Summons (General Form) (Form 77)

Applications in a pending proceeding that are made in chambers follow Order 59 of the Rules of the Supreme Court 1971 (WA) (O 4 r 2). An application that is not ex parte is made by summons (O 59 r 3(1)) and must state the orders sought and the grounds (r 3(3)). A summons other than an originating summons must be in Form 77, addressed to everyone it is to be served on (r 4(1)), is issued when sealed (r 4(2)) and cannot be amended after issue without leave (r 4(4)). No order is made unless the application is filed with a memorandum of conferral (r 9). In a case-managed proceeding, a request for an interlocutory order is usually made by letter to the case manager, and a summons is used only where the circumstances justify one (O 4A r 5A(2)).

When you need it

• You want an interlocutory order in an existing proceeding, for example about discovery, amendment or time, and a summons is justified rather than a letter request (O 4A r 5A).
• The rules or an order say the application must be made by summons, such as leave to enter judgment for costs under O 13 r 10 or removal of a lawyer from the record under O 8 r 6.
• If the application is ex parte, it is made by motion instead (O 59 r 3(1)(b)(i)).

1. 1

   Complete the heading

   Enter the proceeding number and the parties as they appear in the proceeding. Replace the '201_' year in the template.

2. 2

   Fill in the return date

   Insert the day, date and time for the hearing.

3. 3

   Identify the applicant and the orders

   State which party applies and the orders or directions sought, with the grounds (r 3(3)). Number each order.

4. 4

   Date and taken out by

   Date the summons and give the name and address of the lawyer or self-represented party who takes it out.

5. 5

   Address it

   In the 'To' lines, name every person on whom the summons is to be served (r 4(1)).

• File with the summons a memorandum of conferral in Form 108, or a Form 109 memorandum supporting waiver if seeking to have the requirement waived, plus any supporting affidavit (r 9; CPD 4.3.2).
• File through eLodgment on the eCourts Portal (O 67A r 3). The Court's forms page lists 2 copies. A filing fee applies - check the General Division fee schedule.
• Serve the summons at least 7 days before the return day unless the Court or the rules allow less. A summons only seeking to extend or abridge time may be served the day before (r 5(1) and (2)).
• An affidavit opposing the summons must be filed and served at least 2 days before the return day (r 5(3)).

• Conferral must be a real exchange of views shortly before the application, normally face to face or by telephone. A note at the foot of the summons is not enough; file a separate memorandum (CPD 4.3.2 pars 5 to 8).
• Do not refer to the conferral in your affidavits without leave (CPD 4.3.2 par 9).
• Once issued, a summons cannot be withdrawn without leave (O 23 r 5).