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Contents (1970 - 01)
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Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 24 May 2017 at 12:22)
Part 79
Part 79 Court of Disputed Returns
Division 1 General
1   Application of Part
This Part applies to proceedings in the Court in the exercise of its jurisdiction as the Court of Disputed Returns.
2   Interpretation
In this Part, unless the subject matter otherwise indicates or requires:
Electoral District means the Electoral District for which the election was held, and
3   (Repealed)
4   Application of rules
cf High Court Rules, O 68, r 2.
The rules, other than this Part, so far as applicable and not inconsistent with the subject Act and this Part, apply to proceedings to which this Part applies.
5   Appointment of solicitor
cf Pt 66, r 5.
Where, after consent or leave is given to a party pursuant to section 171 of the subject Act to be represented by a solicitor and the party appoints a solicitor to act for him in the proceedings, the party shall file notice of the appointment and serve the notice on all other parties.
Division 2 Disputed elections and returns
6   Application of Division
This Division applies to proceedings under Division 1 of Part 6 of the subject Act.
7   Interpretation
For the purposes of rule 4, unless the context or subject matter otherwise indicates or requires:
plaintiff means petitioner, and
defendant means respondent.
8   Commencement of proceedings
Proceedings in the Court shall be commenced by petition in the prescribed form, joining as respondent every person the validity of whose election or return is disputed.
9   Publication
cf HCR, O 68, r 3.
The petitioner shall, forthwith after filing the petition:
(a)  publish it in the Gazette, and
(b)  publish a notice in the prescribed form in a newspaper circulating in the Electoral District.
10   Service of petition
(1)  The petitioner shall:
(a)  at the request of the Electoral Commissioner, serve the petition on the Electoral Commissioner personally,
(b)  within seven days after filing the petition, serve the petition on each respondent, other than the Electoral Commissioner, personally.
cf HCR, O 68, r 4.
(2)  The request of the Electoral Commissioner under subrule (1) may be added to his notice of appearance.
11   Death of party
(1)  Where a sole petitioner dies before the trial, his solicitor or, if he had no solicitor, the respondent on learning of his death, shall file notice of the death.
cf HCR, O 68, r 12.
(2)  Where a respondent (other than the Electoral Commissioner) dies before the trial, his solicitor or, if he had no solicitor, the petitioner on learning of his death, shall file notice of the death.
cf Representation of the People Act, 1949 (Eng), s 134 (1) and Election Petition Rules, 1960 (Eng), r 16.
(3)  The Prothonotary shall publish notice of the death in a newspaper circulating in the Electoral District.
(4)  The notice shall add a statement to the effect that any person who might have been a petitioner may, not later than 28 days after the publication of the notice, apply by motion to the Court at such time and place as the Court may appoint, to be substituted as a petitioner or as a respondent as the case may require.
12   Respondent not opposing petition
(1)  Where, before the trial of a petition, a respondent (other than the Electoral Commissioner) files a notice that he does not intend to oppose a petition, he shall serve the notice on the petitioner and publish the notice in a newspaper circulating in the Electoral District.
cf Representation of the People Act, 1949 (Eng), s 134 (1), and Election Petition Rules, 1960 (Eng), rr 15, 16.
(2)  A notice under subrule (1) shall add a statement to the effect that any person who might have been a petitioner may, not later than 28 days after the publication of the notice, apply by motion to the Court at such time and place as the Court may appoint to be substituted as a respondent.
(3)  A respondent who has filed a notice under subrule (1) shall not be allowed to appear or act as a party against the petition.
(4)  Where a respondent files a notice under subrule (1), the Prothonotary shall report that fact to the Clerk of the Legislative Assembly.
13   Substitution of petitioner or respondent
(1)  The Court may, on application by a person who might have been a petitioner, order that that person be substituted as a petitioner or as a respondent, as the case may require, and may make further orders for the conduct of the proceedings which may include orders relating to:
(a)  service of the order and other documents in the proceedings,
(b)  amendment, and
(c)  the sum required under section 158 of the subject Act as security for costs.
cf HCR, O 68, r 11 and Representation of the People Act, 1949 (Eng), ss 127 (1), 134 (1).
(2)  Where the Court orders that a party be substituted for another party or a former party, all things done in the proceedings before the making of the order shall, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old, but entry of appearance by the old party shall not dispense with entry of appearance by the new.
cf Part 8, r 11 (2).
14   Electoral Commissioner
The Electoral Commissioner may apply to the Court under section 160 of the subject Act (which section relates to leave to enter an appearance) by motion in the proceedings.
15   Time limited for entry of appearance
cf Pt 7, r 5.
The time limited for entry of an appearance is:
(a)  in the case of the Electoral Commissioner, subject to any order of the Court—14 days after leave is granted to him to enter an appearance,
(b)  in the case of a respondent (other than the Electoral Commissioner)—14 days after service of the petition upon him,
(c)  in the case of any other person who might have been a petitioner—14 days after the publication of the petition in the Gazette.
16   No step without appearance
cf Pt 11, r 22.
A person, other than a petitioner or the Electoral Commissioner, shall not, except by leave of the Court, take any step in any proceedings unless, before taking the step, he has filed a petition under the subject Act or has entered an appearance in the proceedings.
17   Particulars
cf HCR, O 68, r 9.
The Court may order any party to file and serve on any other party particulars or further and better particulars of any matter alleged by him.
18   Motions
cf Pt 19, r 1.
An interlocutory or other application, in or for the purposes of or in relation to the proceedings, shall be made by motion under the rules.
19   Discontinuance
cf Representation of the People Act, 1949 (Eng), s 128.
(1)  Proceedings may not be discontinued without the leave of the Court.
cf HCR, O 68, r 11.
(2)  Where there are two or more petitioners, an application for leave under subrule (1) may not be made, except with the consent of all the petitioners.
cf Pt 21, rr 1, 4.
(3)  The Court may give leave under subrule (1) on terms.
(4)  An application under subrule (1) should be made by motion at such time and place as the Court appoints.
(5)  The notice of motion for leave under subrule (1) shall state the grounds on which the application is made and add a statement to the effect that, on the hearing of the motion, any person who might have been a petitioner in respect of the election may apply to the Court to be substituted as a petitioner.
(6)  Not less than 14 days before the day appointed under subrule (4), the petitioner shall publish the notice of motion in a newspaper circulating in the Electoral District.
(7)  Evidence on an application for leave under subrule (1) shall include evidence denying, subject to any specified exceptions:
(a)  that any agreement or terms of any kind whatsoever has or have been made, and
(b)  that any undertaking has been entered into,
in relation to the discontinuance in respect of which leave is sought.
20   Lists of objections to votes
(1)  This rule applies where the petition (not being a petition merely claiming a fresh count of the votes counted at the election) claims the seat for a person not returned, alleging that that person had a majority of valid votes.
cf HCR, O 68, r 7.
(2)  Each party shall, not later than 14 days before the day appointed for the trial, serve on the opposite party a list of the votes or class of votes which he contends were improperly admitted or improperly rejected, stating, in respect of each, the grounds of the contention.
cf Election Petition Rules, 1960 (Eng), r 10 (1).
(3)  A contention under subrule (2) by a party shall not be entertained upon a ground not specified in his list, except with the leave of the Court.
(4)  The Court may give leave under subrule (3) on terms.
21   Respondent’s contention of undue election
cf HCR, O 68, r 8.
Where a petition claims a seat for a person not returned and a respondent wishes to contend, upon a ground not mentioned in rule 20 (2), that that person was not duly elected, he shall, not later than 14 days before the day appointed for the trial, serve on the petitioner a statement of the facts upon which he intends to rely and the grounds of the contention.
22   Trial
(1)  The trial shall be held at a time and place to be appointed by the Court at the request of a party.
cf HCR, O 68, r 10 (2).
(2)  Not less than 14 days’ notice of the time and place appointed shall:
(a)  be given by the party obtaining the order to the other parties, and
(b)  be published by the party obtaining the order in a newspaper circulating in the Electoral District.
(3)  The time and place of trial may be varied from time to time by the Court.
(4)  This rule does not affect the powers of the Court as to adjournment.
23   Evidence generally
Division 1 of Part 31 of the Uniform Civil Procedure Rules 2005 (which relates to evidence generally) applies on the trial of a petition as it applies on a trial in proceedings commenced by statement of claim.
Division 3 Qualifications and vacancies
24   Application
This Division applies to proceedings on a reference under Division 2 of Part 6 of the subject Act.
25   Interpretation
In this Division, unless the context or subject matter otherwise indicates or requires, subject statement means a statement mentioned in section 175C of the subject Act.
26   (Repealed)
27   Transmitting of documents
(1)  The subject statement is transmitted to the Court under section 175C of the subject Act by filing it in the registry.
(2)  Proceedings, papers, reports or documents are transmitted under section 175C of the subject Act by lodging them in the registry.
28   Referring of question
A question is referred under Division 2 of Part 6 of the subject Act when the Speaker files with the subject statement a summons claiming the determination of the question stated for determination in the subject statement.
29   Parties
The summons shall join the Speaker as plaintiff and, where the matter of the subject statement concerns an election or return or the qualification of a member of the Legislative Assembly, the person whose election or return is disputed or the member, as the case may be, as defendant.
30   Service
The Prothonotary shall serve the subject statement with the summons.
31   Publication
cf Court of Disputed Returns Rules, r (7).
The Prothonotary shall, forthwith after the summons and subject statement are filed:
(a)  publish them in the Gazette, and
(b)  where the matter of the subject statement concerns an election or return, publish a notice in the prescribed form in a newspaper circulating in the Electoral District.