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 01/09/2000).
(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 the 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. (L.N. 152 of 2008)

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

On receipt by the Registrar of the documents relating to the transfer or
removal, the Registrar must forthwith- (L.N. 356 of 1988; L.N. 152 of 2008)

   (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 in
        writing. (L.N. 152 of 2008)

(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 in writing of the notice of transfer or
removal. (L.N. 152 of 2008)

(2) Where the defendant has not, before the proceedings are transferred or
removed to the Court, acknowledged service of the writ or the
originating summons by which the proceedings were begun in the District Court,
he shall file an acknowledgement of service in accordance with Order 12, rules
1, 3, 5 and 9 within 14 days after receipt of the notice referred to in rule
2. (L.N. 152 of 2008)

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(2),
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. (L.N. 152 of 2008)

5. Case management summons or summary judgment (O. 78, r. 5) (L.N. 152 of
2008)

(1) Unless the plaintiff has entered judgment against a defendant under rule
4(1) or has entered judgment (final or interlocutory) or applied for judgment
against a defendant under Order 19, the plaintiff must, within 7 days after a
notice under rule 2 is given, cause an address for service to be entered in
the cause book and either- (L.N. 152 of 2008)

   (a)  take out and serve on the defendant a case management summons
        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 case management summons 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 case management summons. (L.N. 152 of 2008)
(Enacted 1988)