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Civil Procedure Act 1972 - Civil Procedure (Amendment) Rules 1977

REPUBLIC OF NAURU

CIVIL PROCEDURE ACT 1972

CIVIL PROCEDURE (AMENDMENT) RULES 1977

ARRANGEMENT OF RULES

Rule
1 Short title
2 The Rules of Court
3 Amendment of Order 30 of the Rules of Court
4. Amendment of Order 32 of the Rules of Court
5. Amendment of Order 43 of the Rules of Court
6. Addition of a new Order 60 to the Rules of Court

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IN EXERCISE of the powers conferred on me by section 76 of the Civil Procedure Act 1972, I hereby make the following rules of court-

SHORT TITLE

1. These Rules may be cited as the Civil Procedure (Amendment) Rules 1977.

THE RULES OF COURT

2. In these Rules "the Rules of Court" means the Rules of Court set out in the Schedule to the Civil Procedure Rules 1972.

AMENDMENT OF ORDER 30 OF THE RULES OF COURT

3. Order 30 of the Rules of Court is amended-

(a) by deleting from Rule 8 thereof the words "immediately after the trial"; and

(b) by deleting from Rule 8 thereof also all the punctuation and words after the words "return of the exhibit" and by inserting in lieu thereof the words and punctuation "as soon as it is no longer required for that suit or any appeal."

AMENDMENT OF ORDER 32 OF THE RULES OF COURT

4. Order 32 of the Rules of Court is amended by adding thereto the following new Rules 19 to 32-

"RULES 20 TO 30: INTERPRETATION AND APPLICATION (O. 32, r. 19)

19. (1) In Rules 20 to 30 of this Order "the Act" means the Civil Evidence Act 1972 and any expressions used in those Rules and in Part II of the Act have the same meanings in those Rules as they have in Part II of the Act.

(2) Rules 20 to 32 of this Order shall apply in relation to the trial or hearing of an issue or question arising in a cause or matter, and to a reference, inquiry and assessment of damages, as it applies in relation to the trial or hearing of a cause or matter.

NOTICE OF INTENTION TO GIVE CERTAIN STATEMENTS IN EVIDENCE (O. 32, r. 20)

20. (1) Subject to the provisions of this Rule, a party to a cause or matter who desires to give in evidence at the trial or hearing of the cause or matter any statement which is admissible in evidence by virtue of any of sections 4, 6 and 7 of the Act shall-

(a) in the case of a cause or matter which is required to be set down for trial or hearing or adjourned into court, within 21 days after it is set down or so adjourned, or within such other period as the Court may specify; and

(b) in the case of any other cause or matter, within 21 days after the date on which an appointment for the first hearing of the cause or matter is obtained, or within such other period as the Court may specify, serve on every other party to the cause or matter notice of his desire to do so; the notice shall comply with the provisions of Rule 2l, Rule 23 or Rule 24, as the circumstances of the case required.

(2) The preceding paragraph shall not apply in relation to any statement which is admissible as evidence of any fact stated therein by virtue not only of the said section 4, section 6 or section 7 but by virtue also of any other statutory provision within the meaning of section 3 of the Act.

(3) Paragraph (1) shall not apply in relation to any statement which any party to a probate action desires to give in evidence at the trial that action and which is alleged to have been made by the deceased person whose estate is the subject of the action.

(4) Where by virtue of any provision of these Rules or of any order or direction of the Court the evidence in any proceedings is to be given by affidavit, then, without prejudice to paragraph (2). Paragraph (1) shall not apply relation to any statement which any party to the proceedings desires to have included in any affidavit to be used on his behalf in the proceedings, but nothing in this paragraph shall affect the operation of Rule 6 of Order 34, or the powers of the Court under Rule 3 of this Order.

(5) Rule 9 of Order 42 shall not apply to a notice under this Rule but the Court may direct that the notice need not be served on any party who at the time when service is to be effected is in default as to entry of appearance or who has no address for service.

STATEMENT ADMISSIBLE BY VIRTUE OF SECTION 4 OF THE ACT: CONTENTS OF NOTICE (O. 32, r. 21)

21. (1) If a statement is admissible by virtue of section 4 of the Act and was made otherwise than in a document, the notice referred to in Rule 20 shall contain particulars of-

(a) the time, place and circumstances at or in which the statement was made;

(b) the person by whom, and the person to whom, the statement was made; and

(c) the substance of the statement or, if material, the words used.

(2) If a statement is admissible by virtue of section 4 of the Act and was made in a document, a copy or transcript of the document, or of the relevant part thereof, shall be annexed to the notice referred to in Rule 20 and the notice shall contain such, if any, of the particulars mentioned in sub-paragraphs (a) and (b) of the preceding paragraph as are not apparent on the face of the document or part.

(3) If in the circumstances referred to in paragraph (1) or the last preceding paragraph the party giving the notice alleges that any person, particulars of whom are contained in the notice, cannot or should not be called as a witness at the trial or hearing for any of the reasons specified in Rule 24, the notice shall contain a statement to that effect specifying the reason relied on.

STATEMENT ADMISSIBLE BY VIRTUE OF SECTION 6 OF THE ACT: CONTENTS OF NOTICE (O. 32, r. 22)

22. (1) If a statement is admissible by virtue of section 6 of the Act, the notice referred to in Rule 20 shall have annexed to it a copy or transcript of the document containing the statement, or of the relevant part thereof, and contain-

(a) particulars of-

(i) the person by whom the record containing the statement was compiled;

(ii) the person who originally supplied the information from which the record was compiled; and

(iii) any other person through whom that information was supplied to the compiler of that record;

and, in the case of any such person as is referred to in (i) or (iii), a description of the duty under which that person was acting when compiling that record or supplying information from which that record was compiled, as the case may be;

(b) if not apparent on the face of the document annexed to the notice, a description of the nature of the record which, or part of which, contains the statement; and

(c) particulars of the time, place and circumstances at or in which that record or part was compiled.

(2) If in the circumstances referred to in the preceding paragraph the party giving the notice alleges that any person, particulars of whom are contained in the notice, cannot or should not be called as a witness at the trial or hearing for any of the reasons specified in Rule 24, the notice shall contain a statement to that effect specifying the reason relied on.

STATEMENT ADMISSIBLE BY VIRTUE OF SECTION 7 OF THE ACT: CONTENTS OF NOTICE (O. 32, r. 23)

23. (1) If a statement is contained in a document produced by a computer and is admissible by virtue of section 7 of the Act, the notice referred to in Rule 20 shall have annexed to it a copy or transcript of the document containing the statement, or of the relevant part thereof, and shall contain particulars of-

(a) a person who occupied a responsible position in relation to the management of the relevant activities for the purpose of which the computer was used regularly during the material period to store or process information;

(b) a person who at the material time occupied such a position in relation to the supply of information to the computer, being information which is reproduced in the statement or information from which the information contained in the statement is derived;

(c) a person who occupied such a position in relation to the operation of the computer during the material period;

and where there are two or more persons who fall within any of sub-paragraphs (a), (b) and (c) and some only of those persons are at the date of service of the notice capable of being called as witnesses at the trial or hearing, the person particulars of whom are to be contained in the notice shall be such one of those persons as is at that date so capable.

(2) In the circumstances referred to in the preceding paragraph the notice shall also state whether the computer was operating properly throughout the material period and, if not, whether any respect in which it was not operating properly or was out of operation during any part of that period was such as to affect the production of the document in which the statement is contained or the accuracy of its contents.

(3) If in the circumstances referred to in paragraph (1) the party giving the notice alleges that any person, particulars of whom are contained in the notice, cannot or should not be called as a witness at the trial or hearing for any of the reasons specified in Rule 24, the notice shall contain a statement to that effect specifying the reason, relied on.

REASONS FOR NOT CALLING A PERSON AS A WITNESS (O. 32, r. 24)

24. The reasons referred to in paragraph (3) of Rule 21, paragraph (2) of Rule 22 and paragraph (3) of Rule 23 are that the person in question is dead or beyond the seas or unfit by reason of his bodily or mental condition to attend as a witness, or that despite the exercise of reasonable diligence it has not been possible to identify or find him, or that he cannot reasonably be expected to have any recollection of matters relevant to the accuracy or otherwise of the statement to which the notice relates.

COUNTER-NOTICE REQUIRING PERSON TO BE CALLED AS A WITNESS (O. 32, r. 25)

25. (1) Subject to paragraphs (2) and (3), any party to a cause or matter on whom such a notice as is referred to in Rule 20 is served may within 21 days after service of the notice on him serve on the party who gave the notice a counter-notice requiring that party to call as a witness at the trial or hearing of the cause or matter any person, to be flamed, particulars of whom are contained in the notice.

(2) Where any such notice as is referred to in Rule 20 contains a statement that any person particulars of whom are contained in the notice cannot or should not be called as a witness for the reason specified therein, a party shall not be entitled to serve a counter-notice under this Rule requiring that person to be called as a witness at the trial or hearing of the cause or matter unless he contends that that person can or, as the case may be, should be called and in that case he must include in his counter-notice a statement to that effect.

(3) Where a statement to which such a notice as is referred to in Rule 20 relate is one to which Rule 27 applies, no party on whom the notice is served shall he entitled to serve a counter-notice under this rule in relation to that statement, but the foregoing provision is without prejudice to the right of any party to apply to the Court under Rule 27 for directions with respect to the admissibility of that statement.

(4) If any party to a cause or matter by whom such a notice as is referred to in Rule 20 is served fails to comply with a counter-notice duly served or him under this Rule, then, unless any of the reasons specified in Rule 24 applies in relation to the person named in the counter-notice, and without prejudice to the powers of the Court under Rule 20, the statement to which the notice under Rule 20 relates shall not be admissible at the trial or hearing of the cause or matter as evidence of any fact stated therein by virtue of section 4, section 6 or section 7 of the Act, as the case may be.

DETERMINATION OF QUESTION WHETHER PERSON CAN OR SHOULD BE CALLED AS A WITNESS (O. 32, r. 26)

26. (1) Where in any cause or matter a question arises whether any of the reason specified in Rule 24 applies in relation to a person particulars of whom are contained in such a notice as is referred to in Rule 20, the Court may, on the application of any part to the cause or matter determine that question before the trial or hearing of the cause or matter or give directions for it to be determined before the trial or hearing and for the manner in which it is to be determined.

(2) Unless the Court otherwise directs, the summons by which an application under the preceding paragraph is made must be served by the party making the application on every other party to the cause or matter.

(3) Where any such question as is referred to in paragraph (1) has been determined under or by virtue of that paragraph, no application to have it determined afresh at the trial or hearing of the cause or matter may be made unless the evidence which it is sought to adduce in support of the application could not without reasonable diligence have been adduced at the hearing which resulted in the determination.

DIRECTIONS WITH RESPECT TO STATEMENT MADE IN PREVIOUS PROCEEDINGS (O. 32, r. 27)

27. Where a party to a cause or matter has given notice in accordance with Rule 20 that he desires to give in evidence at the trial or hearing of the cause or matter-

(a) a statement falling within subsection (1) of section 4 of the Act which was made by a person, whether orally or in a document, in the course of giving evidence in some other legal proceedings, whether civil or criminal; or

(b) a statement falling within subsection (1) of section 6 of the Act which is contained in a record of direct oral evidence given in some other legal proceedings, whether civil or criminal,

any party to the cause or matter may apply to the Court for directions under this rule, and the Court hearing such an application may give directions as to whether, and if so on what conditions, the party desiring to give the statement in evidence will be permitted to do so and, where applicable, as to the manner in which that statement and any other evidence given in those other proceedings is to be proved.

POWER OF COURT TO ALLOW STATEMENT TO BE GIVEN IN EVIDENCE (O. 32, r. 28)

28. (1) Without prejudice to paragraph (a) of subsection (2) of section 4 and paragraph (a) of subsection (2) of section 6 of the Act and Rule 27, the Court may, if it thinks it just to do so, allow a statement falling within subsection (1) of section 4, subsection (1) of section 6 or subsection (1) of section 7 of the Act to be given in evidence at the trial or hearing of a cause or matter notwithstanding-

(a) that the statement is one in relation to which paragraph (1) of Rule 20 applies and that the party desiring to give the statement in evidence has failed to comply with that Rule, or

(b) that that party has failed to comply with any requirement of a counter-notice relating to that statement which was served on him in accordance with Rule 25.

(2) Without prejudice to the generality of the preceding paragraph, the Court may exercise its power under that paragraph to allow a statement to be given in evidence at the trial or hearing of a cause or matter if a refusal to exercise that power might oblige the party desiring to give the statement in evidence to call as a witness at the trial or hearing an opposite party or a person who is or was at the material time the servant or agent of an opposite party.

RESTRICTION ON ADDUCING EVIDENCE AS TO CREDIBILITY OF MAKER, ETC., OF CERTAIN STATEMENTS (O. 32, r. 29)

29. Where-

(a) a notice given under Rule 20 in a cause or matter relates to a statement which is admissible by virtue of section 4 or section 6 of the Act, and

(b) the person who made the statement, or, as the case may be, the person who originally supplied the information from which the record containing the statement was compiled, is not called as a witness at the trial or hearing of the cause or matter, and

(c) none of the reasons mentioned in Rule 24 applies so as to prevent the party who gave the notice from calling that person as a witness,

no other party to the cause or matter shall be entitled, except with the leave of the Court, to adduce in relation to that person any evidence which could otherwise be adduced by him by virtue of section 9 of the Act unless he gave a counter-notice under Rule 25 in respect of that person or applied under Rule 27 for a direction that that person be called as a witness at the trial or hearing of the cause or matter.

NOTICE REQUIRED OF INTENTION TO GIVE EVIDENCE OF CERTAIN INCONSISTENT STATEMENTS (O. 32, r. 30)

30. (1) Where a person, particulars of whom were contained in a notice given under Rule 20 in a cause or matter, is not to be called as a witness at the trial or hearing of the cause or matter, any party to the cause or matter who is entitled and intends to adduce in relation to that person any evidence which is admissible for the purpose mentioned in paragraph (b) of subsection (1) of section 9 of the Act shall, not more than 21 days after service of that notice on him, serve on the party who gave that notice, notice of his intention to do so.

(2) Paragraph (1) and (2) of Rule 21 shall apply to a notice under this rule as if the notice were such a notice as is referred to in Rule 20 and the statement to which the notice relates were a statement admissible by virtue of section 4 of the Act.

(3) The Court may, if it thinks it just to do so, allow a party to give in evidence at the trial or hearing of a cause or matter any evidence which is admissible for the purpose mentioned in paragraph (b) of subsection (1) of section 9 of the Act notwithstanding that that party has failed to comply with the provisions of paragraph (1).

COSTS (O. 32, r. 31)

31. If-

(a) a party to a cause or matter serves a counter-notice under Rule 25 in respect of any person who is called as a witness at the trial of the cause or matter in compliance with a requirement of the counter-notice; and

(b) it appears to the Court that it was unreasonable to require that person to be called as a witness,

then, without prejudice to Order 40 and, in particular, to paragraph (1) of Rule 7 thereof, the Court may direct that any costs to that party in respect of the preparation and service of the counter-notice shall not be allowed to him and that any costs occasioned by the counter-notice to any other party shall be paid by him to that other party.

CERTAIN POWERS EXERCISABLE IN CHAMBERS (O. 32, r. 32)

32. The jurisdiction of the Court under subsections (2) and (3) of section 4, paragraph (a) of subsection (2) of section 6 and subsection (1) of section 7 of the Act may be exercised in chambers."

AMENDMENT OF ORDER 43 OF THE RULES OF COURT

5. Order 43 of the Rules of Court is amended by deleting therefrom Rule 1 thereof and by inserting in lieu of that Rule the following new Rule 1-

"QUALITY AND SIZE OF PAPER (O. 43, r. 1)

1. Unless the nature of the document renders it impracticable, every document prepared by a party for use in any Court must be on paper of durable quality and of metric B4 size."

ADDITION OF A NEW ORDER 60 TO THE RULES OF COURT

6. The Rules of Court are amended by the addition thereto of the following new Order 60-

"ORDER 60

CHILDREN

APPLICATIONS UNDER THE GUARDIANSHIP OF CHILDREN ACT 1975 (O. 60, r. 1)

1. (1) Applications to the Supreme Court under the Guardianship of Children Act 1975 shall be made-

(a) if made in the course of a suit already commenced, by a summons in that suit; and

(b) otherwise by an ex parte originating summons.

(2) Upon the return of the summons or the originating summons the judge shall direct which persons are to be served with notice of the application and as to the contents of the notice.

(3) Such applications as are referred to in paragraph (1) shall be heard in chambers, unless the Court orders otherwise."

Made this 24th day of March, 1977

I. R. Thompson,
Chief Justice.

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