be.
(2) A party may request that a specified part of the
transcript be prepared.
(3) The party requesting a transcript shall pay to
the Registrar a charge for its preparation of 3
pa'anga per page.
O.8 Rule 3. Determination of appeals on
written submissions
(1) This rule applies to appeal to be determined on
written submissions in accordance with section
15 of the Act.
(2) An appeal shall be determined in this matter if:
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(a) it is an appeal from any interlocutory
order, judgment or decision;
(b) the appellant includes in his notice of
appeal a notice that he consents to his
appeal being determined in this manner;
and the respondent within 14 days after
service of the notice of appeal on him
lodges with the Registrar his consent in
Form 4; or
(c) at any time before the appeal is set down
for an oral hearing, all parties lodge with
the Registrar their consent in Form 4.
(3) The appellant must, within 28 days after service
on him of the respondent's consent, lodge with
the Registrar written arguments in support of
his appeal.
(4) Every respondent must, within 28 days after
service on him of the appellant's written
arguments, lodge with the Registrar written
arguments in opposition to the appeal.
(5) The appellant may, within 14 days after service
on him of the respondent's written arguments,
lodge with the Registrar further written
arguments in reply.
(6) Any party may, at any time before the time for
lodging written arguments in reply under
paragraph (5), withdraw his consent to the
appeal being dealt with on written submissions
and the appeal shall thereupon proceed in
accordance with Rule 4.
(7) On expiry of the time for lodging written
arguments in reply under paragraph (5) the
Registrar will send to each member of the Court
a copy of:
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(a) the notice of appeal and any
respondent's notice and supplementary
notice;
(b) every written submission;
(c) the pleadings and orders in the action;
(d) if requested, a transcript of the evidence
and the lower court;
(e) all documentary exhibits relevant to the
stated grounds of appeal;
(f) a list of all other exhibits relevant to the
stated grounds of appeal; and
(g) the judgment appealed;
and will notify the parties when this has been
done.
(8) The members of the Court are not required to
meet together but they may communicate with
each other as they deem fit.
(9) Each member of the Court will consider the
documents and give his final determination on
the appeal in writing, either in the form of a
judgment or by concurring with one or both of
the judgments of the other members of the
Court.
(10) Each member of the Court will sign and date his
judgment which shall thereupon become his
final judgment.
(11) The judgment of the majority of the members of
the Court shall be the judgment of the Court on
that appeal.
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(12) Upon receipt of the judgments of all members
of the Court the Registrar shall notify the parties
of the time and place where such judgments
shall be read.
(13) The judgments shall be read in open court by a
Judge or a judge of the Supreme Court, or the
Registrar.
O.8 Rule 4. Determination of appeals on oral
hearing
(1) This rule applies to appeals to be determined at
an oral hearing.
(2) The Registrar may set down an appeal for
hearing at any time after expiry of the time for
lodging a respondent's notice.
(3) The Registrar shall:
(a) prepare the Court lists and notify the
parties of the date of hearing;
(b) prepare a bundle of documents for the
Court comprising those documents listed
in rule 3(7) and supplying a copy to each
party.
(4) Counsel should, not later than the seven days
before the date of hearing, lodge with the
Registrar 4 copies of:
(a) skeleton arguments, and
(b) where appropriate, a chronology of
events.
(5) The Court may give directions as to the order in
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which the parties shall be heard; but if no such
direction is given:
(a) the appellant shall present his case;
(b) each respondent in turn shall present his
case;
(c) the appellant may reply.
(6) The judgment shall be the opinion of the whole
or a majority of the members of the Court; and
only one judgment shall be given; but any
member of the Court who dissents may briefly
state his reasons for so doing.
ORDER 9 : EFFECT OF APPEAL
Unless otherwise ordered by the Court or the
Supreme Court, an appeal shall not operate as a stay
of execution or of proceedings in the court below.
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CRIMINAL JURISDICTION
ORDER 10 : COMMENCEMENT OF APPEAL
O.10 Rule 1. Leave to appeal
(1) Where leave to appeal is required, application
for such leave must be made within 42 days of
the date of the decision appealed.
(2) Application for leave to appeal or for leave to
appeal out of time must be made ex parte
supported by an affidavit.
(3) The Registrar shall refer any such application to
a single Judge who may determine the matter
without a hearing.
(4) If an application is refused by a single Judge
without the hearing, it may be renewed with the
leave of the Court.
O.10 Rule 2. Notice of appeal
(1) An appeal to the Court in its criminal jurisdiction
must be commenced by lodging with the
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Registrar notice of appeal, together with the
prescribed fee.
(2) If leave to appeal is granted, notice of appeal
must be lodged within 14 days after the date
when such leave was granted.
(3) If no leave is required, notice of appeal must be
lodged within 42 days after the date of the
decision appealed.
(4) Notice of appeal may be given in respect of
conviction or sentence, or both conviction and
sentence.
(5) Notice of appeal must be substantially in a form
5, and must state separately and concisely
each ground of appeal, with particulars.
O.10 Rule 3. Action by Registrar
On receipt of notice of appeal the Registrar will:
(a) cause a copy to be served on the respondent;
(b) prepare a transcript of any part of the
proceedings in the lower court relevant to the
stated grounds of appeal;
(c) obtain a report from the trial Judge pursuant to
section 21 of the Act; and
(d) prepare a bundle of documents for the Court
comprising:
(i) the indictment;
(ii) the report of the trial Judge;
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O.11 Rule 2. Determination of appeals without a
hearing
(iii) the transcript;
(iv) all documentary exhibits relevant to the
stated grounds of appeal;
(v) a list of all other exhibits relevant to the
stated grounds of appeal; and
(vi) if the appeal is against sentence, details
of previous convictions cited to the lower
court.
ORDER 11 : DETERMINATION OF APPEALS
O.11 Rule 1. General powers of the Court
The provisions of Order 8 Rules 1(1) to (7) inclusive
shall apply.
(1) This rule applies to appeals to be determined
without a hearing in accordance with section 24
of the Act.
(2) An appeal shall be determined in accordance
with this rule:
(a) if the Chief Justice so directs; or
(b) if the appellant's a request in writing.
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(3) If the Chief Justice so directs:
(a) The Registrar shall notify all parties in
Form 6, and
(b) The appellant must within 28 days after
service of such notice lodge written
arguments in support of his appeal;
(4) If the appellant so requests:
(a) he must do so in his notice of appeal;
and
(b) he must within 28 days after lodging
notice of appeal lodge written arguments
in support of his appeal.
(5) The respondent may, within 28 days after
service on him of the appellant's arguments,
lodge with the Registrar written arguments in
opposition to the appeal; and if he does the
appellant may, within 14 days after service on
him of the respondents arguments, lodge with
the Registrar further written arguments in reply.
(6) On expiry of the time for lodging written
arguments in reply under paragraph (5) the
Registrar will send to each member of the Court
a copy of:
(a) the documents listed in Order 10 Rule
3(d), and
(b) all written submissions
and will notify the parties when this has been done.
Thereafter the provisions of Order 8 Rules (8) to (13)
shall apply.
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O.11 Rule 3. Determination of appeals on oral
hearing
The provisions of Order 8 Rule 3 shall apply, save
that the documents for the Court shall be those listed
in Ordered 10 Rule 3(d).
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Form 1
(Notice of Appeal – Civil/Land) O.5 r.2(3)
IN THE COURT OF APPEAL OF TONGA (Appeal No)
On appeal from the Supreme/Land Court of Tonga
BETWEEN
A.B
Appellant
AND
C.D.
Respondent
NOTICE OF APPEAL
TAKE NOTICE that the Court of Appeal will be moved as soon as
Counsel can be heard on behalf of the above named Appellant on
appeal from the judgment/order of Mr Justice………………….
given/made at the trial of this action on…………….day of……………..
20……………….
whereby it was adjudged/ordered that
[set up terms of judgment or order]
FOR AN ORDER that
[set out terms of the order sought]
ON THE GROUNDS that
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234
[set out grounds of appeal]
* AND FURTHER TAKE NOTICE that the appellant consents to the
appeal being determined on written submissions in accordance with
section 15 of the Court of Appeal Act.
Dated …………………………..20…………...
(Signed)
………………………………………..
Lawyer for the Appellant
of [address]
To : [the respondent or his lawyer]
* (delete as appropriate)
FILED the…………………………………………….. [date]
…………………………………………………Registrar.
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Form 2
(Notice of application) O.7 r.2(1)
[Heading as in Form 1]
To: [name]
Of: [address]
TAKE NOTICE THAT
1. The [party] has applied to a single Judge for an order that
[set out terms of order sought]
In support of which he has lodged an affidavit a copy of which is
attached.
2. If you object to the orders sought you must lodge an affidavit
in reply within 14 days from the date of service of this
application on you.
3. After the said period of 14 days has elapsed the application
will be determined by the Judge without a hearing.
Dated ………………………… 20…...
SEAL
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Form 3
(Notice of Order of single Judge) O.7 r.2 (4)
[Heading as in Form 1]
TAKE NOTICE THAT the application of the ………………. [party]
made on ……………………. [date]
has been referred to a single Judge who has ordered that:
[Set out terms of Judge's order]
Dated ………………………………. 20………………..
Registrar
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Form 4
(Consent to determination of appeal on written submissions)
O.8 r.3 (2)
[Heading as in Form 1]
TAKE NOTICE THAT the ………………………. Respondent consents
to this appeal being determined on written submissions in accordance
with section 15 of the Court of Appeal Act.
Dated ………………………….. 20…...
(Lawyer for) ………………………………… Respondent
FILED the …………………………………. [date]
Registrar
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Form 5
(Notice of appeal – criminal) O.10 r.2 (4)
IN THE COURT OF APPEAL OF TONGA (Appeal No)
On appeal from the Supreme Court of Tonga
BETWEEN
A.B.
Appellant
AND
REX
Respondent
NOTICE OF APPEAL
TAKE NOTICE that I wish to appeal to the Court of Appeal against my
conviction/sentence/conviction and sentence before the Supreme
Court
On ………………………………………………………….
For the offence(s) of ……………………………………..
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239
For which I was sentenced to……………………………
ON THE GROUNDS that…………………………..
*AND FURTHER TAKE NOTICE that I request that this appeal be
determined without a hearing in open court in accordance with section
24 of the Court of Appeal Act.
Dated………………………………….20………….
(Signed) ……………. (Lawyer for) ………… Appellant
(* delete as appropriate)
FILED the ……………………… (date)
Registrar
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Form 6
(Notice of Chief Justice’s direction) O.11 r.2(3)
[Heading as in Form 5]
To: The Appellant and the Respondent
TAKE NOTICE that the Chief Justice has directed that this appeal be
determined in the manner provided for in section 24 of the Court of
Appeal Act.
Dated
Registrar
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COURT OF APPEAL
(CONSTITUTION OF
COURT) RULES 2003
In exercise of the powers conferred on me by
sections 6 and 9 of the Court of Appeal Act (Cap 9), I
hereby make these Rules.
1. These Rules may be cited as the Court of
Appeal (Constitution of Court) Rules, 2003.
2. The Chief Justice, all the Vice-President of the
Court of Appeal in the absence of the Chief
Justice, may order in any specify case that the
Court of Appeal shall be duly constituted if it
consists of two members of the Court.
3. The power under Rule 2 shall not exercised
unless the Chief Justice or the Vice-President
as the case may be is satisfied that a third
member of the Court of Appeal is not available
to hear the specified case for any of the
reasons stated in Rule 4 or 5.
4. An Order under Rule 2 may be made if -
(a) any other member of the Court present at
that session is unable to sit as a result of
sickness, accident or other medical
reason;
(b) the only other member of the Court
present at that session presided at the
hearing from which the appeal is being
heard; or
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(c) the only other member of the Court
present at that session has declared to
the members of the Court present at that
session an interest in the appeal being
heard, whether in relation to the parties
or the subject matter of the appeal,
sufficient to render it in the opinion of the
other members inexpedient for the
declaring member to sit.
5. An Order under Rule 2 may be made if a
member of the Court is unable to attend a
session of the Court of Appeal as a result of
sickness, accident or other unavoidable
condition occurring before the session
commences:
(a) where the member who is unable to
attend has already been summoned as
one of the members of the Court for that
session;
(b) the sickness, accident or other
unavoidable condition has occurred after
the date of that session of the Court of
Appeal has been announced;
(i) it has not been practicable to
summon another member of the
Court in time for that session; or
(ii) no other member has been
appointed to the Court in place of
the member unable to attend; and
(c) where more than two members of the
Court are able to attend the session, one
or more of the circumstances in Rule 4
also apply.
6. Any Order under Rule 2 shall be in writing, shall
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243
state the rule and sub rule under which the
requirement arose and shall be substantially in
the form in the schedule to these Rules.
7. Any Order made under these Rules shall be
read to the Court by the senior member of the
Court present at the hearing of the case
specified in the Order before the hearing
commences.
8. The Court of Appeal (Sickness of Members)
Rules, 1995, are hereby repealed.
DATED: 11 JULY 2003
Judge of Appeal
G. Ward
Chief Justice
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Schedule
IN THE COURT OF APPEAL TONGA Case No. AC
BETWEEN
A.B.
Appellant
AND
C.D.
Respondent
ORDER
BEING SATISFIED that a third member of the Court is not available to
hear this case under sub rule ……. of Rule ……… [and sub rule …….
of Rule ………….]
IT IS ORDERED THAT the Court in this case shall be duly constituted
by two members of the Court of Appeal.
Dated this ………………..day of …………………20…...
Chief Justice/Vice-President
Read in open court before the commencement of the above named
case.
Dated this …………….. day of ………………..20…….
Judge of Appeal
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(‘ULU’I PEESI)
NGAAHI TU’UTU’UNI ‘A E
FAKAMAAU’ANGA LAHI
‘A TONGA
2007
“’O hangē ko ia ‘oku ‘ilo’i ‘e ha tokotaha ‘oku ‘i ai ha’ane fekau’aki mo
e lao´, ko e halanga ‘o e lao´ ‘oku fonu ‘i he ngaahi hopo ‘oku tapuni
‘osi pea ni’ihi ‘ikai ke pehee´, ‘a ia neongo ‘oku ‘i ai ha ngaahi tukuaki’i
‘oku ‘ikai lava ‘o tali, ‘i ha toe taimi, kuo lava ia ‘o tali kakato, ko ha
fa’ahinga to’onga ‘ikai ke lava ‘o fakamatala’i, kuo lava ia ‘o
fakamatala’i kakato; ko ha me’a ‘oku tu’utu’uni pau mo ‘ikai toe ue’ia,
‘i hano toe alea’i, kuo toe liliu pe.”
Meggary J. – John v Rees [190] 1 Ch 345, 402
