Uniform Civil Procedure Rules 2005
Historical version for 4 March 2011 to 10 March 2011 (accessed 19 December 2014 at 09:25) Current version
Part 51Division 8

Division 8 Miscellaneous

Subdivision 1 Offers of compromise

51.46   Interpretation

In this Subdivision:

initiating party means an applicant, appellant or cross-appellant (as the case may be).

opposite party means a prospective respondent, respondent or cross-respondent (as the case may be).

party means an initiating party or opposite party.

proceedings in the Court includes a notice of intention to appeal that has been filed even if proceedings in the Court have not been formally commenced.

51.47   Making of offers of compromise

(1)  In any proceedings in the Court, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, in whole or in part, on specified terms.
(2)  The provisions of Division 4 (Compromise) of Part 20 apply to any offer of compromise made under subrule (1), subject to the following modifications:
(a)  a reference to a court is a reference to the Court,
(b)  a reference to proceedings is a reference to proceedings in the Court,
(c)  a reference to a plaintiff is a reference to an initiating party in the Court,
(d)  a reference to a defendant is a reference to an opposite party in the Court,
(e)  a reference to a trial is a reference to a hearing in the Court that is not limited to questions of practice or procedure,
(f)  a reference to a verdict for the defendant is a reference to a judgment for the opposite party,
(g)  a reference to the period for acceptance for an offer is a reference to the period until:
(i)  the expiration of the time limited by the offer or otherwise 28 days, or
(ii)  the time when the Court begins to give its decision or reasons for decision, whichever is the earlier, on a judgment (except an interlocutory judgment),
whichever first occurs,
(h)  such other modifications as are necessary.

51.48   Application of Division 3 of Part 42 to offers of compromise made in proceedings in Court

(1)  If an offer of compromise is made under rule 51.47, Division 3 of Part 42 applies, subject to subrule (2), rule 51.49 and the following modifications:
(a)  rule 42.13 is to be read as if it provided that the Division applies where an offer of compromise (the offer concerned) is made as provided by rule 51.47 with respect to a plaintiff’s claim (the claim concerned),
(b)  a reference to a court is a reference to the Court,
(c)  a reference to proceedings is a reference to proceedings in the Court,
(d)  in the case of appeal proceedings:
(i)  a reference to the plaintiff is a reference to the party who was a plaintiff in the court below, and
(ii)  a reference to the defendant is a reference to the party who was a defendant in the court below,
(e)  in the case of proceedings in the Court other than appeal proceedings:
(i)  a reference to the plaintiff is a reference to the applicant, and
(ii)  a reference to the defendant is a reference to the respondent,
(f)  a reference to a trial is a reference to a hearing in the Court that is not limited to questions of practice or procedure,
(g)  a reference to a verdict for the defendant is a reference to a judgment for the defendant,
(h)  such other modifications as are necessary.
(2)  If the judgment does not permit the Court to determine whether a provision of Division 3 of Part 42 applies to an offer of compromise under rule 51.47 (for example, because the Court has ordered a retrial or remittal for assessment of damages):
(a)  an order for costs must disregard the offer, and
(b)  where the Court has ordered a retrial or remittal for assessment of damages:
(i)  if the offer was made by the plaintiff below—the court below may make a further or different order under rule 42.14 with respect to the plaintiff’s costs in the Court, or
(ii)  if the offer was made by the defendant below—the Court may stay its order with respect to costs from the relevant date under rule 42.15 (2) (b) or rule 42.15A (2) (b) (as appropriate) and the court below may make a further or different order, or lift the stay, as appropriate.

51.49   Relevance of offers of compromise made in proceedings in court below

The Court may have regard to any offer of compromise made (whether under these rules or otherwise) in the court below.

Subdivision 2 Powers of Court

51.50   Security for costs

(cf SCR Part 51, rule 16)

(1)  In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal.
(2)  Subject to subrules (1) and (3), no security for costs of an appeal is to be required.
(3)  Subrules (1) and (2) do not affect the powers of the Court under rule 42.21 (which relates to security for costs).

51.51   Additional evidence

(cf SCR Part 51, rule 19)

(1)  This rule applies to an application to receive additional evidence.
(2)  The application must be made by motion returnable on the return day or, with leave of the Court, on a later day.
Note. Part 18 makes provision with respect to motions and notices of motion.
(3)  The grounds must be stated in an affidavit.
(4)  Evidence necessary to establish the grounds of the application, and the evidence the applicant wants the Court to receive, must be given by affidavit.
(5)  The evidence of any party in response must be given by affidavit filed within the time directed by the Court.
(6)  A party must, not later than the time limited for filing an affidavit under this rule:
(a)  file as many copies of the affidavit as the Court may direct, and
(b)  serve 3 copies of the affidavit on each other interested party.

51.52   Powers of Court on appeal not limited by certain procedural matters

(cf SCR Part 51, rule 22)

(1)  The Court may exercise its powers under the Civil Procedure Act 2005, the Supreme Court Act 1970 and these rules even if:
(a)  there is no appeal from some part of the decision below, or
(b)  a party to the proceedings below has not appealed, or
(c)  a ground for allowing or dismissing the appeal or varying the decision is not included in any notice of appeal, notice of cross-appeal or notice of contention, or
(d)  there has been no appeal from some other decision in the proceedings.
(2)  If a person was not a party to the proceedings in which the decision below was given, but is served with a notice of appeal pursuant to a direction of the Court, the Court may give such decision as might have been given in the court below if the person served had been a party below.
(3)  The Court may, on terms, make any order to ensure the determination on the merits of the real question in controversy.
(4)  The Court may make any order that it might make on an application for a new trial or for the setting aside of a verdict or judgment.
(5)  This rule applies subject to any Act.

51.53   Circumstances in which Court may order new trial

(cf SCR Part 51, rule 23)

(1)  The Court must not order a new trial on any of the following grounds:
(a)  misdirection, non-direction or other error of law,
(b)  improper admission or rejection of evidence,
(c)  that the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury,
(d)  on any other ground,
unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.
(2)  The Court may order a new trial on any question without interfering with the decision on any other question.
(3)  If it appears to the Court that some ground for a new trial affects part only of the matter in controversy, or one or some only of the parties, the Court may order a new trial as to that part only, or as to that party or those parties only.
(4)  If the Court makes an order under subrule (2) or (3), it may give such judgment or make such order as the nature of the case requires for the disposal of the remainder of the appeal.
(5)  If the Court orders a new trial, the Court may:
(a)  impose conditions on any party for the purposes of the new trial, and
(b)  direct admissions to be made by any party for the purpose of the new trial, and
(c)  order that the testimony of any witness examined at the former trial may be read from the transcript, instead of the witness being again examined.

51.54   Reinstatement and restitution

(cf SCR Part 51, rule 26)

If any step has been taken for the enforcement of a judgment or order that the Court varies or sets aside, the Court may make such orders for reinstatement or restitution as it thinks fit.
Note. Rule 51.19 provides for how claims for an order for reinstatement or restitution are to be made in appeals and cross-appeals.

51.55   Short reasons for decision

(cf SCR Part 51, rule 59)

The Court may, when dismissing an appeal, exercise its power under section 45 (4) of the Supreme Court Act 1970 to give reasons for its decision in short form.

Subdivision 3 Discontinuances

51.56   Discontinuance of proceedings in Court

(cf SCR Part 51, rules 4A and 6 (5) and (6))

(1)  The initiating party in any appeal proceedings may discontinue the proceedings by filing a notice of discontinuance and serving it on each respondent who has been served with the relevant notice of appeal or summons seeking leave to appeal.
(2)  The discontinuance of an appeal does not affect any cross-appeal.
(3)  An application for leave to cross-appeal to the Court is taken to be discontinued when an application for leave to appeal to the Court is discontinued, but only if the party who made the application for leave to cross-appeal has not been served with a notice of appeal in the proceedings.
(4)  An application for leave to cross-appeal that is taken to be discontinued may be reinstated on application made within 21 days.
(5)  An application for leave to cross-appeal to the Court is not affected by the discontinuance of any application for leave to appeal to the Court if a notice of appeal has been filed in the proceedings and served on the party who made the application for leave to cross-appeal.
(6)  This rule does not limit the operation of rule 12.1 in relation to proceedings in the Court.
Note. Rules 12.1, 12.3, 12.4 and 42.19 apply, with necessary modifications, in relation to proceedings in the Court. See rule 51.1 (3) and (4).
(7)  The discontinuance of appeal proceedings does not require the consent of any respondent or the leave of the Court.
(8)  Rule 42.19 applies to the discontinuance of appeal proceedings under this rule in the same way as it applies to the discontinuance of proceedings under rule 12.1.

Subdivision 4 Other

51.57   Hearing in fixed vacation

(cf SCR Part 51, rule 52)

(1)  An application for an order that an appeal or other proceedings be heard during the fixed vacation must, unless the Court otherwise orders, be accompanied by:
(a)  an affidavit showing the grounds on which the application is based, and
(b)  a draft order.
Note. Rule 18.1 requires an interlocutory or other application to a court to be made by motion unless the rules otherwise provide.
(2)  The application may be dealt with by the Court in the absence of the public and without the attendance of any person.

51.58   Review of order of Judge of Appeal

(cf SCR Part 51, rule 56)

An application to the Court for the variation or discharge of an order of a Judge of Appeal must be made on notice of motion filed:
(a)  within 14 days after the date on which the order is made, or
(b)  within such extended time as the Court may fix.

51.59   Review of decisions of Registrar

(cf SCR Part 61, rule 4)

(1)  A Judge of Appeal may exercise the powers of the Court under Part 49 to review a decision of the Registrar.
(2)  This rule does not limit the powers of the Court to review decisions of the Registrar under Part 49.

51.60   Application for expedited hearing

(1)  A party may apply for the hearing of proceedings in the Court to be expedited.
(2)  An interested party may file a notice of non-objection to the hearing of the proceedings being expedited.
(3)  If notices of non-objection are filed by each of the interested parties, the application may be decided in the absence of the public and the parties.
(4)  Reasons for a decision under subrule (3) need not be given.
(5)  This rule does not limit any other power of the Court to order that the hearing of proceedings be expedited.

51.61   Affidavits in support of orders sought by notice of motion

(1)  Unless the Court orders otherwise:
(a)  a party that files a notice of motion must also file an affidavit setting out the evidence that the party relies on in support of the orders sought by the notice, and
(b)  a party that opposes an order sought by a notice of motion must file an affidavit setting out the evidence that the party relies on in opposition to the order.
(2)  An affidavit referred to in subrule (1) (b) must be filed as soon as practicable and, in any case, before the hearing date listed in the notice of motion that seeks the orders opposed.
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