Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 78

DISTRICT COURT PROCEEDINGS TRANSFERRED OR REMOVED TO COURT OF FIRST INSTANCE

(Past version on 01/07/1997).
(Past version on 30/06/1997).

DISTRICT COURT PROCEEDINGS TRANSFERRED OR REMOVED TO COURT OF FIRST INSTANCE

(25 of 1998 s. 2)

1. Application and interpretation (O. 78, r. 1)

(1) This Order applies where an order has been made under section  41 or 42 of
the District Court Ordinance ( Cap 336), for the transfer, or under section 15
of the Crown Proceedings Ordinance ( Cap 300), for the removal, of proceedings
from a district court to the Court of First Instance. (25 of 1998 s. 2; 28 of
2000 s. 45)

(2) Where only the proceedings on a counterclaim are transferred, this Order
shall apply as if the party setting up the counterclaim were the plaintiff and
the party resisting it the defendant, and references in this Order to the
plaintiff and the defendant shall be construed accordingly.

(3) References in the following provisions of this Order to the plaintiff and
the defendant shall, in relation to proceedings begun in the district court
otherwise than by writ, be construed as references to the applicant and
the respondent respectively.

2. Duties of officer (O. 78, r. 2)

On receipt by the Registrar of the documents referred to in section 44 of the
District Court Ordinance ( Cap 336), the Registrar must forthwith- (L.N. 356
of 1988)

   (a)  file the said documents and make an entry of the filing thereof in the
        cause book,

   (c)  give notice to all parties to the proceedings in the district  court
        that the action is proceeding in the Court of First Instance and that
        the defendant is required to acknowledge service of the notice.

(25 of 1998 s. 2)

3. Acknowledgment of service (O. 78, r. 3)

(1) The defendant must, within 7 days after receipt of the notice referred to
in rule 2, acknowledge service thereof in accordance with Order 12, rules 1 to
4, and Order 12, rules 1 and 4, shall apply as if the proceedings transferred
or removed were an action begun by writ.

4. Judgment on failure to give notice of intention to defend (O. 78, r. 4)

(1) If the defendant fails, or all the defendants (if more than one) fail, to
give notice of intention to defend within the period prescribed by rule 3, the
plaintiff, after having caused an address for service to be entered in the
cause book, may, with the leave of the Court, enter judgment against the
defendant or defendants, as the case may be, with costs.

(2) An application for leave under this rule must be made by summons which
must, notwithstanding anything in Order 65, rule 9, be served on the
defendant, and the address for service of the defendant shall be his address
for service in the proceedings in the district court.

5. Summons for directions or summary judgment (O. 78, r. 5)

(1) Where a defendant gives notice of intention to defend in the  action the
plaintiff must, within 7 days after such notice is given, cause an address for
service to be entered in the cause book and either-

   (a)  take out and serve on the defendant a summons for directions
        returnable in not less than 21 days, or

   (b)  except where the defendant is the Crown, make an application under
        Order 14, rule 1, for judgment against the defendant; and where a
        summons is served on the defendant under sub-paragraph (a) Order 25,
        rules 2 to 7, shall, with any necessary modifications, apply as if
        that summons were a summons for directions under that Order.

(2) If the plaintiff fails either to take out such a summons, or make such an
application, as is referred to in paragraph (1) within the period prescribed
thereby the defendant or any defendant may take out such a summons or may
apply for an order dismissing the action.

(3) On the hearing of an application to dismiss the action the  Court may
either dismiss the action on such terms as may be just or may deal with the
application as if it were a summons for directions. (Enacted 1988)