Originating Summons (Appearance Required) (Form 74)

Under O 58 r 1 of the Rules of the Supreme Court 1971 (WA), civil proceedings between parties that may be heard in chambers are started by originating summons, in Form 74 or Form 75 (r 14(1)). Form 74 requires the defendant to enter an appearance within the time stated after service. Typical uses include questions arising in the administration of estates and trusts (rr 2 and 3), the construction of a will, deed or other written instrument (r 10), the construction or validity of legislation affecting a claimed right (r 11) and vendor and purchaser questions under a land contract (r 13). The time for appearance is calculated using the table in O 5 r 11 (r 16), and Order 12 on appearance applies (r 17(5)).

When you need it

• Your proceeding is to be heard in chambers and is not one of the cases in O 58 r 18 where no appearance is needed.
• You are an executor, administrator, trustee or beneficiary seeking directions or the determination of a question (rr 2 and 3).
• You seek a declaration on the construction of a will, deed, contract or legislation (rr 10 and 11).
• Family provision claims use a separate originating summons under Order 75, listed separately on the Court's forms page.

1. 1

   Complete the heading

   Name the applicant as plaintiff and the others as defendants (r 14(2)), titled in the matter of the Act and section relied on and the estate, trust, property or person concerned (r 14(5)).

2. 2

   Fill in the defendant and appearance time

   Insert the defendant's name and address and the number of days after service within which an appearance must be entered, excluding the day of service. For service in WA this is at least 10, 16 or 21 days depending on distance from Perth (O 5 r 11; O 58 r 16).

3. 3

   State who applies and the claim

   Give the plaintiff's name and address and state the nature of the claim, that is, the questions to be decided or the orders sought.

4. 4

   Complete the taken out by details

   Give the lawyer's or self-represented plaintiff's name and address for service, with the service details Order 71A requires. Keep the note to the defendant.

• File through eLodgment on the eCourts Portal (O 67A r 3). The summons is issued when sealed (r 14(3)). The Court's forms page lists 2 copies. A filing fee applies - check the current General Division fee schedule.
• Serve it personally: O 9 rules 1 to 4 (except r 1(4)) apply as they do to a writ (O 9 r 5). It is valid for service for 12 months unless extended (O 58 r 15 applying Order 7).
• The defendant enters an appearance with Form 6 and gives notice to the other parties (r 17).
• When ready, the plaintiff obtains a hearing appointment fixed by a sealed Form 76 notice and serves it, with the supporting affidavits, on each defendant who appeared at least 14 days before the hearing (r 19).

• Do not apply for a hearing appointment until you are ready to proceed and the matter is ready for hearing (r 19(2)).
• Evidence at the hearing is by affidavit unless the Court orders otherwise (r 21), so prepare affidavits early.
• The Court may refuse to decide a question of construction on originating summons if it ought not to be decided that way (r 12).