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QUEENSLAND
THE MAGISTRATES COURTS RULES, 1960
[Reprinted as at 1 August, 19851
Published Gazette 14 May 1960, pp. 301-360; as amended by Rules published Gazette 10 September 1960, p. 103; 24 June 1961, pp. 761-762; 25 December 1965, p. 1919; 11 February 1967, p. 475; 17 June 1967, p. 805; 31 August 1968, p. 1806; 14 September 1968, p. 124; 22 February 1969, p. 641; 31 May 1969, p. 609; 27 September 1969, p. 292;
12 June 1971, p. 920; 26 June 1971, p. 1250; 14 August 1971, p. 1983; 27 November 1971, p. 1443; 4 March 1972, p. 1120; 2 June 1973, PP. 999-1002; 25 August 1973, p.
2911; 24 November 1973, pp. 1521-1522; 2 March 1974, p. 838; 23 March 1974, pp.
1169-1171; 31 August 1974, p. 2328; 21 December 1974, p. 1574; 16 May 1975, pp. 548- 550; 14 June 1975, p. 922; 26 July 1975, p. 1494; 27 September 1975, p. 292; 13 December 1975, p. 1430; 24 January 1976, p. 254; 28 February 1976. pp. 759·-761; 27 March 1976, p. 1197; 10 July 1976, pp. 1434-1435; 20 November 1976, PP. 1258-1259; 11 December 1976, PP. 1523-1524; 4 June 1977, PP. 819-822; 6 May 1978, p. 115; 29 July 1978, pp.
1483-1485; 9 September 1978, p. 87; 4 November 1978, p. 790; 27 January 1979, p. 258;
25 August 1979, pp. 2123-2125; 22 September 1979, p. 370; 20 October 1979, pp. 748- 749; 10 November 1979, p. 1041; 20 September 1980, p. 274; 16 May 1981, p. 358; 19 September 1981, pp. 223-224; 26 September 1981, PP. 305-307; 3 October 1981, p. 459;
27 March 1982, pp. 1263-1264; 18 September 1982, p. 266; 14 May 1983, pp. 343-347;
2 july 1983, p. 1464; 5 November 1983, pp. 906-907; 3 December 1983, PP. 1448-1449;
28 January 1984, PP. 191-195; 22 September 1984, pp. 272-273; 20 October 1984, pp.
784-785; 18 May 1985, pp. 770-771; 18 June 1985, PP. 1275-1276.
ORDER IN COUNCIL
At the Executive Buildings, Brisbane, this twelfth day of May, 1960
Present
His Excellency th(~ Administrator of the Government in Council
HIS Excellency the Administrator of the Government, acting by and with the advice of the Executive Council, and in pursuance of the provisions of "The Magistrates Courts Acts, 1921 to 1954," and all other powers thereto him enabling, doth hereby make the following Rules of Court.
And 'the Honourable the Minister for Justice and Attorney-General is to give the necessary directions herein accordingly,
R. B. McALLISTER, Clerk of the Council THE MAGISTRATES COURTS RULES, 1960
PART I-PRELIMINARY
Short· Title
1. These Rules may be cited as "The Magistrates Courts Rules, 19600"
2 r.2 THE MAGISTRATES COURTS RULES, 1960 r. 3
Commencement of these Rules
2. These Rules shall come into operation on the First day of October, one thousand nine hundred and sixty.
Arrangement of these Rules 3. These Rules are arranged as follows-
PART I-PRELIMINARY (RR.1-10);
PART II-WHERE PROCEEDINGS MAY BE COMMENCED (RR. 11-16);
Division I-Jurisdiction as to Locality (RR. 11-14);
Division II-Consent Jurisdiction (R. 15);
Division III-Action beyond Jurisdiction (R. 16);
PART III-PARTIES TO ACTIONS (RR. 17-33);
PART IV-JOINDER OF CAUSES OF ACTION (RR. 34-42);
PART V-COMMENCEMENT OF ACTIONS (RR. 43-52);
Division I-Plaints (R. 43);
Division II-Address for Service (R. 44);
Division III-Statements of Particulars of Claim (RR. 45-46);
Division IV-Summonses (RR. 47-51);
Division V-Time for Appearance (R. 52);
PART VI-SERVICE OF SUMMONSES AND OTHER PROCESS (RR.
53-75);
PART VII-DEFENCES AND COUNTER-CLAIMS (RR. 76-94);
PART VIII-FuRTHER PARTICULARS-AMENDMENTS-ERRORS AND MISTAKES (RR. 95-105);
PART IX-PAYMENT INTO AND OUT OF COURT (RR. 106-113);
PART X-CHANGE OF PARTIES (RR. 114-121);
PART XI-THIRD PARTY PROCEDURE (RR. 122-136);
PART XII-CONSOLIDATION OF ACTIONS (R. 137);
PART XIII-COr-.iFESSION-AGREEMENT AS TO PLAINTIFF'S CLAIM (RR. 138-139);
PART XIV-DISCONTINUANCE (RR. 140-144);
PART XV-JUDGMENT SUMMONSES-NOTICES OF TRIAL- JUDGMENTS BY DEFAULT (RR. 145-157);
Division I-Judgment Summonses (RR. 145-154);
Division II-Notices of Trial (R. 155);
Division III-Dismissal of Action for Want of Prosecution (R. 156);
Division IV-Judgment by Default (R. 157);
PART XVI-DISCOVERY AND INSPECTION--ADMISSIONS- NOTICES TO PRODUCE (RR. 158-180);
PART XVII-EVIDENCE (RR. 181-185);
r. " THE MAGISTRATES COURTS RULES, 1960 PART XVIII-THE HEARING (RR 186-199);
Di vision I-General (RR. 186-195);
Division II-Adjournment (R. 196);
Division III-Judgment in Detinue (R. 197);
r.4 3
Division IV-Judgment Ordering Payment by Instalments (R. 198);
Division V-Reserved Judgment (R. 199);
PART XIX-AFFIDAVITS (RR. 200-219);
PART XX-TRANSFER OF PROCEEDINGS (RR. 220-221);
Division I-Change of Venue (R. 220);
Division II-Transfer of Records and Business of Abolished Court (R. 221);
PART XXI-ACTIONS TRANSFERRED FROM THE SUPREME COURT OR A DISTRICT COURT (R. 222);
PART XXII-ARBITRATION (R 223);
PART XXIII-DAMAGES (R. 224);
PART XXIV-SECURITY (R. 225);
PART XXV-NEW TRIAL (R. 226);
PART XXVI-COMMITTAL (R. 227);
PART XXVII-EXECUTION (RR. 228-247);
PART XXVIII-INTERPLEADER (RR. 248-257);
PART XXIX-WARRANTS OF ATTACHMENT AND SEIZURE (R. 258);
PART XXX-ATTACHMENT OF DEBTS (RR. 259-273);
PART XXXI-EXAMINATION OF JUDGMENT DEBTOR (R. 274);
PART XXXII-AcTIONS BY AND AGAINST PERSONS CARRYING
ON BUSINESS IN NAMES OTHER THAN THEIR OWN
(RR. 275-285);
PART XXXIII-SITTINGS OF THE COURT-OFFICE HOURS (RR. 286-287);
PART XXXIV-CHAMBERS-ApPLICA TIONS-GENERALLY
(RR. 288-290);
PART XXXV-ApPEALS (RR. 291-295);
PART XXXVI-MONEY IN COURT (RR. 296-297);
PART XXXVII-RECORDS-OFFICERS (RR. 298-306);
PART XXXVIU-TIME-FoRMS (RR. 307-311);
PART XXXIX-FEES AND COSTS (RR. 312-334);
PART XL-MISCELLANEOUS (RR. 335-343).
SCHEDULES
Repeal of Existing Rules
4. "The Magistrates Courts Rules, 1922," as well as all subsequent Rules in amendment or in substitution thereof, are repealed.
4 r.:; THE MAGISTRATES COURTS RULES, 1960 r.6
_ Pending Proceedings, &c.
5. Subject to the application of "The Acts Interpretation Acts, 1954 to 1957," and of any other Act (including any Regulation, Rule of Court, or other instrument in force at any material time under any Act)-
(a) All proceedings pending and an judgments given, signed, entered, or made at or before the commencement of these Rules under or subject to the Rules repealed by these Rules, shall be treated as if pending, given, signed, entered, or as the case may be, made under these Rules, and may be proceeded with, completed, enforced, or otherwise howsoever dealt with accordingly; but the Court concerned may, either on the application of any party to the proceedings or of its own motion, modify, as it thinks fit, any of these Rules in regard thereto;
(b) An proceedings commenced subject to the Rules repealed by these Rules before and in progress at the commencement of these Rules shall be continued, completed, and enforced as far as practicable, according to these Rules; but the Court concerned may, either on the application of any party to the proceedings or of its own motion, modify, as it thinks fit, any of these Rilles in regard thereto;
(c) Subject to the aforegoing provisions of this Rule, all offices, appointments, records, accounts, books, seals, certificates, plaints, summonses, applications, notices, wan-ants, other process, judgments, appeals, and generally all acts of authority that originated under any of the provisions of the Rules hereby repealed and subsisting or in force at the commencement of these Rules shall enure for the purposes of these Rules as if they had originated under the corresponding provisions of these Rules, and accordingly shall, where necessary, be deemed to have so originated.
Application for Directions when Procedure not Prescribed
6. When a party desires to take any step in any proceeding, and the manner or fonn of procedure is not prescribed by these Rules then, subject to the directions, if any, given by a Court in the particular case, the party may adopt and apply the Rules of Court and rules of practice in the Distri.ct Court.
In any case to which this Rule applies, the party may apply to a Court for directions, and any step taken in accordance with the directions given by the Court shall be deemed to be regular and sufficient.
Without limiting the aforesaid provisions, in giving its directions the Court may modify, as it considers is best calculated to promote the just, speedy, and inexpensive determination of the proceedings, the Rules of Court and rules of practice in the District Court, and if there is no such provision, then the Court shall dispose of the case in such manner as the Court deems best calculated to promote the ends of justice.
r. 7 THE MAGISTRATES COURTS RULES, 1960 r. '9 5
Jurisdiction Con/erred by Other Acts
7. \Vhere by any Act (other than the Act) jurisdiction is given to a Magistrates Court in any action or matter, then, un less the contrary intention appears, the first proceeding in the action or matter in the Magistrates Court shaH be taken and dealt with nearly as may be as if it were a claim in a personal action and thereafter the Act and these Rules shall apply, with all necessary adaptations thereof and so flu as the same are applicable; and if with reference to any necessary proceeding in such action or matter there is nothing in the Act or these Rules which is applicable or suitable, the Court may in each case direct the procedure to be adopted.
Non-compliance with Rules
8. Non··compliance with any of these Rules shall not render void the proceedings in which the non-compliance has occurTed, unless it is expressly so provided in these Rules; but the proceedings may be set aside, either wholly or in part, as irregular or amended or otherwise dealt with on such terms as to costs and otherwise as a Court thinks fit.
INTERPRETATION
Interpretation (R. 3)
9. (1) In these Rules, unless the context otherwise indicates or requires, the following terms shall have the meanings respectively assigned to them, that is to say:--
·'Address for service"-In relation to any proceeding, the address of a place where summonses, notices, orders, other process, and written communications in that proceeding may be left for the party giving such address;
"Bailiff"-Indudes a deputy bailiff;
''''Copy''·-In relation to any document issued out of or filed or delivered at the office of any registrar, means a duplicate of the original, signed by the person who signed the original, and, if the original is required to be sealed, means a sealed duplicate of the original signed as aforesaid, and in all cases includes a copy certified as such by the registrar under the seal of the Court;
"Crown Law Office"-The Nlinister for Justice, Attorney-General, or Solicitor-General;
"Defence"-When necessary, includes counter-daim;
"Defendant"·-Includes eve:ry party served with any summons or other process in any proceeding, or served with notice of or entitled to attend any proceeding, oth.erwise than as
6 f. 9 THE MAGISTRATES COURTS RULES, 1960 f. '9
a plaintiff: Without limiting the aforegoing, the term includes a defendant to a counter-claim;
"District Court"--A Court appointed under the authority of
"The District Courts Act of 1958";
"Foreign Court"---A Court in the district into which any process is issued from a Com1 in another district;
"Foreign District"- The district into which any process is issued from another district;
"'Goods"-Includes chattels, money, cheques, bills of exchange, promissory notes, specialties or securities for money;
"Hearing" -,-Includes trial;
"Home Court" --A Court from which any process is originally issued;
"Home district"-The district from which any process is originally issued;
"'Judgment"-Includes a judgment, order, direction, and any decision or determination of a Court whether final or otherwise in any proceeding;
"Matter"-Any proceeding in a Court other than an action;
'''Pali''-Part of these Rules;
"Party"-Il1.cludes a person served with notice of or entitled to attend any proceeding, whether named as a party thereto or not: The term also where necessary includes the party's solicitor;
"Plaintiff'-Inc1udes every person asking any relief against any other person by any form of proceeding: Without limiting the aforesaid, the term includes a person who sets up a coun ter-claim;
"Post"-Inc1udes ordinary post, registered post or certified mail services;
"Proceedings"-Inc!udes both actions and matters;
"Return day"-The day appointed in any summons or other process or in the action or matter for the trial of healing;
the term where necessary includes the day to which the trial or hearing is adjourned;
"Sealed"-Sealed with the seal of the particular Magistrates Court;
"The Act" - " The Magistrates Courts Acts, 1921 to 1954";
"Trial" --Includes hearing.
(2) In these Rules no place of business shall be deemed the place of business of a party to any proceeding unless he is the master or one of the masters thereof.
As amended by Rules published Gazette, 18 May 1985, pp. 770-771 (as from 1 June 1985).
f.1O THE MAGISTRATES COURTS RULES, 1960 r. 11 7
Construction
10. These Rules shall be so construed as to secure the just, speedy, and inexpensive determination of any proceeding.
PART II-WHERE PROCEEDINGS MAY BE COMMENCED DIVISION I-JURISDICTION AS TO LOCALITY (R. 33.)
11. (1) Except where otherwise provided, an action may be brought and heard in anyone of the following Courts:-
(a) A Court in the district within which the defendant or one or more of two or more defendants, as the case may be, resides or carries on business; or
(b) A Court in the district within which the claim or cause of action, either wholly or in some material point, arose; or (c) A Court in the district within which by an engagement or
promise in writing given by the defendant a debt or sur'll of money is made payable.
(2) If any person, after having in one district contracted a debt or become liable for any damage recoverable in a Court, or to any other action enforceable in a Court, becomes, previously to the issuing of a summons for the recovery of such debt or damage or to enforce such action, resident in another district, the action to recover the debt or damage or, as the case may be, so enforceable, may be brought and heard and determined at a Court in such first-mentioned district in the same manner as if he had continued a resident in that district
(3) (Repealed).
(4) Notwithsta~ding anything to the contrary contained in these Rules, so far as concerns locality any action may be brought and heard in any Court with the written consent of the parties filed with the registrar.
(5) For the purposes of this Rule "district"-
(a) in relation to each division of the district assigned the name
"Brisbane Districts" pursuant to the provisions of section 5 of the Decentralization of Magistrates Courts Act 1965- 1974 (comprising the divisions of the said "Brisbane District"
that have been assigned the names Central Division, Cleveland Division, Holland Park Division, Inala Division, Logan Division, Redcliffe Division, Sandgate Division and Wynnum Division pursuant to section 5 of the Decentralization of Magistrates Courts Act 1965-1974 and that are deemed, pursuant to section 7 of the Decentralization of Magistrates Courts Act 1965~1974, to be districts for the purposes of Magistrates Courts appointed under the Justices Act 1886-1975) includes-
(i) the area within the said Brisbane District that is within 800 metres beyond the common boundary of that division and any other division of that district; and
8 r. 12 THE MAGISTRATES COURTS RULES, 1960 r. 14 (ii) the area outside the said Brisbane District that is within
35 kilometres beyond a boundary of that division of that district that is not a common boundary between that division and any other division of that district; and (b) in relation to each other district includes the area within
35 kilometres beyond a boundary of that district.
As amended by Rules published Gazette 2 June J 973, p. 999 (as from I July 1973);
10 July 1976, pp. 1434-1435 (as from 1 September 1976); 4 June 1977,'vPP. 819-822 (as from 14 June 1977).
Persons jointly liable (R. 34.)
12. (1) Where in the case of persons jointly liable, all the persons so liable do not reside or carry on business within the same district, it shaH be lawful for the plaintiff to bring his action in a Court in a district 'within which any of the persons jointly liable resides or carries on business, and to serve any of those persons with a summons and other process, if any, and the person or persons so served may serve the other person or persons so jointly liable with a notice of such summons in order that he or they may join in defending such action; and in case such other person or persons shan not so join in defending, the action may proceed, and judgment be obtained and execution and other proceedings issued and taken against the person or persons so served, notvvithstanding that another or others jointly liable may not have been served with 11 summons or notice or sued or may not be within the jurisdiction of the Court; and no plea in abatement shall be allowed for, or advantage be taken of, the non-joinder of the person or persons so j oil} tIy liable.
(2) Where jud.gment is obtained against any person as aforesaid and is satisfied either in part or for the whole amount by that personl
he shaH be entitled to recover in a Magistrates Court contribution from any other person jointly liable with him, and where he has caused any such other person to be personally served 'Nith a copy of the plaint and summons served upon him in such action, not later than three days before the return day, the judgment (or a copy thereof) recovered against hin1 in such action shall be admissible in evidence in any action for contribution afterwards brought by him against that other person; but if he has not caused such other person to be personally served as aforesaid, then the liability of that other person to contribution shall be proved in the ordinary manner.
Power to determine questions as to defendant'S residence (R. 35.) 13. Whenever any question ali.ses as to the district in which a defendant resides or carries on business, or as to the Court at which a dependant is required to appear, or as to the Court in which the action shall be heard, the same shall be determined by the Court as incident to the action.
Objection as to Court
14. No defendant shall be allowed to object in any Court that the action has not been commenced in the proper Court under this Division ofthis Part, unless in his notice of defence he has set fmih that objection.
Upon a failure to so object, the action shall be deemed to have been
r. 15 THE MAGISTRATES COURTS RULES, 1960 r. 17 9
commenced in a district in this Division of this Part prescribed, but the Court, if it is satisfied that the action can be more conveniently or fairly heard in a Court at some other place in Queensland, may order under Rule 220 hereof the action be sent for trial to that other Court.
DIVISION II-CONSENT JURISDICTION
Court to have jurisdiction to any amount, by consent (R.39.) 15. (1) A Magistrates Court shall have jurisdiction in any action without any limitation as to the amount of the claim, if aU parties agree (subject to sub-rule (2) of this Rule, by a n:l.emorandum in Form No.
9 set forth in the First Schedule to these Rules signed by each party or his solicitor and which memorandum shall be filed 'With the registrar), that the Court shaH have such jurisdiction; and thereupon, all proceedings may be taken, the Rules and practice of the Court as far as possible shaH be adopted, and the judgment of the Court shall be enforced in like manner and, unless the parties have agreed as prescribed that the decision of the Court shall be final, be subject to the like right of appeal as in any ordinary action,
(2) If the Magistrates Court is not to be constituted by a stipendiary magistrate and the sitting of the Court may, under subparagraph (i) or (ii) of subsection two of section seven of the Act, be held by a justice or justices, then the memorandum so consenting to the Court having junsdiction shall expressly state those facts and, in addition, whether the consent is given to the Court being constituted by two or more justices, or one justice being a clerk of petty sessions or acting clerk of petty sessions, or one justice not being a clerk of petty sessions or acting clerk of petty sessions, as the case may be.
A memorandum which does not contain such a statement shall be taken to be a consent to the Court being constituted by a stipendiary magistrate sitting alone.
Clerk of petty sessions-now clerk of the court See Justices Acts Amendment Act of 1964, s. 2 (4).
DIVISION III--ACTION BEYOND JURISDICTION
16. Subject to the aforegoing Rules of this Part and the provisions of Rule 220, when an action is brought in a Court which the Court has not jurisdiction to try or hear, the Court shall, unless the parties consent in writing that the Court shaH have jurisdiction to try the action, order the action to be struck out, and shall have power to award costs to the same extent and recoverable in the same manner as if the COUli had had jurisdiction in the matter of the action and the plaintiff had been non-suited.
Substituted by Rules published Gazette, 10 July 1976, pp. 1434-1435 (as from 1 September 1976).
PART III-PARTIES TO ACTIONS GENERALLY
Joinder of plaintiff's (R.S.C. 0.3, r. 1.)
17.. (1) AU persons may be joined in one action, as plaintiffs in whom any right to relief, in respect of or arising out of the same
10 f. 18 THE MAGISTRATES COURTS RULES, 1960 f. 21
transaction or event or series of transactions or events, is alleged to exist, whether jointly, severally, or in the alternative, where, if such persons brought separate actions, some common question of law or fact would arise.
(2) Where several plaintiffs are joined in an action, a Court may, in any case in which separate and distinct questions arise or in which, upon the application of any defendant it appears that such joinder may embarrass or delay the trial of the action, order separate trials or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment.
(3) The defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who is not found to be entitled to relief, unless the Court otherwise directs.
Action in name of wrong plaintiff (R.S.Co 0.3, f. 3.)
18. Where an action has been commenced in the name of a wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, a Court may, if satisfied that it has been so commenced through a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do, order any other person or persons to be substituted or added as plaintiff upon such terms as may be just.
Counter-claim misjoinder (R.S.C. 0.3, s. 4.)
19. Where in any action any person has been improperly or unnecessarily joined as a plaintiff, a defendant shall be entitled to the same relief by way of set~off or counter-claim against the other plaintiffs or any of them, notwithstanding such misjoinder or any proceeding consequent thereon.
Joinder of defendants (R.S.C. 0.3, r. 5.)
20. All persons may be joined in one action as defendants against whom the right to any relief, in respect of or arisiJl.g out of the same transaction or event or series of transactions or events, is alleged to exist, whether jointly, severally, or in the alternative, where, if separate actions were brought, some common question of law or fact would arise, and judgment may be given against such one or more of the defendants as may be found liable according to their respective liabilities, without any amendment.
Defendant need not be interested as to all the relief claimed (R.S.C.
0.3, r. 6.)
21. It shall not be necessary that every defendant to an action shaH be interested as to all the relief claimed, or as to every cause of action included, in any action; but a Court may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he has no interest.
r.22 THE MAGISTRATES COURTS RULES, 1960 r. 26 11
Several defendants liable on one contract (R.S.C. 0.3, r, 7.) 22. The plaintiff may, at his option, join as parties to the same action all or any of the persons severally) or jointly and severally, liable on anyone contract, including parties to bills of exchange and promissory
notes. .
Joinder of defendants where plaintiff in doubt (R.S.C. 0.3, r. 8.) 23. Where a plaintiff is in doubt as to the person from whom he is entitled to relief, he may join two or more defendants to the intent that in such action the questions as to which, if any, of the defendants is liable, and to what extent, may be determined as between an parties.
Trustees, executors, etc., may sue and be sued (R.S.C. 0.3, r. 9. R.
52.)
24. (1) Any trustee, executor, or administrator may sue and be sued in a Magistrates Court in like manner as if he were a party in his own right, without joining any of the persons beneficially interested in the trust or estate, and shall be condsidered as representing such persons in the action.
(2) The Court may at any stage of the proceedings order any of such persons to be made parties to the action, either in addition to or in lieu of the previously existing parties thereto.
(3) Where a summons has been served in due time to prevent the operation of any Statute of Limitations and either party dies after such service and after the lapse of the period within which it is provided that an action may be brought, proceedings may be taken by or against the surviving party, or by or against the personal representative of the deceased party, within one year from the date of such death.
Representative actions (R.S.C. 0.3, r. 10.)
25. Where seven or more persons have the same interest in the subject matter of any action or matter, one or more of such persons may sue, or a Court may authorise one or more of such persons to be sued or may direct that one or more of such persons shall defend, 011
behalf or for the benefit of all persons so interested.
Misjoinder or non-joinder and remedies therefor (R.S.C 0.3, r. 11.) 26. (1) No action or matter shaH be defeated by reason of the misjoinder, or non-joinder, of parties, and the Court may in every action or matter deal with the question in controversy so far as regards the rights and interests of the parties actually before it.
(2) A Court may, at any stage of the proceedings, either upon or without the application of either pal1y, and on such terms as to costs or otherwise as may appear to the Court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, or that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court rnay be necessary in. order to enable the Court effect.ually and completely to adjudicate: upon and settle all the questions involved in the action or matter, be added.
12 r. 27 THE MAGISTRATES COURTS RULES, 1960 r.29
(3) No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto.
Application to rectify misjoinder and non-joinder (R.S.C. 0.3, r. 12.) 27. Any application to add or strike out or substitute a plaintiff or defendant may be made to a Court at any time before trial, or to the Court at the trial.
Procedure where defendant added or substituted (RS.C. 0.3, r. 13.) 28. (l) Where a defendant is added or substituted, the plaintiff shall, unless otherwise ordered by a Court or that defendant waives such service, serve the new defendant with the amended proceeding in the same manner as original defendants are served.
(2) Such service shall, unless othemise ordered by a Court, be effected in the same manner in which original defendants are served.
(3) Unless otherwise ordered by a Court, the action as against such new party shall be deemed to have begun only on such service being effected, but otherwise the action shaH be continued as if the new defendant had originally been made a defendant.
(4) The provisions of this Rule shall not apply to the substitution of a person for the defendant under Rule 103 hereof.
PERSONS UNDER DISABILITY
Actions by and against infants, etc. (RR. 43, 95; R.S.C. 0.3, r. 14.) 29. (1) Subject to subsection five of section four of the Act, an infant may sue by his next friend, and may defend by his guardian ad litem.
(2) Where an action is commenced in the name of an infant by his next friend, and upon coming of age he elects to go on with it, all subsequent proceedings shaH be carried on in his own name without his next friend, and in such case he shall be liable tor all the costs of the action in the same manner as if he had commenced it after coming of age.
Married women
(3) A married woman may sue and be sued as provided by "The lvlarried Women's Property Acts, 1890 to 1952".
(4) A married woman who is not an infant may act as a next friend or guardian ad litem.
Mentally sick persons
(5) A mentaHy sick perSOll, within the rneaning of "' The llJ ental
Hygiene Act of 1938", may sue and defend by the committee of his person or estate; or (where authorised by any Act or any Rule or other
r.30 THE MAGISTRATES COURTS RULES, 1960 r.31 13
instrument under any Act) by the Public Curator, or by his next friend, or guardian ad litem, as the case may be.
Next friend (R.S.C. 0.3, r. 17.)
30. (1) Before the name of any person is used in any action as next friend of any party such person shall sign a written authority for that purpose, and the authority shall be filed with the registrar, whereon the action may proceed in the name of that party by such next friend and no order of a Court shall be necessary for the appointment of such next friend.
The authority shan not extend to any other proceeding than that specified in it.
On giving the authority the next friend shall be liable for costs in the same rnarmer and to the same extent as ifhe were himself a plaintiff, and, if the proceedings fail or are discontinued, an order for payment of costs may be made against the next ftiend whether an order for costs is or is not made against the infant or mentally sick person, as the case may be, and proceedings may be taken on the order for the recovery of costs as for the recovery of any amount payable under any other judgment,
(2) A married woman who is an infant or a corporation (other than the Public Curator of Queensland and any other corporation expressly authorised so to do by or under some Act) cannot be a next friend or guardian ad litem for the purpose of bringing or defending any action.
(3) Where any proceedings in which a person is suing in the Supreme Court or a District Court by a next friend are transferred to a Magistrates Cmu1, the plaintiff shall lodge Vltith the registrar a copy of the written authority for the use of the name of the next friend filed in the Supreme Court or District Court, which shall be deemed to be an authority within this Rule.
Removal and appointment of next friend or guardian ad litem (R.S.C.O.3, r. 18)
31. (1) A Court may, for sufficient cause shown, remove a next friend or guardian ad litem.
A next friend or guardian ad litem shall not be permitted to retire without leave of a Court.
(2) Wherever for any reason there is no next fliend or guardian ad litem, another person shall be appointed in his place in the same manner as the original next friend or guardian or a Court may on the application of any party or of its own motion appoint a fit person, with his own consent, to be such next friend or guardian:
Provided that where proceedings in which a next friend is required are commenced without a next friend, the Court may, if it does not appoint a next friend, order that the proceedings be struck out.
14 r.32 THE MAGISTRATES COURTS RULES, 1960 r.33
(R. 95.)
(3) A guardian ad litem shall not be personally liable for costs unless they are occasioned by his personal negligence or misconduct.
(4) In the case where no person is willing to act as guardian ad litem a Court may appoint the registrar to be guardian, but no responsibility or liability shall attach to the registrar when so appointed guardian at the instance of a Court.
(R.S.C 0.91, r. 5.)
(5) When a solicitor acts as next friend or guardian ad litem in any action, a Court may direct that the costs to be incurred in the performance of the duties of such office shall be borne and paid either by the parties, or some one or more of the parties to the action, or out of any moneys in Court in which the person for whom the guardian acts is interested, and may give directions for the repayment or allowance of such costs as the justice and circumstances of the case may require.
Consent to procedure
32. In any action to which any person under any disability is a party, any consent, as to the mode of taking evidence or as to any other procedure, shall, if given with the sanction of a Court by the next friend, guardian, committee, or other person acting on behalf of the person under disability, have the same force and effect as if such party were under no disability and had given such consent.
Guardian ad litem
33. (1) Where it appears on the face of the proceedings that any defendant is a person under any disability the following provisions shall apply-
(a) Within the time after the service of the summons prescribed for fHing a notice of defence, a guardian ad litem to the defendant may be appointed by the registrar, on application being made in Form No. 12 set forth in the First Schedule to these Rules, together with the written consent of the proposed guardian to act;
(b) The guardian ad litem shall forthwith notify the plaintiff in writing of his appointment and of his address for service;
(c) If no application for the appointment of a guardian ad litem is made on behalf of the defendant within the time hereinbefore limited, the plaintiff shaH, before taking any further steps, apply to a Court for the appointment of some fit person as guardian ad litem to the defendant.
(2) Where it does not appear on the face of the proceedings that any defendant is a person under any disability, but that fact appears in the course of the proceedings the following provisions shaH apply--
(a) If on any defendant appearing at the hearing it appears that he is a person under any disability, and he names as his guardian a person who consents to act, that person shall be appointed guardian. If in such case the defendant does not
r.34 THE MAGISTRATES COURTS RULES, 1960 r. 36 15
name a guardian, the Court may appoint any person who is willing to act, or, in default of any such person, the registrar;
(b) In any other case where it appears that any defendant is a person under any disability a guardian ad litem may be appointed by the registrar at any time within five days of its appearing that he is a person under any disability on application made on his behalf in Form No. 12 set forth in the First Schedule to these Rules, together with a written consent of the proposed guardian to act; and ifno application is made within the said five days the plaintiff shall, before taking any further steps in the proceedings against the defendant, apply to a Court for the appointment of some fit person as guardian ad litem to the defendant.
(3) Where a judgment has been obtained or made or entered against a defendant who was at the time a person under any disability without a guardian ad litem having been appointed, a Court may set aside the judgment and order a new hearing or make such order as it thinks just (4) No guardian ad litem (other than the registrar) to any defendant shall be appointed unless there is filed on that defendant's behalf an affidavit in Form No. 11 set forth in the First Schedule to these Rules, with such variations as circumstances may require.
PART IV--JOINDER OF CAUSES OF ACTION
Joinder of several causes (R.S.C. 0.4, IT. 1, 10.)
34. Subject to Rules 35, 36, 37, 38, and 39 of these Rules, a plaintiff may unite in the same action several causes of action.
Remedy for misjoinder (R.S.c. 0.4, r. 9.)
35. (1) Where a plaintiff has united in the same action several causes of action, any defendant who alleges that they cannot all be conveniently disposed of together may at any time apply to a Court for an order limiting the action to such of the causes of action as may be conveniently disposed of together.
Order for exclusion (R.S.C. 0.4, r. to.)
(2) If at any time it appears to a Court, upon or without an application :for the purpose, that the causes of action are such that they cannot all be conveniently disposed of together, the Court may order any of such causes of action to be excluded, and may order any consequential amendments to be made, or may order separate trials 0 L any of such causes of action to be had, or may make such other orde.r as may be necessary or expedient for the separate disposal thereof, and may make such order as to costs as may be just.
Claims by trustee in bankruptcy (R.S.C. 0.4, r. 3.)
36. Claims by a trustee in bankruptcy or under statutory deed of assignment as such shall not, unless by leave of a Court, be joined with any claim by him in any other capacity.
16 r. 37 THE MAGISTRATES COURTS RULES, 1960 r.43
Husband and wife (R.S.C. 0.4, r. 4.)
37. Claims by or against husband and wife may bt~ joined with claims by or against either of them separately.
Executor and administrator (RS.C. 0.4, r.5.)
38. Claims by or against an executor or administrator as such may be joined with claims by or against him personally where the lastmentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff sues or the defendant is sued as executor or administrator.
Claims by joint plaintiffs (R.S.C. 0.4, r. 6.)
39. Claims by plaintiffs jointly may be joined with claims by them, or any of them, separately against the same defendant.
Qualification of Rules, 37, 38, and 39
40. Rules 37, 38 and 39 of these Rules sbaH be subject to KUle j )
of these Rules.
41. (Repealed).
Heading (preceding r. 41) repealed by Rules published Gazette, 4 June 1977, pp.
819-822 (as from 14 June 1977).
Rule 41 repealed by Rules published Gazette, 4 June 1977, pp. 819-822 (as from 14 June 1977).
Causes of action not to be divided (R. 37.)
42. A plaintiff (or a defendant who relies upon a set-off or counter- claim) shall not divide any cause of action for the purpose of bringing two or more actions in one or more of the Magistrates Courts.
If it appears to a Court at any stage of the proceedings that any cause of action has been so divided, the Court may dismiss the action brought thereupon with costs:
Provided that any plaintiff (or defendant who relies upon a set-off or counter-claim) having a cause of action for more than the amount for which the Court has jurisdiction under this Act may abandon the excess Of, in an appropriate case, admit the excess by set-oft: (which abandonment or admission shall be stated in or at the end of his statement of particulars of claim or notice of defence or counter-claim), and thereupon he may, on proving his case, recover to an amount not exceeding the amount competent to be awarded in a Court; and the judgment upon such plaint shall be in full discharge of all demands in respect of such cause of action, and entry of the judgment shaH be made accordinglyo
PART V-COMMENCEMENT OF ACTIONS
DIVISION I-PLAINTS
Plaint (R. 40.)
43. (1) Every action in a Court shall be commenced by a plaint in writing in Fonn No, 13 set forth in the First Schedule to these Rules,
f.43 THE MAGISTRATES COURTS RULES, 1960 c.43 17
which shall be filed by or on behalf of the plaintiff with the registrar and shall be numbered in every year according to the order in which it is filed.
(2) Every plaint-
(a) Shall set forth the names of the parties, and in relation to each and every party, the last known place of residence or place of business; and
(b) Shall be signed by the plaintiff personally or by his agent duly authorised in writing or by his· solicitor.
(3) On filing the plaint there shall also be deliv,~red at the office of the registrar twice as many copies of the plaint as there are summons issued thereon to be served.
(4) A copy of the plaint shall be served vvith a copy of the summons issued upon the plaint being filed.
(5) A misnomer or inaccurate description of a person or place in a plaint or summons shaH not vitiate the same, if the person or place is described as commonly known,
(6) (Repealed).
(6A) In actions for small debts the plaint shall be in Form No. 13A set forth in the First Schedule to these Rules and the provisions of sub- Rules (3), (4) and (5) insofar as they relate to summonses shall not apply to such actions.
Description of defendant (R. 42.)
(7) In any proceeding in a Court, in any document (including, but without limiting the meaning of that term, any plaint, statement of particulars of claim, notice, and summons), the defendant may be described by the name by which he is generally known Of, where the plaintiff is unacquainted with the defendant's Christian name, by his surname or by his surname and the initial of his Christian name, and all subsequent proceedings may he taken in conformity vtith such description unless any amended {.iescription is at any time approved or directed by a COUl1, in which event all proceeding subsequent to that amendment shall be taken in conformity with that amended description.
Security for costs when plaintiff outside Australia
(8) If it appears that the plaintiff in any action is not at the time of filing his plaint within Australia, or does not at that time reside in Australia, or if before judgment is obtained he leaves Australia, the Com1 may order such plaintiff to give security for the costs of the action to such amount and in such manner as the Court may deem proper, and may stay all proceedings or further proceedings in the action until such security is given.
A plaintiff ordinarily resident out of Australia may be ordered to give such security though he may be temporarily resident in Australia.
18 r. 44 THE MAGISTRATES COURTS RULES, 1960 r.45
In this sub-Rule "Australia" means any part of the Commonwealth of Australia and includes any territory of the said Commonwealth to which the Service and Execution of Process Act 1901-1953 of the Commonwealth extends.
As amended by Rules published Gazette, 14 June 1975, p. 922 (as from 1 July 1975);
4 June 19771 pp. 819-822. (as from 14 June 1977).
DIVISION II-ADDRESS FOR SERVICE
44. (1) Every plaint, notice of defence, and counter-claim shall give an address for service of the plaintiff or defendant, as the case may be, within the State of Queensland in the following form:-
"The address for service of the (Plaintiff or as the case may be)
is at "
(2) The address so given (or, where such address is changed under sub-Rule (3) of this Rule, the address as so changed) shall be the place at which the party giving such address may be served or further served with any document or process in the proceeding and, unless otherwise provided, any notice or service of any document or process required by these Rules to be given or effected on that party may be given or effected by posting the same by ordinary prepaid post addressed to that party or his solicitor at such address.
(3) A party shall be at liberty at any time, without leave, to change his address for service by notice of such change and of another address for service within the State of Queensland.
The notice shall be given by serving a copy of the notice on the opposite party and filing the notice with the registrar.
Such notice may be embodied in any notice of change of solicitor under these Rules.
(4) If such address is not given or if fictitious or illusory the relevant document may be set aside as irregular.
As amended by Rules published Gazette, 10 September 1960, p. 103; 2 June 1973, p. 999 (as from 1 July 1973).
DIVISION m:-STATEMENT OF PARTICULARS OF CLAIM
Statement of particulars of claim (RR. 44, 46, 47.)
45. (1) (a) In all cases a plaintiff shall either set forth in the plaint, or, on filing the plaint deliver at the office of the registrar for annexure to the summons, a statement of the particulars of his claim:
Provided that where the summons issued upon the plaint being filed is a special summons, the special indorsement under Rule 51 on the summons shall be deemed to be such statement of the particulars of claim and no further statement of particulars of claim need be delivered unless delivery of a further statement of particulars of claim is ordered by a Court.
r.46 THE MAGISTRATES COURTS RULES, 1960 r. 47 19
(b) If the statement of particulars of the plaintiffs claim is to be annexed to the summons, there shall be set forth on the face of the plaint a statement to that effect
(2) Where pursuant to this Rule a statement of the particulars of the plaintiffs claim is delivered at the office of the registrar for annexure to the summons-
(i) There shall also be delivered twice as many copies thereof as there are summonses issued on the plaint in question to be served, for the purpose of the annexing of a copy to each copy of the summons;
(ii) The statement of particulars of claim shall be deemed to be part of the summons and a copy of that statement shall be served with a copy of the plaint and a copy of the summons issued upon the plaint being filed;
(iii) The statement of particulars of claim shaH be signed by the plaintiff personally or by his agent duly authorised in writing or by his solicitor.
Particulars (R.S.C. 0.22, r. 1.)
46. (l) Subject as subsequently provided in this Rule, a statement of particulars of claim shall contain a concise statement of the essential facts on which it is intended to rely to establish the claim (including such particulars of time, place, names of persons, dates of instruments, and other circumstances as may suffice to ensure that the Court and the opposite party are fully and fairly informed of the cause of action) but not the evidence by which they are to be proved.
Such a statement shall, where necessary, be divided into paragraphs, numbered consecutively, and each containing as nearly as may be, a separate allegation. Dates, sums, and numbers may be expressed in figures or in words.
(2) In a case where a special summons may have issued but is not issued, it shall be a sufficient compliance with the requirements of this Rule as to the statement of particulars of claim if that statement is in the form set forth in the Second Schedule to these Rules or in such form as is appropriate to the case.
(3) Where the plaintiff abandons an excess or admits a set-off and sues in a Court for the residue, the abandonment of the excess or the admission of the set-off shall be stated in or at the end of his statement of particulars of claim.
(4) The provisions of this Rule so far as may be necessary shaH apply with all necessary adaptations to cross··actions set up by way of counter-claim,.
DIVISION IV-SUMMONSES
Summons (RR. 40, 48, 52A (2).)
47. (1) Upon the plaint being filed with the registrar, he shall (subject to the giving of security when required by or under these Rules)
20 r.48 THE MAGISTRATES COURTS RULES, 1960 r.48
forthwith issue, under his hand and the seal of the Court, a summons and, for the purpose of delivery for service, as many copies thereof as may be required.
(2) The person filing the plaint shall furnish the registrar with the summons and as many copies thereof as are required, ready as far as possible for issue:
Provided that the registrar may, if he thinks it proper, prepare a sumuwnt; for any person without charge.
(3) The summons shall bear the date on which the plaint is filed, and such date shall be the date of the commencement of the action.
(4) The summons shall be according to Form No. 14 set forth in the First Schedule to these Rules for an ordinary summons (in these Rules called "ordinary summons"), or, in a case in which under these Rules such a summons may be issued and at the request of the plaintiff, according to Form No. 15 set forth in the First Schedule to these Rules for a special summons (in these Rules called "special summons").
(5) Where the summons is to be served otherwise than by a bailiff, registrar shall deliver to the plaintiff twice as many copies of the summons as there are defendants to be served, with a copy of the plaint and (where not set forth in the plaint or specially indorsed on the summons) a copy of the statement of particulars of the plaintiffs claim annexed to each copy of the summons so delivered.
(6) The orginal plaint, summons, and statement of particulars of plaintiff's claim (if annexed to the summons) shan remain in the office of the registrar for the record.
SUMMONS WHERE SERVICE OUT OF THE STATE
(R 33A)
48. (1) Where an intended defendant is outside the State of Queensland, an intended plaintiff may, in any case in which the Magistrates Court would have had jurisdiction had the defendant been within the State of Queensland, cause to be issued a summons out of the Magistrates Court.
(2) Such summons, if issued for service within any part of the Commonwealth of Australia or any territory of the said Commonwealth to which the Commonwealth Act extends, shaH have indorsed thereon the indorsements required by the Commonwealth Act.
(3) The period to be allowed to a defendant by such a summons as is referred to in suh·Rule (2) of this Rule to appear shall be as is fixed by the Commonwealth Act in the case.
(4) Any summons issued pursuant to this Rule may be served out of the State of Queensland.
(5) Service of such a summons may, subject in an appropriate case, to any Rules of Court made under the Commonwealth Act, be effected
r.49 THE MAGISTRATES COURTS RULES, 1960 r. 50 21
in the same manner as if the summons were served on the defendant in the State of Queensland.
(6) Service of such a summons may be proved in any manner prescribed by the Commonwealth Act.
(7) A summons to be served outside the State of Queensland may be issued and marked as a concurrent summons with a summons to be served within the State of Queensland; and a summons to be served within the State may be issued and marked as a concurrent summons with a summons to be served outside this State.
(8) In this Rule the term "'the Commonwealth Act" means the Service and b-:"1Cecution of Process Act 1901-1953 of the Commonwealth and includes every Act or enactment amending the same or in substitution thereof for the time being in force.
49. In any case where money is claimed to be due under a Statute and payable to Her Majesty or any body or person in Queensland, a summons may be served on any person or corporation in any State or Territory of the Commonwealth of Australia other than Queensland, or in the Dominion of New Zealand.
RENEW AL OF SUIVUviONS
Original summons in force for 12 months (R.S.C. 0.9.)
50. (1) No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named has not been served within that time, the plaintiff may, before the expiration of twelve months, apply in Form No. 16 set forth in the First Schedule to these Rules to the Registrar for leave to renew the summons.
(2) The registrar, if satisfied that reasonable efforts have been made to serve such defendant and service has not been effected, or for other good reason, may order that the original summons be renewed for a further period not exceeding twelve months from the date of such renewal, inclusive of such date, and so on from time to time during the currency of the renewed summons, and the plaintiff' may apply for such renewal accordingly: Provided that no summons shall without the leave of a Court, be extended for periods exceeding in the aggregate five years from the date of the issue of the summons.
(3) The summons shall be renewed by being marked with the words
"Renewed for a pedod (stating it)," and the date of such renewal and such rnarking shaH be sealed with the seal of the Court by the proper ofi'icer.
(4) (a) An original summons so renewed shall remain in force and be available to prevent the operation of any Statute whereby the time for the commencement of any action is, or may be, limited, and for aU other purposes, from the date of the issuing of the original summons.
22 r. 51 THE MAGISTRATES COURTS RULES, 1960 r.52 (b) Where a summons is renewed or an application is made for that purpose-
(i) For the purpose of preventing the operation of any Statute as aforesaid, it shall not be necessary that any attempt has been made to serve the summons on the defendant and such purpose shall be a good reason for the original summons to be renewed;
(ii) A fresh plaint and statement of particulars of claim shall not be filed and the only Court fee payable shall be the fee prescribed for the renewal of the summons.
(5) Particulars of the renewal of the summons shall be written in red ink in the Plaint and Record Book.
e
6) The production of a summons or a copy thereof purporting to be marked and sealed so as to show that the same has been renewed in manner aforesaid, shall be sufficient evidence of such renewal, and of the commencement of the action as of the original date of the summons for an purposes.SPECIAL SUMMONS
Special summons (R. 52A.)
51. In an action in which the plaintiff seeks to recover a debt or liquidated demand only in money payable by the defendant, with or without interest, arising-
(a) On a contract, express or implied (as, for instance, on a bill of exchange, promissory note, cheque, or other simple contract debt); or
(b) On a bond or contract under seal for payment of a liquidated amount of money; or
(c) On a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt; or
(d) On a guarantee, whether under seal or not, when the claim against the principal is in respect of a debt or liquidated demand only,
the summons issued upon the plaint being filed may, at the option of the plaintiff, be according to the form set forth in the First Schedule to these Rules for a special summons) in which event it shall be specially indorsed with the statement of particulars of the plaintiffs claim in the form set forth in the Second Schedule to these Rules or in such form as is appropriate to the case.
DIVISION V-TIME FOR APPEARANCE
Time for appearance in Court in the case of an ordinary summons
(R. 50)
52. (1) SUbject to sub-Rules (2) and (3) of this Rule, the minimum period to be allowed between the day of service and the return day in
f.53 THE MAGISTRATES COURTS RULES, 1960 f.53 23
the case of an ordinary summons shall be as set forth in the Table of this Rule according to the place of service, that is to say-
TABLE
Where the place for service is
1. In the State of Queensland--
Not more than 320 kilometres from the Court from which the summons is issued .
More than 320 kilometres but not more than 640 kilometres . . . . .
More than 640 kilometres but not more than 960 kilometres.
More than 960 kilometres.
2. In any part of the Commonwealth of Australia or any Territory of the said Commonwealth to which the Service and Execution of Process Act, 1901-1953 of the Commonwealth extends.
3. Elsewhere .. .. .. . .
Number of clear days to elapse between date of service and return day
Seven days Fourteen days Seventeen days Twenty days
As is fixed by that Commonwealth Act in the case Sixty days
(2) A summons may be served at any time before the return day- (i) If both parties agree, by a memorandum in writing signed
by each party and filed with the registrar, thereto; or (ii) On the filing by or on behalf of the plaintiff with the registrar
of an affidavit showing that the defendant is about to leave this State or to go into any remote part of the State and the action will be prolonged or defeated by such departure.
(3) At the hearing of the action, the Court-
(i) (In a case to which suh-paragraph (ii) of sub-Rule (2) of this Rule applies), if satisfied on evidence on oath that the defendant was not about to so depart or that the action win not be so prolonged or defeated, unless the defendant agrees to the action to be then heard, shall; or
(ii) (In a case to which either sub-paragraph (i) or sub-paragraph (ii) of the said sub-Rule (2) applies), may,
on such terms as it thinks fit as to costs or otherwise, adjoum the hearing.
(4) Where a summons, otherwise correctly served, has not been served so as to allow the minimum period as prescribed by this Rule to elapse between the day of service and the return day, but it appears that the summons has come to the knowledge of the defendant at a time when if service had then been effected that minimum period would have so elapsed or if the defendant appears at the hearing and consents to the hearing proceeding, the hearing may proceed; otherwise, subject to sub-Rule (2) of this Rule, the hearing shall be adjoumed.
As amended by Rules published Gazette 2 June 1973, p. 999 (as from 1 July 1973).
PART VI-SERVICE OF SUMMONSES AND OTHER PROCESS
Undertaking to accept service
53. Any summons, other process, and any document whatsoever m any proceeding shall be deemed to have been duly served upon a
24 1'.54 THE MAGISTRATES COURTS RULES, 1960 r.56
party if a solicitor accepts service thereof on behalf of such party and signs a memorandum to that effect and, in the case of a summons, undertaking to appear to such summons according to the exigencies thereof.
Service may be effected at ne:Al residence (Cf. R. 49.)
54. Where a defendant in an action has left his place of residence or place of business as set forth in the plaint, the summons may be served pursuant to these Rules at some other place where he then resides or carries on business and the person serving the summons shall endorse on the copy thereof delivered after service by him to the registrar the last-mentioned place of residence or of business.
Nothing in these Rules shaH prevent service on the defendant personally at any place.
MODE OF SERVICE GENERALLY
Mode of service (K 53.)
55. (1) Unless otherwise prescribed, a summons shall be served personally upon the person to whom it is directed or, if he cannot be found, by leaving it for him with some person, appearing to be over the age of seventeen years, at his place of residence, or with some person who is or appears to be at the time in charge of his place of business.
(2) Provided that if the person to be served resides or carries on business more than 50 kilometres from the nearest court house) the surnmons may be served by post.
As amended by Rules published Gazette, 18 May 1985, pp. 770-771 (as from 1 June 1985).
Service in actions for small debts
55A. A plaint commencing an action for a small debt may be served upon a defendant-,-
(i) the manner prescribed by sub~Rule (1) of Rule 55 these Rules; or
(ii) by posting the same from the registry to him at the address shown on the plaint.
Heading (preceding L 55A) inserted by Rules published Gazette, 14 June 1.975, p.
922 (as from 1 July 1975).
Rule 55A inserted by Rules published Gazette, 14 June 1975, p. 922 (as from i July 1975); as amended by Rules published Gazette, 18 May 1985, pp. 770-771 (as from 1 June 1985).
Personal service, how effected (R.S.C. C)'IO, r. 2.)
56. Personal service of any summons or other document whatSOever in any action shall be effected by delivering to and leaving with, or offeling to deliver to and leave with, the person to be served the document Of, as the case requires or permits, a copy thereof) in such a condition as to be open for examination,
