Superior Court Rules

ORDER 38

HEARING OF PROCEEDINGS COMMENCED BY SPECIAL SUMMONS

1. Every special summons shall be returnable for such day as the Master shall fix, which, except in such cases where the parties consent to an earlier date, or where no service is required, shall be not less than seven days from the date of issue, and shall, where necessary, be served on the parties concerned at least four days before the return day. An affidavit verifying the claim indorsed on the summons shall be filed in the Central Office and notice of such filing shall be given to the parties concerned.

2. The court may direct such other persons to be served with the summons as it may think fit.

3. Save in so far as the court shall otherwise order, proceedings commenced by special summons shall be heard on affidavit: provided that any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross-examination, and unless such deponent is produced accordingly his affidavit shall not be used as evidence unless by the special leave of the court.

4. In cases in which the Master has jurisdiction, he shall have the same power as the court to hear oral evidence or to direct additional service.

5. In all cases in which he shall have jurisdiction, the Master may decide the matter himself or put it in the court list for hearing.

6. In all cases in which he shall not have jurisdiction, and in all such other cases which he shall decide to put in the court list for hearing, the Master shall transfer the summons, when in order for hearing, to the court list for hearing on the first opportunity.

7. For the purposes of rule 6, or for the purpose of any hearing before himself, the Master may extend the time for filing affidavits and give such directions and adjourn the case before himself as he shall think fit.

8. If at any stage during the course of proceedings instituted by special summons it shall appear to the court that the determination of some question or questions of fact is necessary for the proper decision or ruling as to the relief to be granted in such proceedings or as to any matter arising therein, the court may determine such question or questions of fact either by directing the trial of issues in regard thereto or in such other manner (whether summary or otherwise) as may seem convenient for doing justice between the parties; and evidence as to the said question or questions of fact may be given either orally or by affidavit or partly orally and partly by affidavit as the court may in the circumstances think proper.

9. On the hearing of any special summons, the Master, in a case within his jurisdiction, or the court, as the case may be, may give judgment for the relief to which the plaintiff may appear to be entitled or may dismiss the action or matter or may adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons with such directions as to pleadings or discovery or settlement of issues or otherwise as may be appropriate, and generally may make such order for determination of the questions in issue in the action or matter as may seem just.

10. The court may give any special directions touching the carriage or execution of the order, or the service thereof upon persons not parties, as it may think just.

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