Notice of Originating Motion (Form 64)

Order 4 r 1 of the Rules of the Supreme Court 1971 (WA) sets how civil proceedings start: actions by writ, proceedings to be heard in chambers by originating summons, and all other civil proceedings by originating motion. Order 54 r 5 requires the notice of an originating motion to be in Form 64 and to contain a concise statement of the claim or the relief sought. The notice is issued out of the Central Office when sealed (r 6). Several Orders and Acts also say expressly that an application is made by originating motion in Form 64, for example certain applications under Order 81FA (Criminal Property Confiscation Act 2000) and Order 39A (Trans-Tasman Proceedings Act 2010).

When you need it

• A rule or Act requires the proceeding to be started by originating motion.
• The proceeding is neither an action (writ) nor a chambers proceeding (originating summons) (O 4 r 1).
• The application may properly be made ex parte under the relevant rule; otherwise notice must be given to the party affected (O 54 r 3).

1. 1

   Select the division and enter the parties

   Delete either General Division or Court of Appeal, and name the parties as plaintiff and defendant.

2. 2

   State the application

   In the Notice section, name the applying party and state concisely the nature of the claim or the relief sought (O 54 r 5(3)).

3. 3

   Set out the grounds

   List the grounds of the application in numbered paragraphs.

4. 4

   Complete the hearing details

   Insert the date and time and delete the venue that does not apply: the Supreme Court at the David Malcolm Justice Centre, 28 Barrack Street, or the Court of Appeal at Stirling Gardens.

5. 5

   Short notice, if ordered

   If the Court has abridged the time for service under O 54 r 4, complete the short notice paragraph with the date of that order, as r 5(2) requires. Otherwise delete it.

6. 6

   Service details and signature

   Give the applicant's service details under Order 71A: lawyer's name and business address if represented, postal address for service, and optional email and fax. The applicant or lawyer signs and dates it.

• File through eLodgment on the eCourts Portal (O 67A r 3). The notice is issued when it is sealed (O 54 r 6). The Court's forms page lists 2 copies for filing. A filing fee applies - check the current General Division fee schedule.
• Unless the Court orders otherwise, there must be at least 2 clear days between service of the notice and the hearing day (O 54 r 4). Some rules set a longer period, for example 7 clear days for applications under O 39A.
• Serve the notice personally on a person who has not entered an appearance (O 54 r 7(2); O 9 r 5).
• Evidence may be given by affidavit on an originating motion, but the Court may order the deponent to attend for cross-examination (O 36 r 2(3)).

• Check the Order or Act under which you are applying: it may set its own service period, parties to serve and supporting documents.
• Form 64 starts a proceeding. A motion within an existing proceeding uses Form 65 (O 54 r 5(1)).
• Be concise in the relief sought: the notice is what the respondent and the Court rely on to know the case.