BALM MARITIME CO. ν. BIOCHEMIE R.O.S.E,
(1989)1 CLR 42 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1989)1 CLR 42 1989 January 7 (STYLIANIDES, J.) BALM MARITIME COMPANY LIMITED, Plaintiffs, v. BIOCHEMIE R.O.S.E. LIMITED, Defendants. (Admiralty Action No. 52/84). Admiralty - Practice - The Admiralty Jurisdiction Order, 1893, Rule 237- The English Rules applicable in virtue thereof are the Rules in force on the day preceding Independence day. Admiralty - Practice - Applications (interlocutory)-The order of addressing the Court In cases where no oral evidence is adduced, but only the affidavits and the cross-examination of the deponents, the party on whom the burden of proof lies, is the first to address the Court - In applications where oral evidence is heard the practice is to follow the practice applicable for trials, I e. the party, who had called the last witness, is the first to address the Court. This is an application to set aside a Judgment obtained by default of appearance. The respondents plaintiffs adduced oral evidence. In the light of the practice followed by the Court the Court ruled that the respondents-plaintiffs, who had called the last witness, should be the first to address the Court. Order accordingly. Cases referred to: Asimenos v. Paraskava
(1982)1 C.L.R.
- Application. Application by defendants for an order setting aside the 20 judgment given against them in default and for leave to appear and defend the action. M. Montanios, for applicants - defendants. L. Papaphilippou, for respondents - plaintiffs. Cur.adv. vult STYLIANIDES J. read the following decision. In the present case Judgment was given by default of appearance. The defendants by written application by summons, based on Rules 41,44,46,203-212 and 237 of the Rules of the Supreme Court in its Admiralty Jurisdiction, sought an order of the Court setting aside the Judgment given in default of the defendants' appearance and permitting the defendants to appear in and defend the action. The facts relied upon were set out in a long affidavit sworn by Nicos Mavrokordatos, Director of the defendants. The plaintiffs - respondents filed notice of opposition, the facts relied upon in opposition were set forth in an affidavit sworn by their Director. The applicants and the respondents filed with their mutual consent and the leave of the Court supplementary affidavits. Both deponents were cross-examined and re-examined in length. On the application of Mr. Papaphilippou for the respondents plaintiffs, PeriklisDemetriou, the Director of the Cyprian Seaways Agencies Ltd., gave oral evidence as to whom they represented in the transaction, after leave and direction of this Court. Counsel disagreed as to who would address the Court first. Mr. Montanios submitted that counsel for the plaintiffs - respondents should address first as he called the last witness. He relied on the established practice of the Court and the old English Rules, Order 36, Rule 36, which regulates the summing up by counsel in trials of actions without a jury. He, also, invited the Court to draw guidance from Order 33, Rule 7(a)(ii) of the Civil Procedure Rules. Mr. Haviaras, on the other side, submitted that the party upon whom the burden of proof lies should address the Court first. This was an application and not an action. He referred to Rules 116 and 142 of the Cyprus Admiralty Rules. The present proceedings are an application under Rule 203 which provides that a party desiring to obtain an order from the Court or Judge shall ordinarily make oral application for the same, but the Court or Judge may, on the application being made, direct that a written application be furnished. Evidence on an application for an order shall in general be given by oral examination of witnesses, but the mode or modes in which evidence shall be given, on any application, may be determined either by consent of the parties, or by direction of the Court or Judge (Rule 116). The deponents attended the Court for cross-examination by order of the Court as provided in Rule
- The only rule applicable in this application is Rule 208, which reads:- «When the application comes on for hearing, the Court or Judge, after hearing the parties, or, in the absence of any of them, on proof that the notice of the application has been duly served, may make such order as shall seem fit.» Where no provision is contained in the Cyprus Admiralty Rules of 1893, under Rule 237 the practice of the Admiralty Division of the High Court of Justice in England so far as the same shall appear to be applicable, shall be followed. In Asimenos v. Paraskeva
(1982)1 C.L.R. 145, it was held that the Rules of the Supreme Court, which were in force and applied in the Admiralty Division of the High Court of Justice in England on the day preceding the Independence Day, are the ones applicable by this Court in the exercise of its Admiralty Jurisdiction, to the extent contemplated by Rule 237. The English Order 36, Rule 36 relates to speeches upon trial of actions. There is no specific provision as to the order of speeches in applications or motions. It is the well settled practice of the Coutts in this country that in applications where no oral evidence is adduced, except the affidavits and the cross-examination of the deponents, the party on whom the burden of proof lies is the first party to address the Court. In applications in other jurisdictions of this Court and of the Courts of this country in general, where other oral evidence is heard, though the Rules are silent, the practice and procedure for the trial of actions is followed and applied. A trial Court in conducting the hearing of a case and directing the various phases of trial usually has to make a number of rulings. In general these questions are to be decided more upon what justice to the parties requires than upon any direct rules of practice. This reflects the practice which is appropriate and right to follow. I see no reason why I should depart from the practice in applications in general. The party who called the last witness should sum up and address the Court and counsel for the other party to reply. This is consonant to justice and convenience. I direct, therefore, that counsel for the respondents - plaintiffs who called the last witness to address the Court first and counsel for the applicants - defendants to reply. Order Accordingly. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο