1. Art and Diseño

This summary table is to be read in conjunction with Civil Procedure Rules Issues Paper Two
Issue in Issues Paper Current Rules- Samoa
Two
Supreme Court (Civil Procedure
Rules) of Samoa (SCR) &
Magistrate Court Rules (MCR)
NZ Reference
Other Jurisdictions
High Court Rules (HCR), District
Court Rules (DCR), District
Court Act (DCA), or other
Commentary
(further
commentary detail contained in
IP 2)
2.1 & 2.2
Parties
SCR & MCR: no definition of
‘party’.
District Courts Act (DCA): s 2
Definition A party is ‘every person
served with notice of, or attending
any proceeding other than as a
witness or spectator, whether
named as a party to that
proceeding or not’.
DCA: s 2 ‘party means any
person who is a plaintiff or
defendant in any proceeding;
and includes any person added to
the proceeding’.
Uniform Civil Procedure
Rules 2005 NSW (UCPR): r
7.11 A party is ‘a natural
person who may commence
and carry on proceedings in
any court, either by a solicitor
or in person’.
Victoria
–
no
specific
definition.
Some jurisdictions provide a
definition of ‘party’ and some do
not. The Samoan definition is
somewhat ambiguous.
2.8
Joinder of Parties
MCR: no rule for joinder of
parties for several claims by the
same plaintiff or defendant to be
joined against a single defendant
or plaintiff. But joined parties
may be struck out.
SCR: rr 31, 34 parties may be
joined if arising out of same
event, or a common question of
law.
MCR : no provisions
SCR: r 43(1) where there is an
issue related to the current cause
of action, a defendant may add
another person not joined as a
defendant to the proceeding for
HCR: r 4.29 joinder of parties
where
necessary
for
determination of the claim. All
parties to be bound by
judgment.
County Court Rules VIC
(CCR): r 9.06 joinder of
parties
where
common
question of fact or law or by
leave of court.
Civil
Procedure
Rules
Vanuatu (CPR VAN): 33(1),
(2) joinder by request of
parties, other person or by
court order.
HCR NZ: rr 4.4m 4.7 a third Magistrates Court General
party may be joined if issue is Civil
Procedure
Rules
connected or similar as the (MCGCPR) VIC: r11.01 and
subject matter or proceeding.
CPR VAN: r 3.7 a third party
may be joined if there is a
claim
of
indemnity
Some consideration is given in
other jurisdictions to reasons and
effect of joinder including fairness,
expedience or delay.
2.23
Third party procedure
1
Third party procedures are useful
in having all proceedings involving
the same subject matter heard at
the one time, thereby reducing the
risk of inconsistent results where
different proceedings are heard by
example to claim a contribution.
2.37
Representation of
parties
3.1
Representation of
company or business
3.16
Representative
proceedings (‘Class
Actions’)
MCR: r 14 & SCR: rr 37 - 41
persons of unsound mind and
infants may be represented by
appointed guardian.
Includes term ‘mentally defective
person’.
Infants Ordinance 1961: infant
means a person under 21, but
inconsistent with Child Care
Protection Bill 2013: child
means a human being below the
age of 18.
MCR & SCR: limited provisions as
to representation of companies.
More
detail
provided
in
Companies Act 2011: s 345.
contribution or relief.
Mental Health Act NZ 1992: s2
the term has been changed to
‘mental disorder’.
HCR NZ r 4.29- ‘minor’ is
defined as a person under 18.
Also
‘incapacitated person’
includes being of physical,
intellectual
or
mental
impairment.
They
are
represented by a litigation
guardian appointed by a judge.
HCR NZ : r 6.12 service details
provided in rules reflect same
rules in Companies Act 1993.
Firms
and
companies
distinguished in Partnership
Act 1975.
Supreme Court (General
Civil
Procedure)
Rules
(SCGCPR) VIC: r 15(3) court
may appoint a litigation
guardian.
UCPR NSW r 7.1 & SCGCPR
VIC rr 1.17, 6.3: contain
some provisions as to
corporations as a party.
Other
provisions
are
contained
in
relevant
Corporations legislation.
MCR: r 11 & SCR: r 32 a HCR NZ: r 4.24 ‘Opt in’ Supreme Court Act 1986
representative may sue or be representative by consent of all (VIC): Part 4A ‘Opt out’
sued, with consent from any other plaintiffs or by court provisions: consent of other
person to be a plaintiff (‘opt in’).
order.
plaintiffs not required but
group members have the
right to opt out before
hearing.
2
different judges. Parties generally
elect to adopt third party
procedure in order to maximise
consistent results and to reduce
costs.
New Zealand and Australia
consider the ability of any
guardian to best represent the
interests of the minor.
These jurisdictions also adopt
neutral terms for incapacitated
people.
Legislative
consistency
is
recommended in Samoa regarding
the age of minors.
Query whether provisions of
Companies Act should be mirrored
in MCR & SCR or whether better left
to relevant Corporations legislation.
Proceedings under ‘opt out’ system
are quicker and easier to
commence because consent of all
plaintiffs not required. However a
disadvantage is that members not
wishing to be include must take a
positive step to ‘opt out’ to avoid
risk of being bound by an
unfavourable ruling.
4
Pleadings
HCR
NZ: rr 2.10, 2.14
Statement of claim distinction
from notice of claim. Clear
requirements for response and
‘information capsules’ with
defined obligations including
timeframes of plaintiff and
defendant. A prescribed form
and detailed instructions are
included
in
Rules.
Also a party must provide at
their own expense copies of all
documents requested by the
other party. Non compliance
consequences include matter
coming to an end or entry of
judgment.
SCGCPR
VIC:
r
13.02
guidelines as to all pleadings
including order of pleadings,
particulars,
timeframes,
alternative
argument,
relevant facts requirements
but not evidence.
UCPR 2005 NSW: r 14
provides similar detail as to
pleadings
including
requirement for no evidence.
Guidelines for parties may be
useful in relation to pleadings
other than only for statement of
claim.
4.13
MCR: no provisions
HCR NZ : r 7.77 pleadings
Pleadings – Amendment SCR: provide for amendment of amended with leave of court
of pleadings
statement of claim with leave of
court.
SCGCPR VIC: r 36.04 one
amendment of statement of
claim without leave, with
changes marked up for ease
of identification.
Consider the merits of allowing up
to one amendment without leave
of court rather than seeking leave
each time, to save court time and
cost.
SCGCPR VIC: r 36.04 more
comprehensive
discovery
both before proceedings
commence, and during and
after pleadings have closed.
This enables early discovery
of documents and to establish
the identity of defendants,
(including third parties) prior
to commencement.
Pre-issue discovery enables better
formulation of claims and for
discovery of documents that may
have been in a party’s control, or
that a party becomes aware of
during proceedings.
This may
assist in resolution of matters
prior to hearing.
5
Discovery
MCR & SCR: only provide for
statement of claim and general
rules as to material facts, but no
other procedural guidance in
rules.
MCR : no provisions
SCR: r 86 Discovery after filing of
defence. Non compliance with
discovery orders consequences
including dismissal or limitations
to defence.
District Court Rules (DCR) NZ:
r 2.14.3 discovery included in
‘information capsule’ early but
not prior to commencement of
proceedings.
HCR NZ: r 7.77 Court may
order
discovery
before
proceedings commence. Also,
discovery obligations continue
during proceedings.
3
5.16
Subpoena
parties
6
Form
of
Documents
to
HCR NZ:
rr 8.21, 9.52 SCGCPR VIC: r 32.07 non The requirement for non parties to
production
of
documents party
discovery
on produce documents may assist in
provisions for non parties.
application to court.
earlier identification of evidence
and resolution.
SCR: prescribed forms, but HCR NZ: Part 5, subpart 2 SCGCPR VIC: Order 27 Consistency of documentation may
Court limited requirements as to form and content prescribed in detailed provisions as to assist in quality, ease of court
format.
rules.
consistent form and content.
handling and may reduce size,
volume and cost of documentation.
non
MCR & SCR: no provisions
7.8
Trial - non appearance
MCR:
r 22, SCR r 117:
proceeding may be struck out for
non appearance by plaintiff
unless affidavit filed. Judgment in
default may be entered if non
appearance by defendant.
HCR
NZ : rr 10.8, 10.9 if
plaintiff fails to appear, the
matter may be dismissed except
for any counterclaim which
must still be proven.
If the defendant does not
appear, the plaintiff must still
prove the case insofar as the
burden rests with the plaintiff.
7.21
Place of Trial
MCR & SCR: no provisions as to HCR NZ: r 10.1 alternate venue
where proceeding to be heard.
with consent of parties where
more convenient or fair.
4
CPR VAN: r 12.9 (2) if either
plaintiff or defendant fail to
appear, proceedings can be
dismissed
or
judgment
entered.
UCPR
NSW:r13.6(1)
if
plaintiff fails to appear, a
second chance to appear is
provided on an adjourned
date before the matter is
dismissed.
The defendant
must
file
notice
of
appearance,
including
consent to judgment.
Rules differ slightly as to whether
parties
are
given
another
opportunity to appear prior to
dismissal or judgment.
In some instances a trial has been
held elsewhere in Samoa despite
there being no rule as to place of
trial.
8.9
Expert witnesses
MCR & SCR: no provisions for HCR NZ: r 9.42 the court may
expert witnesses.
appoint expert witnesses, and
parties’ right to call one expert
witness to oppose court
appointed expert.
CPR VAN: r 11.2 expert
testimony to be given 21 days
prior to hearing.
UCPR NSW: r 31.28 expert
evidence by written expert
report 28 days prior to
hearing unless court orders
otherwise. Also provision for
expert conference and joint
reports.
SCGCPR VIC: r 40.03 expert
evidence with expert code of
conduct
rules
re
independence 30 days prior
to hearing.
No expert witness provisions
currently exist in Samoa, however
rules in other jurisdictions
demonstrate some concern about
numbers of experts involved.
Consideration to be given to code
of conduct rules for experts.
8.11
Affidavits
MCR: no procedural provisions HCR NZ: r 9.51 Affidavit or
regarding swearing.
agreed statement of facts to
reduce areas of conflict.
SCR: affidavits may be sworn Different
service
time
before postmaster, collector of requirements by reference to
customs or medical officer & time of agreement rather than
others. No rules as to details of hearing date.
jurat.
Service 5 days before
hearing.
CPR Vanuatu: r 11 Affidavits
to be served 21 days prior to
hearing. Affidavit becomes
evidence unless inadmissible,
with
right
of
cross
examination.
UCPR NSW: r 30.01 detailed
rules. All evidence must be
oral unless Court orders
otherwise. Also use of sound
recording, film etc.
Different
service
time
requirements,
sometimes
dependent on whether facts
agreed or disputed (NZ), and by
reference to hearing rather than
time of agreement of facts.
5
8.16
Manner of giving
evidence
MCR: no specific provisions.
HCR NZ: r 9.51 oral evidence
SCR: r 61 evidence to be given unless court orders otherwise
either verbally or by affidavit.
or for interlocutory application.
SCR: r 63 Notice to Admit within
3 or 5 days with costs
consequences.
9.
SCR: Part XI references by judges
Reference for inquiry for inquiries or reports, with
and report
referee to have discovery powers
of judge. No rules as to who may
become a referee.
10.
Reinstatement
HCR NZ : r 29.12(2)(n) speedy
determination of real questions
including by referee.
No
specific guidance as to who may
be a referee.
CPR Vanuatu: r 12 witness
testimony either oral or
sworn statement, with right
of cross examination. Sworn
statements service 21 days
prior to hearing date.
SCGCPR VIC: r 40.02 oral
evidence unless interlocutory
application or originating
motion ‘on the papers’.
CPR Vanuatu: r 12.7 Limited guidance in Samoan SCR
reference where complex and MCR as to who may be
technical question to be appointed a referee.
decided, with rules as to
qualifications and experience
of referee.
UCPR NSW & SCCPR VIC:
wide powers to appoint
referees.
SCR: r 139 reinstatement made HCR: rr 7.40 (3), 7.40 (4)
No other jurisdiction used for
by way of application (ex parte reinstatement made by way of comparison in the original
motion).
the judge’s own initiative or on drafted IP#2
application of a party.
6
Some evidence differences as to
whether verbal or by affidavit.
Different
service
time
requirements.
It appears that Samoa reinstates
dismissed proceedings by ex parte
motion. New Zealand has two
options for reinstatement:
a) by judge’s own initiative
b) By application by the party
(this is not restricted to exparte).
10.8
Setting Aside
SCR: r 140 to set aside a
judgment, order or any execution
thereon in the absence of the
defendant, a party can make an
application to do so on the day
the judgment was given.
HCR: rr 10.9, 12.14
Judgment
following
non
appearance
any verdict or judgment
obtained at the trial may be set
aside by the Court on just terms
or if there was a miscarriage of
justice.
New South Wales:
Northey v Bega Valley Shire
Council [2012] NSWCA 28mere absence of a party, of
itself, is insufficient to justify
setting aside an order. There
must be some added factor
that makes it unjust for the
order to stand.
In Samoa, an ex parte application
can be made to set aside a
judgment. There is no provision as
to the basis for setting aside an
order.
In New Zealand the Court may set
aside an order if considers just, or
if it appears that there may have
been a miscarriage of justice. New
South Wales Judges adopt the
same approach as New Zealand,
reasoning that mere absence is
insufficient to justify setting aside
an order.
10.13
Rehearing
SCR: r 141 the Court may order a
rehearing
if
it
considers
reasonable, and stay proceedings
to examine the application.
Rehearing to be requested within
14 days of judgment, unless the
Court considers the application
could not have reasonably been
made any sooner.
HCR: r 20.18 Appeals are by
way of Rehearing.
r 2.3 Review of Decision by an
Associate Judge.
DCR: r 2.46 Review of Decision
to Allocate Short Trial except
for summary judgment, any
decision may be reviewed and
to allocate a short trial.
UCPR NSW: r 20.12 the court
must determine whether any
rehearing should be a full or
limited rehearing.
New Zealand appears to provide a
different approach to rehearing
with any appeal being by way of
rehearing.
It is unclear as to the extent of an
Associate Judge’s power to review
or rehear.
Further, in New Zealand, a party
may apply for a review of a
decision to allocate a short trial.
11.1 -11.19
Confession
MCR: r 15 confession defences HCR: rr 15.15, 15.16 admission CPR VAN: r 4.5(1)general
and counterclaim in default of cause of action and judgment provision of statement of the
action.
on admission of facts.
case to include the statement
of claim, defence, admissions
and set offs.
Consideration to be given to
whether it is preferable for
provisions to separate each step or
to be more generic.
7
11.3 -11.19
Defence
MCR: Part 3 & SCR r 96 HCR: r 15.17 admission of CPR VAN: r 4.5(2)general
defendant to file defence within defence.
provision of statement of the
10 days of service of summons.
case to include the statement
of claim, defence, admissions
and set offs.
MCR: r 15 & SCR: r 96 DCR: r 2.27.1 defendant files a UCPR 2002 Vanuatu: r 4.8
counterclaims to be served notice of counterclaim within counterclaim to be pleaded
within 10 days of service of 30 working days after the with defence and set out
summons.
plaintiff’s notice of claim is details as if claim.SCGCPR
served on the defendant.
VIC: r 9 counterclaim to be
pleaded with defence – court
has discretion to order
separate trial of counterclaim
Consideration to be given to
whether it is preferable for
provisions to separate each step or
be more generic.
11.21
Set Off
SCR: r 108
‘Any defendant may set off by way
of defence any claim or demand
that he may have in the capacity
in which he issued against the
plaintiff and in the same capacity
that the plaintiff sues him.’
HCR: r 5.61 (1) restricts the
right of a defendant to set off if
the proceeding is against
and/or filed by the Crown for
the recovery of taxes, duties or
penalties.
Vanuatu general provision of
statement of the case to
include the statement of
claim, defence, admissions
and set offs.
Consideration to be given to
whether it is preferable for
provisions to separate each step or
be more generic.
12.
Matters that resolve
with
Judgment
Judgment on Confession
SCR: r 98 a Judge may on the
application of the plaintiff enter
judgement
on
confession
accordingly
HCR: r 15.15 Judgment on No other jurisdiction used for
Admission Of Facts if a party comparison in the original
admits
facts
(in
party’s drafted IP#2
pleadings or otherwise), any
other party to the proceeding
may make an application for
any judgment upon those
admissions…. the court may
give any judgment or order on
the application as it thinks just.
Samoa and New Zealand differ on
the rules in relation to who can
apply for a judgment on confession
(admission).
Whereas Samoa states, that the
plaintiff may enter judgment on
confession, New Zealand allows for
any other party to the proceeding
to make application.
11.20
Counterclaim
8
No form or process guidance
contained in SCR for counterclaim.
12.5
SCR: r 97 the plaintiff may apply
Matters that resolve for judgment in default of
with Judgment - Default defence, counterclaim,
Judgment
confession or payment into court
within 10 days of summons.
DCR: r 2.39 the plaintiff may
seek judgment by default if
response not served within
time.
Defendant may seek
judgment
by
default
on
counterclaim
if
plaintiff
response not served within
time.
HCR: rr 15.3, 15.4
Judgment may be sealed on
proof of service of statement of
claim by affidavit of service, or
by affidavit verifying statement
of claim.
SCGCPR VIC rr 21.07 ,
22.15Judgment by default.
the Court has discretion to
set aside or vary any
judgment entered.
SCR r 97 appears to mirror DCR
NZ, except for the New Zealand
pre-requisite of an affidavit of
service of proceedings.
12.11
Summary Judgment
No specific rule in SCR or MCR
DCR: r 2.42, HCR: r 12.1
judgment may be entered
against a defendant if the
plaintiff satisfies the Court that
the defendant has no defence.
Similar provision exists for the
defendant establishing that the
plaintiff has no cause of action.
SCGCPR VIC: r 22.02 mirrors
New Zealand provisions for
entry of judgment where no
satisfactory claim or defence.
Issue also discussed in IP 1 and in
relation to amendment of DCA that
this court be a court of summary
jurisdiction.
13.
Matters that resolve
without judgment –
delivery of chattels
SCR: r 102 within 10 days of the
summons, the defendant may
deliver the property claimed or
make whole or partial payment of
the claim as compensation plus
costs, prior to hearing.
DCR: r 15.64 Warrant for No specific provision
recovery of chattels after
judgment for delivery of
chattels, a plaintiff may seek a
warrant for seizure of the
chattels.
9
The Samoan rule does not provide
for
seizure
warrants
after
judgment, but the New Zealand
rules do not specifically provide
for pre judgment delivery of
chattels or money. This may be
covered in New Zealand by
settlement negotiations, payment
into
court
and
offers
of
compromise as per 13.3 below.
These
processes
result
in
resolution prior to hearing and
associated Orders.
13.1
Matters that resolve
without judgment –
payment into Court
Without
Denial
of
Liability.
SCR: r 103 a defendant in an No specific provision
action may at any time within
seven days after service of the
summons, inclusive of the day of
service, pay moneys into Court.
No specific provision
This may provide a practical
formula for a matter to be brought
to an end without the need for a
judgment or trial.
13.1
SCR: r 104 where the defendant No specific provision
Acceptance of Monies pays into court part payment of
paid
into
Court- the claim, with or without a
Acceptance of Monies denial of liability and the plaintiff
paid into Court
accepts within 3 days, the
proceedings will be stayed.
No specific provision
This is another practical form of
resolution without the need for a
judgment or trial.
13.3
Offer of Compromise
&
Calderbank Letters
SCCPR VIC: r 26 contains
provision for formal offers
between parties, but not as to
Calderbank offers (common
law applies).
Both mechanisms provide a real
incentive for parties to make and
accept offers of settlement. The
offer of compromise has a costs
consequence formula that applies
where one party does not accept
an offer which is greater than the
final court order. The Calderbank
offer is less formal but attracts the
same costs penalties if it can be
shown that it was unreasonably
rejected. Both are designed to
indemnify the legal costs of that
party who wants to bring the
matter to an end, but the other
No specific rule appears in SCR DCR: r 4.10 & HCR: r 14.10
or MCR
Written
offers
without
prejudice except as to costs.
a party may make a written
offer at any time that is without
prejudice save as to costs and
relates to an issue in the
proceedings. The court must
not be made aware that any
offer has been made.
10
rejects the offer that should have
been accepted.
14
Discontinuance
MCR: r 20 & SCR: rr 109, 110 the DCR: r 12.20
No other jurisdiction used for
plaintiff may discontinue the HCR: r 15.19-15.25provide that comparison in the original
proceeding prior to hearing.
parties
may
discontinue drafted IP#2
proceeding, but the court may
set discontinuance aside. Costs
may be awarded.
15
Interpleader
DCA: s 4
‘Interpleader is ... a proceeding to
determine the rights of claimants
by which a person who is sued
regarding some property or debt
can require competing claimants
to that property or debt to resolve
their rights.1’
District Court Amendment Act
1992: s 12
jurisdiction
increased
from
$1000 to $10,000.
SCR r 159
Application affidavit in support
required as to no ownership to
the property, no collusion and
court to decide on distribution of
property.
16
Absconding Debtors
MCR: r 26(1) & SCR: r 184 Arrest HCR: r 17.88
Restraint of Debtors Act WA Arrest of an absconding debtor in
of absconding debtors
Defendant may be arrested on & HCR AUS: r 11.02.3 Samoa not as broad as in New
both
these
rules
provide an ex parte application.
protection of creditors and Zealand
where
ex
parte
1Butt,
Two provisions under SCR for
discontinuance of an action either
wholly or as to any cause of action.
Further, discontinuance should not
be used as a defence to bar
subsequent proceedings.
HCR: r 4.60
UCPR NSW: r 43.1
New Zealand Rules consistent with
DCR: r 3.36
CPR Vanuatu: r 16.23 Rules in Samoa.
similar interpleader provision Interpleader
provisions
to SCR.
mirror NZ and SCR.
P and Hamer David, 2011,, Lexis Nexis Concise Australian Legal Dictionary, Lexis Nexis Butterworth’s, Australia
11
17
General Provisions
procedures for the arrest of
debtors prior to final judgment
where likelihood of defendant
leaving Samoa and that the
plaintiff would be prejudiced. The
defendant is required to give
security or face imprisonment.
The defendant may apply to
rescind or vary the order or to
be discharged from custody,
The court may make any order
it considers just.
arrest only where the
defendant in contempt of
court. Minimum amount of
debt provided.
SCR: Rule 4
the Rules shall be construed as to
secure the just, speedy and
inexpensive determination of any
proceedings.
HCR: r 1.2.3 (a) &(b)
Rules to be construed to secure
the just speedy and inexpensive
determination Rules must be
construed to avoid delay and
expense.
Civil Procedure Act 2010
VIC:
ss
17-26
Legal
Profession Act 2004 NSW: s
347
overarching obligations of
parties to the Court as to
reasonable
prospects of
claim’s
success.
Also
paramount duty of parties to
act honestly, not make
frivolous claims or responses
or without proper basis, not
to mislead or deceive and to
narrow issues in dispute and
to take necessary steps to
resolve.
12
applications and the defendant
may apply to have order rescinded,
varied or discharged from custody
if the court considers just.
WA does not provide for ex parte
applications or provide defendants
with a right to seek rescission or
variation.
Query consistency of Samoan
provisions
with
Samoa’s
obligations under International
Covenant on Civil and Political
Rights.
Australia’s rules go further than
Samoa’s insofar as additional
obligations on parties to act
honestly and to ensure that claims
have a proper basis. This has the
effect of avoiding waste of court
resources and minimisation of
costs.