Getting this choice right at the outset saves a great deal of trouble. Order 4 Rules 2 and 3 of the National Court Rules 1983 govern it.
Order 4 Rule 2 — when a writ is compulsory
Proceedings shall be commenced by writ of summons —
(a) where a claim is made for any relief or remedy for any tort;
(b) where a claim is based on an allegation of fraud;
(c) where a claim is made for damages for breach of duty — whether the duty exists by contract, by or under an Act, or independently — and the damages consist of or include damages in respect of the death of any person, or personal injuries to any person, or damage to any property;
(d) where a claim is made for damages for breach of promise of marriage.
(2) “Personal injuries” includes any disease and any impairment of a person’s physical or mental condition.
Each involves disputed facts that need pleading, discovery and oral evidence.
A tort claim turns on what happened. Fraud is a serious allegation that must be pleaded with particularity and proved. A claim for personal injury or death requires medical evidence and cross-examination.
The writ procedure supplies all of that: pleadings under Order 8, discovery under Order 9, and a trial under Order 10.
Note paragraph (c) carefully: it is not confined to negligence. A contractual claim requires a writ if the damages include damages for death, personal injury or damage to any property.
Order 4 Rule 2(3)
(a) a declaration of right; or
(b) an immediate injunction; or
(c) an immediate appointment of a receiver; or
(d) immediate orders under Order 14 Rule 10 (preservation of property).
The word in paragraphs (b), (c) and (d) is “immediate”. Where relief is genuinely needed at once, the plaintiff is not forced into the slower writ procedure even in a tort case.
So a person facing an imminent trespass, or the dissipation of property, may commence by originating summons and move immediately for an injunction — see also preserving property until trial.
Paragraph (a) is broader and has no urgency requirement: proceedings for a declaration of right need not be commenced by writ.
Order 4 Rule 3
Except where proceedings are required to be commenced by writ, proceedings may be commenced either by writ of summons or by originating summons as the plaintiff considers appropriate.
(a) proceedings in which the sole or principal question is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law;
(b) proceedings in which there is unlikely to be a substantial dispute of fact;
(c) proceedings in which a person is authorised by an Act, regulation or these Rules to make an application to the Court on a matter not already the subject of a pending cause, and no other mode of making the application is prescribed,
— unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons.
| Writ of summons | Originating summons | |
|---|---|---|
| Form | Form 5 — O 4 r 16 | Form 6 or Form 7 — O 4 rr 26, 27 |
| Must be endorsed with | A statement of claim — O 4 r 19 | The relief claimed and any question — O 4 r 7 |
| Evidence | Ordinarily oral, at trial | Ordinarily affidavit |
| Pleadings | Yes — Order 8 | No, unless the Court orders under O 4 r 35 |
| Discovery | As of course under Order 9 | Only if ordered |
| Speed | Slower | Faster — can be heard on a fixed appointment |
| Suited to | Disputed facts | Questions of law and construction |
Order 4 Rule 35 — continuation on pleadings
(1) The Court may order that the proceedings continue on pleadings.
(2) The Court may (a) order that any affidavits stand as pleadings; or (b) make orders for the filing of a statement of claim or other pleadings.
(3) The provisions concerning proceedings commenced by writ of summons shall apply to proceedings ordered to continue on pleadings, except so far as the Court otherwise orders.
If a matter begun by originating summons turns out to involve a substantial dispute of fact, the Court can order it to continue on pleadings and it proceeds as if commenced by writ.
That, with Order 1 Rule 8 — non-compliance does not render a proceeding void — means the choice is rarely a knockout point. But it is not costless: the plaintiff will usually bear the costs of the conversion, and time will have been lost.
If you are genuinely unsure, Order 1 Rule 12 allows an application for directions, and proceedings commenced in accordance with those directions shall be well commenced.
Note finally that some proceedings have their own prescribed mode entirely: judicial review under Order 16, habeas corpus under Order 17, probate under Order 19, human rights under Order 23, and election petitions under the Election Petition Rules 2017.
Sources
- National Court Rules 1983 — O 1 rr 8, 12; O 4 rr 1–3, 7, 16, 19, 26, 27, 35; O 8; O 9; O 14 r 10
- Election Petition Rules 2017
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.