Constitutional references used to proceed to hearing with no written statement of the opposing positions beyond the reference itself. Order 4 Division 10, added to the 2012 Rules, requires every respondent and intervener to put its case on paper first, briefly.
The rule
A party, whether original or by grant of leave to intervene, shall within 14 days of the date of service of the originating proceedings or grant of leave to intervene, file an appearance in the proceedings and file and serve a Statement of Response in Form 4A signed by the respondent parties or their lawyers stating: (a) in the case of an intervener, the date on which leave to intervene was given; (b) in the case of an application under section 18(1), whether the respondent supports or opposes the standing of the applicant; (c) in the case of a reference under section 18(2) or section 19, the interpretation or answer for which the respondent contends; (d) in the case of a section 18(1) application, within 14 days after notice that the Court has declared standing, plead to the application and state succinctly the case for the intervener; (e) the Statement of Response shall not exceed by more than one A4 page the length of the application, and the Registrar shall not accept longer statements for filing.
Within 7 days of service on an applicant of a Statement in Response the applicant may file a reply.
Form 4A
The form is short by design. Under the heading of the application or reference, it is entitled “Statement of Response by (name of party)” and reads: “In relation to the question put to the Court by the applicant/referrer this respondent: 1. Supports/opposes the application; 2. This respondent states, in support of the case that: (set out the argument in short numbered paragraphs).” It is dated and signed by the respondent or its lawyer. Form 1 notes that “a respondent or intervener may file a Statement of Response”, and Rule 25 makes it mandatory. The form is on the Supreme Court Forms page.
What goes in it
| Proceeding | Statement of response must state | When |
|---|---|---|
| Section 18(1) application (Form 1) | Whether the applicant’s standing is supported or opposed, and why | 14 days from service |
| Section 18(1) application, after standing declared | The respondent’s answer to the interpretation sought, in short numbered paragraphs | 14 days from notice of the declaration |
| Section 18(2) reference (Form 2) | The interpretation or answer the respondent contends for on each question | 14 days from service |
| Section 19 special reference (Form 3) | The answer contended for on each question, and any objection that the question is trivial, hypothetical or not properly referred | 14 days from service |
| Intervener in any of the above | The date of leave to intervene, then as above | 14 days from leave |
The length cap
Rule 25(e) is a hard limit enforced at the counter. A Form 1 application that runs to three pages permits a response of four. The cap forces the response to state positions, not argue them; the argument comes later in the written submissions under Order 11 Rule 12 and the extract of argument under Rule 18. A party that wants to raise a distinct point, such as that the question is hypothetical under Rule 18 of Order 4, states it in a numbered paragraph and develops it in submissions.
Why it matters
The statement of response fixes the issues. A reference asks the Court a question; the responses tell the Court and the other parties what answers are contended for, so that the directions hearing can identify the legal issues under Order 13 Rule 8(d)(iii) and allocate hearing time. A party that files no response has entered no appearance and has no address for service, and the Court may proceed without it. A party that files a response contending for one answer and argues another at the hearing invites the objection that the other side had no notice. The reply under Rule 26 lets the applicant or referrer narrow the dispute further.
Interveners
An intervener is a person who was not named in the application but has been granted leave under Order 4 Rules 21 to 23 because it has an interest. The statement of response is the intervener’s first and defining document: it states the date of leave and the position taken. The Principal Legal Adviser, on whom every application and reference must be served under Rule 13, ordinarily files a response as of right as a party. See intervening in a constitutional reference and applying under section 18(1).
The appearance
Rule 25 pairs the statement of response with an appearance, in Form 16, carrying the Form 17 address for service. Documents in the reference are then served at that address under Order 11 Rule 7. See the notice of appearance.
Sources
- Supreme Court Rules 2012 — O 4 rr 13, 18–26; O 11 rr 2, 7, 12, 18; O 13 r 8; Forms 1, 4A, 16, 17
- Constitution — ss 18, 19
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.