Part 40 – Appointment of Referee to Inquire and Report

Power to order trial before referee

40.1

1. If the –
   1. court considers that the claim requires –
      1. prolonged examination of documents; or
      2. scientific or local investigation which cannot conveniently be carried out by the court;
   2. matters in dispute are wholly or mainly a matter of account; or
   3. parties agree; then subject to rule 40.7, then the court may order the claim or any issue or allegation to be tried by a referee.

Reference to referee to inquire and report

40.2

1. The court may refer to a referee for inquiry and report any question or issue of fact arising in a claim.

Appointment of referee         

40.3

1. The general rule is that a referee must be appointed at a case manage­ment conference or pre-trial review.
2. The referee must be a person agreed on by the parties or, if they fail to agree, a person selected by the court in accordance with paragraph (3).
3. If the parties cannot agree who should be the referee, the court may –
   1. select the referee from a list prepared or identified by the parties; or
   2. direct that the referee be selected in such other manner as the court directs.
4. The court must identify the question or issue upon which the referee is to report.
5. The court must decide what fee is to be paid to the referee and by whom.
6. Notwithstanding paragraph (5), the court may ultimately order any party to pay the fee of the referee.

Conduct of reference   

40.4

1. For the purpose of the inquiry, the referee has the same powers as the court other than the power to commit for contempt of court.
2. Unless the court otherwise orders, the referee must adopt the simplest, least expensive and most expeditious method of conducting the refer­ence.
3. The referee may hold the trial or conduct the inquiry at any place and at anytime which appears to the referee to be convenient to the parties.
4. If a person served with a witness summons to appear before a referee –
   1. fails to attend;
   2. refuses to answer any lawful question or produce any document at the inquiry; or
   3. refuses to be sworn or affirm for the purposes of the inquiry; the referee must sign and file a certificate of such failure or refusal.
5. Any party may apply to the court for an order requiring the person served with the witness summons to appear before a referee to attend, be sworn or affirmed, or answer any question or produce any docu­ment, as the case may be.
6. An application for an order under paragraph (5) maybe made without notice but must be supported by evidence on affidavit.
7. In the case of non-attendance, the affidavit must prove –
   1. service of the witness summons; and
   2. that the person served with the witness summons was paid or offered the payments required by rule 33.6.
8. An order under this rule must be served personally on the person served with the witness summons and be endorsed with a notice in accordance with the first form in rule 53.3(b).
9. A person who willfully disobeys an order made against that person under this rule commits contempt of court.
10. The court may order the person against whom an order is made under this rule to pay any costs resulting from the –
    1. failure to attend before a referee;
    2. refusal to answer any lawful question or produce any document at the inquiry; or
    3. refusal to be sworn or to affirm for the purpose of the inquiry.
       • Part 53 deals with the procedure to apply to commit a person for contempt of court.

Report following reference

40.5

1. The report of the referee is to be made to the court.
2. The referee must supply a copy of the report to each party.
3. The referee may in the report –
   1. make a special statement of facts from which the court may draw inferences; or
   2. submit any question for the decision of the court.

Consideration of report by court

40.6

1. Upon receipt of the report of the referee, the court office must fix a date, time and place for consideration of the report by the court.
2. The court office must give 14 days notice to the parties of such consideration.
3. The court may –
   1. adopt the report in whole or in part;
   2. ask the referee to explain any part of the report;
   3. decide the question or issue on the evidence taken by the referee;
   4. direct that additional evidence be given to the court;
   5. remit any question or issue for further consideration; or
   6. vary the report.

Restrictions on appointment of referee in a claim by or against Crown

40.7

1. In a claim by or against the Crown an appointment of a referee may not be made without the consent of the relevant Attorney General.