Order 1 Preliminary
1 Short
title [see Note 1]
These Rules may be cited as the Federal Court
Rules.
2 Commencement
These Rules shall come into operation on 1 August
1979.
3 Repeal
Upon the coming into operation of these Rules, the
Federal Court of Australia Rules, being Statutory Rule No. 20 of 1977 and
Statutory Rule No. 220 of 1977, are repealed.
4 Interpretation
In these Rules, unless the contrary intention
appears:
the Act means the Federal Court of
Australia Act 1976.
arbitration means arbitration conducted under
an arbitration order.
arbitration order means an order referring a
matter to an arbitrator as mentioned in Order 72, rule 1.
arbitrator means an arbitrator to whom a
matter is referred under an arbitration order.
Australia or the Commonwealth
means the Commonwealth of Australia and when used in a geographical sense
includes external territories.
Bankruptcy Rules means the Federal Court
(Bankruptcy) Rules 2005.
committee includes a person entrusted under a
law of the Commonwealth, or of a State or Territory, with the care or
management of the person or estate of a mentally disabled person.
Commonwealth means the Commonwealth of
Australia and includes a Territory.
corporation includes any artificial person
other than an organisation.
Corporations Rules means the Federal Court
(Corporations) Rules 2000.
cross‑claim includes a counter‑claim, cross‑action,
set‑off, and third party claim.
directions hearing means a directions hearing
appointed in an application pursuant to Order 4, and except for the purposes of
computation of time within which acts must be done, includes any other hearing
on which the Court gives directions as to the conduct of the proceedings.
document includes any record of information
which is a document within the definition contained in the Dictionary
in the Evidence Act 1995 and any other material data or information
stored or recorded by mechanical or electronic means.
document exchange means a facility or service
through which a member of the facility or service may send a document to
another member of the facility or service.
document exchange box means a box in a
document exchange.
electronic communication means a
communication of information in the form of data, text or images by means of
guided or unguided electromagnetic energy, including an email or an email
attachment.
email address means the mailing address to
and from which an electronic communication may be sent and received using the
Internet, an intranet or other similar network.
examination includes where relevant an
examination held pursuant to an order made under Order 24, and, in proceedings
under Division 1 of Part 2 of the Foreign Evidence Act 1994, includes
any proceeding for the taking of evidence of a person conducted by the judicial
authorities of a foreign country in relation to a letter of request issued as a
result of an order made by the Court under that Part.
examiner includes an officer of the Court or
any other person appointed under Order 24, or under paragraph 7 (1) (a) or (b)
of the Foreign Evidence Act 1994, for the purpose of an examination
before the examiner of any person.
hearing includes any hearing before the
Court, whether final or interlocutory, and whether in open court or in
chambers.
image means a picture that has been created,
copied, stored or transmitted in electronic form.
Judge means a Judge of the Court (including
the Chief Justice) and in the expression ‘the Court or a Judge’ means a Judge
sitting in chambers.
legal practitioner means a person:
(a) who is:
(i) a barrister; or
(ii) a solicitor; or
(iii) a barrister and solicitor; and
(b) who is lawfully entitled to practise as such
in a federal court.
mediation means mediation conducted under a
mediation order.
mediation or arbitration order means a mediation
order or an arbitration order.
mediation order means an order referring a
matter to a mediator as mentioned in Order 72, rule 1.
mediator means a mediator to whom a matter is
referred under a mediation order.
mentally disabled person means a person who,
owing to mental illness, is incapable of managing his or her affairs in respect
of the proceedings.
oath includes affirmation.
organisation has the meaning given by
subsection 4 (1) of the Workplace Relations Act 1996.
person under disability means an infant,
minor or mentally disabled person.
pleading includes a statement of claim and a
cross‑claim to which Order 5 applies and subsequent pleadings, but does not
include an application, notice of motion or affidavit.
proper place in relation to any proceeding:
(a) where there has been no transfer means the
place at which the proceeding was commenced;
(b) where there has been a transfer means the
place to which the proceeding was transferred.
Registrar
means the Registrar or a District Registrar of the Court, and includes a Deputy
Registrar or a Deputy District Registrar of the Court or other officer for the
time being discharging the duties of any one of them, and when used in relation
to any proceeding means the Registrar or District Registrar at the proper
place.
Registry includes the Principal Registry and
a District Registry.
Rules means Federal Court Rules.
Sheriff includes a Deputy Sheriff or any
person for the time being discharging the duties of Sheriff or Deputy Sheriff.
solicitor includes a current practitioner
within the meaning of subsection 3 (1) of the Legal Practice Act 1996
(Vic).
trial includes any hearing other than an
interlocutory hearing.
tutor means a next friend, guardian ad litem
or committee of the person or estate of a person under disability.
4A Exercise
of Court’s power
Unless these Rules provide otherwise, the Court may
exercise a power under these Rules in a proceeding:
(a) on its own initiative; or
(b) on the application of a party, or a person
who has sufficient interest in the proceeding.
5 Order
on terms
Unless the contrary intention appears, where under
these Rules the Court has the power to make an order or do any other act or
thing, it may make that order or do that other act or thing on terms.
5A Filing
and lodging documents
(1) A document that is required or permitted by these
Rules to be filed or lodged may be:
(a) presented to a Registry when the Registry is
open for business; or
(b) sent by post to a Registry with a written
request for the processing required; or
(c) sent by document exchange by being left,
addressed to the Federal Court of Australia, at its box at the Australian
Document Exchange, with a written request for the processing required; or
(d) sent by facsimile transmission to a Registry
in accordance with rule 5AB; or
(e) sent by electronic communication to a
Registry in accordance with rule 5AC.
(2) However, a document
may not be sent:
(a) by facsimile transmission if the document
(including any annexure or attachment) is more than 20 pages long; or
(b) by electronic communication if the document
(including any attachment) is more than 100 pages long; or
(c) by facsimile transmission or electronic
communication if it is an affidavit referred to in paragraph 4.07 (b) of
the Bankruptcy Rules.
Note Because of the Court’s computer
security firewall, the Court cannot accept an electronic communication that is
more than 5 megabytes in size.
(3) If a document is required to be signed or stamped,
it must be accompanied by the number of copies required, unless it is sent by
facsimile transmission or electronic communication.
(4) If the fee for a document to be filed is not
payable, the document must be accompanied by a statement of the reason it is
not payable and any supporting evidence.
(5) A document presented, or sent in accordance with
paragraph (1) (b) or (c), to a Registry that is not the proper place for the
proceeding, must be accompanied by a letter:
(a) identifying the proper place; and
(b) requesting that the document be sent to the proper
place.
(6) A document is filed:
(a) for a document in an existing
proceeding — if it is accepted in the Registry that is the proper place
for the proceeding and stamped in accordance with Order 46, rule 4; or
(b) otherwise — if it is accepted in a
Registry and stamped in accordance with Order 46, rule 4.
(6A) If a document in an existing proceeding:
(a) is presented to or sent in accordance with
paragraph (1) (b) or (c) to a Registry that is not the proper place; and
(b) is sent by that Registry to the proper place;
and
(c) is filed in accordance with paragraph (6)
(a);
the document is taken to have been filed on the day when it was
received by the Registry that is not the proper place.
(7) However, a document sent by facsimile transmission
or electronic communication is, if accepted, taken to have been filed:
(a) if the whole document is received by 4.30 pm
on a day when the Registry is open for business — on that day; and
(b) otherwise — on the next day when the
Registry is open for business.
Note Because of the Court’s computer
security firewall, there may be a delay between the time a document is sent by
electronic communication and the time the document is received by the Court.
(8) A document must not be accepted, without leave of
the Court, a Judge or a Registrar, if it appears to a Registrar that the
document:
(a) is not substantially complete; or
(b) does not
substantially comply in form with these Rules; or
(c) is not
properly signed or executed.
(9) A document must not be accepted if a Registrar,
under Order 46 rule 7A:
(a) refuses to accept or issue the document; or
(b) is directed by a Judge to refuse to accept or
issue the document; or
(c) is directed by a Judge to refuse to accept
or issue the document without first obtaining the leave of a Judge.
(10) If a document sent in accordance with paragraph
(1) (b), (c), (d) or (e) is not accepted, the Registrar must notify the
sender of the document:
(a) by telephone on the telephone number stated
on the document, cover sheet or accompanying request; or
(b) in writing to the postal address or facsimile
number stated on the document, cover sheet or accompanying request; or
(c) by electronic communication to the email
address stated on the document, cover sheet or accompanying request.
(11) If a document sent to a Registry by post or document
exchange is required to be signed or stamped, and is accepted at the Registry,
the Registrar must:
(a) if the sender requests that the document be
held for collection — hold it for collection for 7 days; or
(b) if the sender does not request the document
to be held for collection, or having made a request does not collect the
document within 7 days — return the document in the same way it was sent.
Note See Part 2 of the Federal Court
of Australia Regulations 2004 in relation to fees for filing documents.
5AB Filing
and lodging by facsimile transmission
(1) The Registrar must approve at least one facsimile
number for each Registry for the purpose of receiving documents.
(2) A document sent to a
Registry by facsimile transmission must be:
(a) sent to an approved facsimile number for the
Registry; and
(b) accompanied by
a cover sheet clearly stating:
(i) the sender’s name, postal address,
document exchange number (if any), telephone number and facsimile number; and
(ii) the number of pages transmitted;
and
(iii) the processing of the document
required.
(3) If the document is in an existing proceeding, it
must be sent to an approved facsimile number for the Registry which is the
proper place for the proceeding.
(4) If the document is required to be signed or stamped,
and is accepted at the Registry, the Registrar must:
(a) make one copy of the document; and
(b) if the sender requests that the document be
held for collection — hold it for collection for 7 days; and
(c) if the sender does not request the document
to be held for collection, or having made a request does not collect the
document within 7 days — return the document by sending it:
(i) by facsimile transmission to the
facsimile number stated on the cover sheet; or
(ii) if there is no facsimile number
stated, to the postal address stated on the cover sheet.
(5) If more than one copy is required for issue, the
sender of the document must send, or ask the Registry to make, any additional
copies required.
(6) A person who sends a document to a Registry by
facsimile transmission must:
(a) keep the original document and the
transmission report evidencing successful transmission; and
(b) produce the original document or the transmission
report as directed by the Court.
(7) If the court directs that the original document be
produced, the first page of the document must be endorsed with:
(a) a statement that the document is the
original of a document sent by facsimile transmission; and
(b) the date that the document was sent by
facsimile transmission.
5AC Filing
and lodging by electronic communication
(1) The Registrar:
(a) must approve the formats in which electronic
versions of documents will be accepted by a Registry; and
(b) may approve at least one email address for
any Registry for the purpose of receiving documents by electronic
communication.
(2) A document sent to a
Registry by electronic communication must:
(a) be sent:
(i) by using the Court’s Internet home
page at http://www.fedcourt.gov.au or the Commonwealth Courts Portal at https://www.comcourts.gov.au;
or
(ii) to an email address approved for
the Registry; and
(b) be in an electronic format approved for the
Registry; and
(c) to the extent practicable, be in a form that
complies with rule 7; and
(d) be capable of being printed with the content
and in the form in which it was created.
(3) An affidavit may only be filed by electronic
communication by sending an image of the affidavit in accordance with subrule (2).
(4) If the document is in an existing proceeding, it
must be sent to the Registry which is the proper place for the proceeding:
(a) by using the Court’s Internet home page at http://www.fedcourt.gov.au
or the Commonwealth Courts Portal at https://www.comcourts.gov.au; or
(b) by addressing it to an email address approved
for that Registry.
(5) Subject to subrule (5A), if the document is
required to be signed or stamped, and is accepted at the Registry, the
Registrar must:
(a) for a document that, under these Rules, must
be endorsed with a date for hearing — insert a notice of filing and
hearing in accordance with Form 173 as the first page of the document; and
(b) for any other document — insert a notice
of filing in accordance with Form 174 as the first page of the document; and
(c) make one copy of the document (including the
notice mentioned in paragraph (a) or (b) (whichever is applicable)); and
(d) if the sender requests that the document be
held for collection — hold it for collection for 7 days; and
(e) if the sender does not request the document
to be held for collection, or having made a request does not collect the
document within 7 days — return the document by sending it:
(i) by electronic communication to the
email address stated on the cover sheet; or
(ii) if there is no email address
stated, to the postal address stated on the cover sheet.
(5A) Paragraphs (5) (a) and (b) do not apply in
relation to a subpoena.
(7) A person who sends a document to a Registry by
electronic communication must:
(a) keep a paper copy of the document; and
(b) produce the paper copy of the document as
directed by the Court.
(8) If the Court directs that the paper copy of the
document be produced, the first page must be endorsed with:
(a) a statement that the paper copy is a true
copy of the document sent by electronic communication; and
(b) the date that the document was sent by
electronic communication.
6 Serial
number
(1) The first document filed in any proceeding shall
have a serial number assigned to it for the Registry in which it is filed, and
that and each other document in the proceeding shall bear that number preceded
by a reference to the appropriate Registry together with a reference to the
calendar year in which the first document is filed.
(2) A new series of numbers shall be commenced at the
beginning of each calendar year.
7 Forms
(1) Subject to subrule (2), the forms in Schedule 1
shall be used where applicable notwithstanding the absence of any specific
provision in the Rules in respect of the use of any particular form.
(1A) A reference in a provision of the Rules to a Form by
number is to be read as a reference to the Form so numbered in Schedule 1.
(2) It shall be sufficient compliance with these Rules
as to the form of any document if the document is substantially in accordance
with the requirement or has only such variations as the nature of the case
requires.
8 Relief
from rules
The Court may dispense with compliance with any of
the requirements of the Rules, either before or after the occasion for
compliance arises.
9 Proceedings
wanting or in doubt
(1) Where a person desires to commence a proceeding or
take any step in a proceeding, and the manner or form of procedure is not
prescribed by the Act or the Rules or by or under any other Act, or that person
is in doubt as to the manner or form of procedure, the Court may give
directions.
(2) A proceeding commenced in accordance with the
directions of the Court shall be well commenced.
(3) A step taken in accordance with the directions of
the Court shall be regular and sufficient.
Order 2 Sittings and vacation
1 Sittings
The sittings of the Full Court in the Court’s
appellate jurisdiction shall be held in each year at such times and places as
the Chief Justice directs.
Order 3 Time
1 Month
In any judgment or order and in any document in any
proceeding, unless the context or subject matter otherwise indicates or
requires, month means calendar month.
2 Reckoning
(1) Any period of time fixed by rules or by any judgment
or order or by any document in any proceeding, shall be reckoned in accordance
with this rule.
(2) Where a time of one day or a longer time is to be
reckoned by reference to a given day or event, the given day or the day of the
given event shall not be counted.
(3) Where, apart from this subrule, the period in
question, being a period of 5 days or less, would include a day on which the
Registry is closed, that day shall be excluded.
(4) Where the last day for doing a thing is a day on
which the Registry is closed, the thing may be done on the next day on which
the Registry is open.
(4A) In calculating the time fixed by these Rules or by any
order fixing, extending or abridging time, the period from 24 December to
14 January next following is excluded, unless the Court otherwise orders.
(5) Subsection 36 (2) of the Acts Interpretation Act
1901 does not apply to these Rules.
3 Extension
and abridgment
(1) The Court or a Judge may by order extend or abridge
any time fixed by the Rules or by any judgment or order.
(2) The time may be extended under this rule, or any
other rule allowing for an extension of time (unless the rule provides
otherwise):
(a) before or after the time expires; and
(b) whether or not an application for extension
is made before the time expires.
(3) The period within which a person is required by
rules or by any order to serve, file or amend any pleading or other document
may be extended by consent without an order for extension.
4 Fixing
times
Where no time is fixed by the Rules or by any
judgment or order of the Court or a Judge for the doing of any thing in or in
connection with any proceeding, the Court may, by order, fix the time within
which the thing is to be done.
6 Registry
hours
(1) The District Registries of New South Wales and
Victoria shall be open to the public for business between 10 in the morning and
4 in the afternoon, except on Saturdays, Sundays and other holidays.
(2) The Principal Registry and the District Registries
of the States other than New South Wales and Victoria and of the Territories,
shall be open to the public for business from 10 in the morning until 1 in the
afternoon and from 2 until 4 in the afternoon, except on Saturdays, Sundays and
other holidays.
(3) A Registry may in the discretion of the Registrar,
and shall on the direction of a Judge, be opened at other times for urgent
business.
Order 4 Commencement of proceedings
1 Commencement
by application — Form 5
(1) Except as otherwise provided in these Rules all
proceedings in the Court’s original jurisdiction shall be commenced by filing
an application.
(2) An application shall be in or substantially in the
form numbered 5 in Schedule 1.
1A Certification
of merits of application commencing migration litigation
(1) For the purposes of section 486I of the Migration
Act 1958, a lawyer must not file an application commencing migration
litigation unless the application includes, or is accompanied by, a certificate
in accordance with Form 56B signed by the lawyer.
(2) In this rule:
lawyer has the meaning given by section 486K
of the Migration Act 1958.
migration litigation has the meaning given by
section 486K of the Migration Act 1958.
2 Parties
(1) A party claiming relief shall be called an
applicant.
(2) A party against whom relief is claimed shall be
called a respondent.
3 Relief
claimed
(1) An application must specify:
(a) the relief claimed by the applicant; and
(b) if the relief depends on a provision of an
Act — the Act and the provision.
(2) Where the claim for relief includes a claim for the
determination or direction of the Court on any question, the application shall
state the question.
(3) Costs need not be specifically claimed.
(4) Exemplary damages shall be specifically claimed.
4 Name,
address etc
(1) An application shall contain:
(a) the name and address of the applicant;
(b) where a party sues or is sued in a
representative capacity a statement of that fact;
(c) where the applicant sues by a solicitor, the
name, address, telephone number, facsimile number and email address of the
solicitor;
(d) where the applicant sues by a solicitor and
that solicitor has another solicitor as agent for him in the proceeding, the
name, address, telephone number, facsimile number and email address of the
agent; and
(e) an address for service.
(2) Where it appears from an application that the
applicant sues by a solicitor:
(a) the solicitor shall, on request in writing
by a respondent, declare in writing whether the application was filed by the
solicitor; and
(b) if the solicitor declares in writing that the
application was not filed by the solicitor, the Court may stay the proceeding.
5 Notice
to appear
Where there is a respondent, an application shall
bear a note that:
(a) if there is no attendance before the Court
by the respondent or a legal practitioner representing the respondent at the
time and place stated in the application, the proceeding may be heard and an
order may be made or judgment given against the respondent; and
(b) before any attendance at that time the
respondent must enter an appearance in the Registry.
6 Affidavit
or statement of claim — Form 7
(1) The applicant shall file and serve with the
application either an affidavit in accordance with Form 20, or a statement of
claim in accordance with Form 7, whichever is appropriate.
(1A) However, an applicant seeking to rely on an allegation
of fraud, misrepresentation, breach of trust, wilful default or undue influence
must file and serve a statement of claim.
(2) The affidavit or statement of claim shall show:
(a) the nature of the applicant’s claim; and
(b) the material facts on which it is based.
7 Filing
and copies
(1) Upon an application and affidavit or statement of
claim being filed, the Registrar on the applicant’s request shall sign, and affix
the seal of the Court to, a sufficient number of copies of the application for
service and proof of service.
(2) The serial number of the proceeding shall be
endorsed on each document.
8 Date
for directions hearing
Subject to rule 9, an application shall state a
date for a directions hearing.
9 Claim
for interlocutory relief
(1) Where by his application an applicant seeks
interlocutory relief, he shall make a distinct claim for that relief.
(2) A date for the hearing of the claim for
interlocutory relief shall be endorsed on the application.
(3) Where a date for hearing is endorsed on the
application under subrule (2), a separate date for a directions hearing shall
not also be endorsed on the application.
(4) At the hearing of the claim for interlocutory relief
the Court may give such directions as it thinks fit as on a directions hearing.
10 Endorsement
of date
(1) The date for a hearing under rule 8 or rule 9 to be
endorsed on the application shall be obtained from the Registry.
(2) Where the Court has made an order abridging time,
the application shall bear a note of the order made.
11 Time
for service
An application and affidavit or statement of claim
shall, unless the court otherwise orders, be served upon the respondent named
in the application in accordance with Order 7, not less than five days before
the date appointed for hearing pursuant to rule 8 or rule 9 of this Order.
12 Alteration
of hearing date
If a date for hearing has been obtained or made, the
Court may:
(a) alter the date for hearing to a later date;
and
(b) authorise the legal practitioner for a party
to make corresponding alterations in any copy for service of any application or
notice.
13 Alteration of date where service less
than 5 days before hearing
(1) Where an application and affidavit or statement of
claim have been served upon the respondent named in the application less than
five days before the date for hearing endorsed on the application pursuant to
Order 4, rule 8 or rule 9, the Court or Registrar may alter the date to a later
date and may authorise the solicitor for a party to give notice to that
respondent of that altered date for hearing by posting an altered copy of the
application by registered post to the usual or last known place of business or
abode of the respondent or to the place at which the application was served if
appropriate.
(2) The Registrar may give the authority by telephone or
by some other means as the Registrar thinks fit.
14 Suit
in person
(1) Subject to subrule (2) and to Order 43 (which
relates to disability), any person may proceed in the Court by a solicitor or
in person.
(2) Except as provided by or under any Act, a
corporation may not, without the leave of the Court, commence or carry on any
proceeding otherwise than by a solicitor.
15 Application
for the issue of a summons (Corporations Act s 596A, s 596B)
An application for the issue of a summons under
section 596A or 596B of the Corporations Act 2001 may be made to:
(a) the Court or a Judge; or
(b) if the Court
or a Judge has, under paragraph 35A (1) (h)
of the Act, directed that a Registrar may exercise the power of the Court under
section 596A or 596B of the Corporations Act 2001 — a Registrar,
including a Registrar sitting in chambers.
Order 5 Cross‑claims and third party claims
Note Order
35A deals with the procedure on default.
1 Claim
by respondent
(1) A respondent may cross‑claim against an applicant
for any relief to which the respondent would be entitled against the applicant
if the applicant were a respondent in a separate proceeding commenced in the
Court by the respondent for that purpose.
(2) A respondent may cross‑claim against any person
whether another party or a third party for any relief which is related to or
connected with the subject of the proceeding.
(3) Without prejudice to the generality of subrule (2),
a respondent may cross‑claim for contribution or indemnity.
2 Cross‑claim
(1) A cross‑claim shall be entitled in the proceeding
with an addition showing the names of the parties to the cross‑claim.
(2) Order 4, rule 3 applies to a cross‑claim whether the
cross‑claim is against an applicant or any other person.
3 Title
On a cross‑claim being filed, a document afterwards
filed or used in the proceeding shall be entitled in the manner in which the
cross‑claim is entitled.
4 Rules
applicable where statement of claim
Rules 5 and 6 of this Order apply where a
proceeding is commenced by application supported by statement of claim, or
where the Court has ordered that the proceeding continue on pleadings.
5 Pleading —
Forms 8, 9, 10
(1) A respondent may file a pleading by way of cross‑claim
within the time fixed for filing his defence or any extension thereof.
(2) A cross‑claim under subrule (1) shall be in or
substantially in the forms numbered 8, 9 or 10 in Schedule 1.
(3) Where a cross‑claimant cross‑claims solely against a
party who claims in the proceeding against the cross‑claimant, the cross‑claimant
may add the cross‑claim to his defence.
(4) Subject to Order 11, rule 16 (which relates to
embarrassing proceedings and the like), a cross‑claimant may in his cross‑claim
plead all or any of the facts on which he relies by reference to the prior
pleadings in the proceeding.
(5) A cross‑claimant shall, in addition to pleading any
other facts on which he relies, plead the facts showing that the cross‑claim is
one to which rule 1 of this Order applies.
6 Service
of prior pleadings — Form 11
(1) Where a respondent to a cross‑claim is made a party
to the proceeding by the filing of the cross‑claim, he may, by notice in
accordance with Form 11 filed and served on the cross‑claimant, require the
cross‑claimant to serve on him all or any of the pleadings in the proceeding
filed before the filing of the cross‑claim.
(2) A respondent to a cross‑claim may add a notice under
subrule (1) to his notice of appearance.
(3) Where a notice under subrule (1) is served on a
cross‑claimant then, unless the Court otherwise orders, he shall, within three
days after service of the notice or such longer times as may be specified in
the notice, serve on the respondent to the cross‑claim giving the notice each
pleading mentioned in the notice.
7 Rules
applicable where affidavit
Rules 8 and 9 apply where a proceeding is commenced
by application supported by affidavit and where:
(a) a cross‑claim is filed before the directions
hearing; or
(b) a cross‑claim is filed after the directions
hearing and the Court has not ordered that the proceedings continue on
pleadings.
8 Cross‑claims
by leave
(1) Subject to subrules 9 (1) and (2), a respondent may
cross‑claim against an applicant or any other party without the leave of the
Court, but may not cross‑claim against any other person not being a party
without such leave.
(2) Subject to subrule (4), a respondent shall not cross‑claim
against an applicant before he has filed an affidavit in reply to the
applicant’s claim.
(3) A cross‑claim shall be in or substantially in the
forms numbered 8 or 9 in Schedule 1, and shall be accompanied by an affidavit
stating:
(a) the nature of the cross‑claim;
(b) the material facts on which the cross‑claimant
relies; and
(c) the facts showing that the cross‑claim is
one to which rule 1 of this Order applies.
(4) A respondent who cross‑claims against an applicant
only may include the matters referred to in subrule (3) in his affidavit in
reply to the applicant’s claim, and need not file a separate affidavit in
support of the cross‑claim.
9 Cross‑claim
after directions hearing
(1) A respondent desiring to cross‑claim after the
directions hearing shall obtain all necessary directions at the directions
hearing in relation to the cross‑claim, including the time within which the
cross‑claim is to be filed.
(2) A respondent who does not obtain directions pursuant
to subrule (1) shall not cross‑claim after the directions hearing without the
leave of the Court.
10 Service
(1) Where a respondent to a cross‑claim has, on the date
of filing the cross‑claim, an address for service in the proceeding, the cross‑claimant
shall, on that date, serve the cross‑claim on the respondent to the cross‑claim.
(2) Where a respondent to a cross‑claim has an address
for service in the proceeding, personal service of the cross‑claim on him is
not required.
(3) Order 7, rule 11 (which relates to cases where
filing operates as service) does not apply to the service of a cross‑claim.
11 Conduct
of proceeding generally
(1) Subject to this Order and to Order 11, a proceeding
on a cross‑claim shall follow as nearly as may be the course of the proceeding
on the originating process in respect of which the cross‑claim is filed.
(2) Subject to this Order and to Order 11, and without
limiting the generality of subrule (1), these Rules apply to a cross‑claim and
the proceeding arising from it as they apply to the originating process in
respect of which the cross‑claim is filed and the proceeding arising from it.
(3) Subrules (1) and (2)
apply as if:
(a) the cross‑claim were the originating process
in respect of which the cross‑claim is filed;
(b) the cross‑claimant were an applicant; and
(c) the respondent to the cross‑claim were a
respondent.
(4) An applicant in an originating process need not
enter an appearance to a cross‑claim in the same proceeding.
(5) An appearance entered by a party to the proceeding
shall, upon service of a cross‑claim on him, operate as an appearance to the
cross‑claim.
(6) A cross‑respondent who has not previously entered an
appearance in the original proceedings shall enter an appearance:
(a) where the cross‑claim is served on him
before the date appointed for a directions hearing in the application in the
original proceeding — before that date; or
(b) in any other case — within 14 days after
service of the cross‑claim on him.
(7) Subject to this Order, the trial or hearing and all
other steps in the proceeding on the cross‑claim shall as far as practicable be
carried on together with the trial or hearing and similar steps in the
proceeding on the originating process in respect of which the cross‑claim is
filed.
12 Directions
(1) A party to the proceeding may, at any time after the
filing of a cross‑claim, move for directions.
(2) On any directions hearing, or on the trial or
hearing of the cross‑claim, the Court may:
(a) make any order or direction it may make
under Order 10 (which relates to directions hearings);
(b) order that any claim, question or issue in or
arising on the cross‑claim be tried in such manner as the Court may direct;
(c) give to a respondent to the cross‑claim
leave to defend the claim on the originating process or any other cross‑claim
in the proceeding, either alone or in addition to any other party;
(d) give to a respondent to the cross‑claim leave
to appear at the trial or hearing of the claim on the originating process or on
any other cross‑claim in the proceeding and to take such part in the trial or
hearing as the Court thinks fit;
(e) dismiss the cross‑claim;
(f) determine the extent to which the cross‑claimant
and a respondent to the cross‑claim shall be bound as between themselves by a
judgment (including a judgment by consent or by default) or decision (including
a decision by consent) on the claim on the originating process or any other
cross‑claim in the proceeding;
(g) pronounce such judgment as the nature of the
case may require;
(h) give such directions as the Court thinks fit
for having the rights and liabilities of the parties determined and enforced,
including any order or direction which may be made or given under this Order.
(3) Order 10, rules 4 to 6 (directions hearing) apply to
a motion for directions under this rule.
15 Separate
prosecution
A cross‑claim may proceed notwithstanding that
judgment has been pronounced and an order made and entered on the originating
process or any other cross‑claim in the proceeding, or that the proceeding on
the originating process or any other cross‑claim is stayed, dismissed or
discontinued.
16 Contribution
or indemnity
Where a respondent makes a cross‑claim for
contribution or indemnity in respect of a claim against him in the proceeding:
(a) an order on a judgment for the claimant on
the cross‑claim shall not be entered except by direction of the Court;
(b) judgment for the claimant on the cross‑claim
shall not, unless the Court otherwise orders, be enforced by execution until
satisfaction of any judgment in the proceeding against the cross‑claimant.
17 Offer
of contribution
Where in any proceeding:
(a) a party (in this rule called the first
party) stands to be held liable to another party (in this rule called the
second party) to contribute towards any debt or damages which may be recovered
against the second party in the proceeding; and
(b) the first party, at any time after he has
entered an appearance, makes an offer to the second party to contribute to a
specific extent to the debt or damages;
then, if the first party makes the offer without prejudice to his
defence, the offer shall not be brought to the attention of the Court until all
questions of liability or amount of debt or damages have been decided.
Order 6 Parties, causes of action and interveners
1 Multiple
claims
Subject to rule 6 an applicant, whether claiming in
the same or different capacities, may, in any proceeding, claim relief in
respect of more than one cause of action.
2 Joinder
of parties generally
Two or more persons may be joined as applicants or
respondents in any proceeding:
(a) where:
(i) if a separate proceeding were
brought by or against each of them, as the case may be, some common question of
law or of fact would arise in all the proceedings; and
(ii) all rights to relief claimed in
the proceeding (whether they are joint, several or alternative) are in respect
of or arise out of the same transaction or series of transactions; or
(b) where the Court gives leave so to do.
3 Joint
right
(1) Where, in any proceeding, the applicant claims
relief to which any other person is entitled jointly with him:
(a) all persons so entitled shall be parties to
the proceeding; and
(b) any of them who does not consent to being
joined as an applicant shall be made a respondent.
(2) Subrule (1) applies subject to any Act and subject
to section 62 of the Bankruptcy Act 1966 and applies unless the Court
gives leave to the contrary.
4 Leave
under rule 2 and subrule 3 (2)
(1) The Court may grant leave under rule 2 before or
after the joinder and may grant leave under subrule 3 (2) before or after the
non‑joinder.
(2) An applicant may apply for leave under rule 2 or
subrule 3 (2) either before or after the filing of his originating process and
may apply without serving notice of the motion on any person on whom the
application has not been served.
5 Common
liability
(1) Where, in any proceeding, relief is claimed against
a respondent who is jointly liable with some other person and also severally
liable, that other person need not be made a respondent to the proceeding.
(2) Where persons may be jointly, but not severally,
liable and relief is claimed against some but not all of those persons in a
proceeding, the Court may stay the proceeding until the other persons so liable
are added as respondents.
6 Inconvenient
joinder
Where any joinder of parties or of causes of action
may complicate or delay trial of the proceeding or is otherwise inconvenient,
the Court may order separate trials or make such other order as the Court
thinks fit.
7 Misjoinder
and non‑joinder of parties
(1) A proceeding shall not be defeated by reason of the
misjoinder of a party or the non‑joinder of any person as a party.
(2) The Court may in any proceeding determine the issues
or questions in dispute so far as they affect the rights and interests of the
parties.
8 Addition
of parties
(1) Where a person who is not a party:
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is
necessary to ensure that all matters in dispute in the proceeding may be
effectually and completely determined and adjudicated upon;
the Court may order that the person be added as a party and make
orders for the further conduct of the proceeding.
(2) A person shall not be added as an applicant without the
person’s consent.
9 Removal
of parties
If a person:
(a) has been improperly or unnecessarily joined
as a party to a proceeding; or
(b) has ceased to be a proper or necessary party
to a proceeding;
the Court may order that the person cease to be a party and make
orders for the further conduct of the proceeding.
10 Death,
transmission etc
(1) Where a party dies or becomes bankrupt but a cause
of action in the proceeding survives, the proceeding shall not abate by reason
of the death or bankruptcy.
(2) Where the interest or liability of a party passes by
assignment, transmission, devolution or otherwise to another person, the Court
may make orders for the addition, removal or re‑arrangement of parties and may
make orders for the further conduct of the proceeding.
11 Further
conduct of proceedings
(1) Without limiting the generality of the powers of the
Court under rules 8, 9 and 10, orders under those rules for the further conduct
of the proceeding may include orders relating to:
(a) service of the order and other documents in
the proceeding;
(b) amendment;
(c) appearance of added parties; and
(d) substitution of one party for another party
or former party.
(2) Where the Court orders that a party be substituted
for another party or a former party, all things done in the proceeding before
the making of the order shall, unless the Court otherwise orders, have effect
in relation to the new party as those things had effect in relation to the old,
but entry of appearance by the old party shall not dispense with entry of
appearance by the new.
(3) Subject to subrule (2), where a party is added
pursuant to an order under rule 8 or rule 10, the date of commencement of the
proceeding so far as concerns him shall be the date of filing of the
originating process amended so as to add him as a party or, where an amended
originating process is not filed, the date of the amendment adding him as a
party.
12 Failure
to proceed after death of party
(1) Where:
(a) a party dies but a cause of action in the
proceeding survives the party’s death; and
(b) an order under rule 10 for the addition of a
party in substitution for the deceased party is not made within three months
after the death;
the Court may order that, unless, within a specified time after
service of the order in accordance with subrule (2), a party is added in
substitution for the deceased party, the proceedings be dismissed so far as
concerns relief on the cause of action for or against the person to whom the
cause of action or the liability thereon, as the case may be, survives on the
death.
(2) On making an order under subrule (1), the Court
shall give such directions as it thinks fit for service of the order on the
persons (whether parties or not) interested in continuing the proceeding.
13 Representation:
concurrent interests
(1) Where numerous persons have the same interest in any
proceeding the proceeding may be commenced, and, unless the Court otherwise
orders, continued, by or against any one or more of them as representing all or
as representing all except one or more of them.
(2) At any stage of a proceeding pursuant to this rule
the Court may appoint any one or more of the respondents or other persons (as
representing whom the respondents are sued) to represent all, or all except one
or more, of those persons in the proceeding.
(3) Where, under subrule (2), the Court appoints a
person who is not a respondent, the Court shall make an order under rule 8
adding him as a respondent.
(4) A judgment pronounced or an order made in a
proceeding pursuant to this rule shall be binding on all the persons as
representing whom the applicants sue or, as the case may be, the respondents
are sued but shall not be enforced against any person not a party to the
proceeding except with the leave of the Court.
(5) An application for leave under subrule (4) shall be
made by motion, notice of which shall be served personally on the person
against whom it is sought to enforce the judgment or order.
(6) Notwithstanding that a judgment or order to which an
application under subrule (5) relates is binding on the person against whom the
application is made, that person may dispute liability to have the judgment or
order enforced against him on the ground that by reason of facts and matters
particular to his case he is entitled to be exempted from the liability.
(7) This rule does not apply to a proceeding concerning
property subject to a trust or included in a deceased estate.
14 Representation
of beneficiaries by trustees
(1) A proceeding concerning property subject to a trust
or included in a deceased estate may be brought by or against the trustees or
personal representatives without joining a person having a beneficial interest
in the trust or estate and unless the Court otherwise orders on the ground that
the trustees or personal representatives could not or did not represent the
interest of that person, an order granted or made in the proceedings is binding
on that person.
(2) Subrule (1) does not limit the power of the Court to
order a person having an interest to be made a party.
15 Deceased
person
(1) Where in any proceeding it appears to the Court that
a deceased person was interested, or that the estate of a deceased person is
interested, in any matter in question in the proceeding and that the deceased
person has no personal representative, the Court may:
(a) order that the proceeding continue in the
absence of a person representing the estate of the deceased person; or
(b) by order (with the consent of the person
appointed) appoint a person to represent that estate for the purposes of the
proceeding.
(2) An order under subrule (1), and any judgment or
order subsequently pronounced or made in the proceeding, shall bind the estate
of the deceased person to the same extent as the estate would have been bound had
a personal representative of the deceased person been a party to the
proceeding.
(3) Before making an
order under this rule, the Court may require notice of the application for the
order to be given to such (if any) of the persons having an interest in the
estate as it thinks fit.
16 Conduct
The Court may give the conduct of the whole or any
part of any proceeding to such person as it thinks fit.
17 Interveners
(1) The Court, at any stage of a proceeding, may give
leave to a person (the intervener) to intervene in the
proceeding, on the terms and conditions, and with the rights, privileges and
liabilities (including liabilities for costs), determined by the Court.
(2) In deciding whether to give leave, the Court must
have regard to:
(a) whether the intervener’s contribution will
be useful and different from the contribution of the parties to the proceeding;
and
(b) whether the intervention might unreasonably
interfere with the ability of the parties to conduct the proceeding as they
wish; and
(c) any other matter that the Court considers
relevant.
(3) The role of the intervener is solely to assist the
Court in its task of resolving the issues raised by the parties.
(4) For subrule (3), assisting the Court includes
suggesting witnesses to be called by the Court, but does not include filing
pleadings, leading evidence or examining witnesses.
(5) When giving leave, the Court must specify the
form of assistance to be given by the intervener and the manner of
participation of the intervener, and, in particular, must specify:
(a) the matters
that the intervener may raise; and
(b) whether the intervener’s submissions are to
be oral, in writing, or both.
Order 7 Service
1 Originating
process
(1) Subject to the provisions of this Order, originating
process shall be served personally on each respondent.
(2) The copy for service shall be signed and sealed as
mentioned in Order 4, rule 7.
(3) If a respondent to an originating process:
(a) enters an appearance; or
(b) files a defence; or
(c) appears before the Court in response to the
process;
the originating process is taken to have been served on the
respondent personally when the earliest of those events occurred, unless
personal service on an earlier day is established.
2 Personal
service: how effected
(1) Personal service of a document is effected on:
(a) an individual — by leaving a copy of
the document with him;
(b) a corporation — by leaving a copy of the
document with some person apparently an officer of or in the service of the
corporation and apparently of or above the age of sixteen years:
(i) at the registered office of the
corporation; or
(ii) if there is no registered office,
at the principal place of business or the principal office of the corporation;
and
(c) an unincorporated association — by
leaving a copy of the document at the principal place of business or the
principal office of the association with some person apparently an officer of
or in the service of the association and apparently of or above the age of
sixteen years; and
(d) an organisation — by leaving a copy of
the document with some person apparently an officer of or in the service of the
organisation and apparently of or above the age of 16 years at the office of
the organisation shown in the copy records of the organisation lodged in the
Industrial Registry pursuant to section 233 of Schedule 1B to the Workplace
Relations Act 1996;
or as the Court or a Judge may direct.
(2) If a person refuses to accept service of a document,
personal service may be effected on him by putting the document down in his
presence and telling him the nature of it.
(3) It shall not be necessary in order to effect
personal service that the original document be shown.
(4) Despite subrule 2 (1), for the purposes of the
Corporations Rules, personal service may be effected:
(a) on a company, as defined in section 9 of the
Corporations Act 2001 (the Corporations Act), in any way
permitted by section 109X of the Corporations Act; and
(b) on a liquidator of a company, in the way
described in paragraph 109X (1) (c) of the Corporations Act; and
(c) on an administrator of a company, in the way
described in paragraph 109X (1) (d) of the Corporations Act.
3 Mode
of service
A document which is not an originating process and
which is required or permitted to be served in any proceeding may be served
personally, but unless personal service is expressly required, it need not be
served personally.
4 Ordinary
service: how effected
(1) Where personal service of a document is not
required, the document may be served:
(a) by leaving a copy of the document at the
proper address of the person to be served between the hours of nine in the
morning and five in the afternoon on any day on which the Registry in that
State or Territory is open; or
(b) by sending a copy of the document by pre‑paid
post addressed to the person to be served at his or her proper address; or
(c) where any enactment of the Commonwealth or
of the State or Territory in which service is to be effected provides for
service of a document on a corporation or organisation by serving the document
in accordance with such provision; or
(d) if a person to be served has filed a notice
for service at an exchange box of a solicitor under
paragraph 7 (1) (a) of this Order — by leaving a copy of the
document, addressed to that solicitor, in that exchange box; or
(e) if a person to be served has filed a notice
for service by facsimile transmission under paragraph 7 (1) (b)
of this Order — by sending the document to the facsimile number specified
in the notice; or
(f) if a person to be served has filed a notice
for service by electronic communication under paragraph 7 (1) (c) of
this Order — by sending the document to the email address specified in the
notice.
(2) For the purposes of subrule (1), the proper address
of a person shall be the address for service of that person in the proceeding
but if, at the time when the copy is left or posted pursuant to subrule (1),
the person has no address for service in the proceeding, the person’s usual or
last known place of business or of abode shall be the person’s proper address.
(3) The time of service of any document for the purpose
of any proceeding shall, where the copy of the document:
(a) is sent by pre‑paid post in accordance with
paragraph (1) (b) — be seven days after the copy is so sent; or
(b) is left in an exchange box in accordance with
paragraph (1) (d) — be two days after the copy is so left; or
(c) is sent by
facsimile transmission in accordance with paragraph (1) (e) — be one day
after the copy is transmitted excluding Saturdays, Sundays and public holidays;
or
(d) is sent by electronic communication in
accordance with paragraph (1) (f) — be one day after the copy is sent.
(4) For paragraphs (3) (b), (c) and (d), mention of
a day or days does not include a Saturday, Sunday or a public holiday.
4A Service
on principal solicitor
(1) Where personal service of a document is not required
and the person to be served has a solicitor acting for him or her which
solicitor has another solicitor as agent whose address is that person’s proper
address the document may be served:
(a) by leaving a copy of the document at the
address of the first‑named solicitor; or
(b) by sending a copy of the document by pre‑paid
post addressed to the person to be served at the address of the first‑named
solicitor; or
(c) where an appropriate notice has been given
under rule 7 of this Order by leaving a copy of the document addressed to the
first‑named solicitor at the exchange box of that solicitor; or
(d) by sending a copy of the document by
facsimile transmission directed to the facsimile number operated at the
premises of, or in connection with, the first‑named solicitor; or
(e) by sending a copy of the document by
electronic communication directed to the email address of the first‑named
solicitor.
(2) The time of service of any document for the purpose
of any proceedings shall, where the copy of the document:
(a) is sent by pre‑paid post in accordance with
paragraph (1) (b) — be 7 days after the copy is so sent; or
(b) is left in an exchange box in accordance with
paragraph (1) (c) — be 2 days after the copy is so left; or
(c) is sent by facsimile transmission in
accordance with paragraph (1) (d) — be one day after the copy is sent; or
(d) is sent by electronic communication in
accordance with paragraph (1) (c) — be one day after the copy is sent.
(3) For paragraphs (2) (b), (c) and (d),
mention of a day or days does not include a Saturday, Sunday or a public
holiday.
5 Identity
For the purposes of the proof of service, evidence
of a statement by a person of his identity or that he holds some office is
evidence of his identity or that he holds that office, as the case may be.
6 Address
for service
(1) Unless the Court or a Judge otherwise orders, an
address for service for a person must be the address of a place within
Australia at which documents in the proceeding may, during ordinary business
hours, be left for the person and to which documents in the proceeding may be
posted to the person.
(2) If a person is represented by a solicitor, the
address for service for the person must be the address of the solicitor or of
the solicitor’s agent.
(3) A person may change his address for service by
filing a notice of the change showing his new address for service.
(4) A person who files a notice of a change of his
address for service shall, on the date of filing, serve the notice on each
party to the proceedings.
7 Document
exchange, facsimile number or email address — Form 12
(1) A person may, by
filing a notice in accordance with Form 12, or by adding a notice to that
effect to the person’s originating process (other than a cross‑claim) or notice
of appearance, authorise that documents in the proceeding may be served on the
person:
(a) if the person’s address for service is the
office of a solicitor who uses the facilities of a document exchange — at
the solicitor’s document exchange box specified in the notice; or
(b) by sending the documents to the facsimile
number specified in the notice; or
(c) by sending the documents by electronic
communication to the email address specified in the notice.
(2) A person may:
(a) change the particulars stated in the notice
by filing a further notice showing the new particulars; or
(b) cancel the notice by filing a further notice
to that effect.
(3) A person who files a notice under subrule (1) (other
than a notice added to an originating process or a notice of appearance), a
notice of change or notice of cancellation must, on the date of filing, serve
the notice on each party to the proceeding.
(4) A change or cancellation of which notice is required
to be served under this rule shall not be effective as between the person to be
served and another party until the notice is filed and served on that other
party.
8 Acceptance
by solicitor
(1) This rule applies to:
(a) any originating process; and
(b) any document required or permitted to be
served in any proceeding, but not required to be served personally.
(2) Where a solicitor makes on a copy of a document to
which this rule applies a note that he accepts service of the document on
behalf of any person, the document shall, unless he is shown not to have had
authority to act for such person, be taken to have been duly served on that
person on the date on which the solicitor makes the note or on such earlier
date of service as may be proved.
9 Substituted
service
(1) Where for any reason it is impractical to serve a
document in the manner set out in the Rules, the Court may by motion in an
existing proceeding made ex parte order that, instead of service, such
steps be taken as are specified in the order for the purpose of bringing the
document to the notice of the person to be served.
(2) Where the Court makes an order under subrule (1),
the Court may order that the document be taken to have been served on the
happening of any specified event, or on the expiry of any specified time.
10 Informal
service: confirmation
Where for any reason it is impractical to serve a
document in the manner set out in the Rules, but steps have been taken to bring
the document to the notice of the person to be served, the Court may order that
the document be taken to have been served on that person on a date specified in
the order.
11 Service
by filing
(1) Unless the Court otherwise orders, the filing of a
document has effect as service of the document on a person, if personal service
is not required and:
(a) the person to be served:
(i) is in default of appearance; or
(ii) has entered an appearance but has
no address for service in the proceeding; or
(b) there is proof of non‑delivery of the
document, being a document sent by the Court to the person’s proper address.
(2) For paragraph (1) (b), the proper address of a
person is:
(a) the address for service of the person in the
proceeding; or
(b) if, when the document is left or posted the
person has no address for service in the proceeding, the person’s last known
place of business or of abode.
12 Notice
etc by the Court
Where, under the Rules or under an order, any
notice or other document is to be given to or served on any party by the Court
or any officer of the Court, the notice or document shall, unless the Rules
otherwise provide or the Court otherwise orders, be sufficiently given or
served in any manner in which a document not requiring personal service may be
served under this Order.
13 Injunction:
service
Where the Court grants an interlocutory injunction,
the party may serve notice of the injunction, if desired, by telegram or letter
signed by or on behalf of the Registrar.
14 Service
under contract
Where a respondent in any proceeding has, before or
after the commencement of the proceeding, agreed that originating process or
any other document in the proceeding may be served on the respondent or on some
other person on behalf of the respondent in a manner or at a place (whether in
or outside the Commonwealth) specified in the agreement, service in accordance
with the agreement shall be sufficient service on the respondent.
Order 8 Service outside Australia
Division 1 General
1 Definitions
for Order 8
In this Order, unless the contrary intention
appears:
Attorney‑General’s Department means the
Commonwealth Attorney‑General’s Department.
convention, in relation to a foreign country,
means a convention, agreement, arrangement or treaty about service
abroad of judicial documents to which the Crown in right of the Commonwealth
or, where appropriate, in right of a State, and a foreign country are parties.
foreign country means a country other than
Australia.
originating process means an application
commencing a proceeding, and includes a cross‑claim in the proceeding against a
person who was not previously a party to the proceeding.
2 When
originating process may be served outside Australia
Subject to rule 3, an originating process may be
served on a person in a foreign country in a proceeding which consists of, or
includes, any 1 or more of the kinds of proceeding mentioned in the following
table:
|
Item
|
Kind of proceeding in which originating process may be
served on a person outside Australia
|
|
1
|
Proceeding based on a cause of action arising in Australia
|
|
2
|
Proceeding based on a breach of a contract in Australia
|
|
3
|
Proceeding in relation to a contract that:
(a) is made in Australia; or
(b) is made on behalf of the person to be served by or
through an agent who carries on business, or is resident, in Australia; or
(c) is governed by the law of the Commonwealth or of a
State or Territory;
in which the applicant seeks:
(d) an order for the enforcement, rescission, dissolution,
rectification or annulment of the contract; or
(e) an order otherwise affecting the contract; or
(f) an order for damages or other relief in relation to
a breach of the contract
|
|
4
|
Proceeding based on a tort committed in Australia
|
|
5
|
Proceeding based on, or seeking the recovery of, damage
suffered wholly or partly in Australia caused by a tortious act or omission
(wherever occurring)
|
|
6
|
Proceeding seeking the construction, rectification,
setting aside or enforcement of:
(a) a deed, will or other instrument; or
(b) a contract, obligation or liability;
affecting property in Australia
|
|
7
|
Proceeding seeking the execution of a trust governed by a
law of the Commonwealth, or of a State or Territory, or any associated relief
|
|
8
|
Proceeding that affects the person to be served in
relation to the person’s membership of a corporation that carries on business
in Australia or is registered in a State or Territory as a foreign company
|
|
9
|
Proceeding in relation to an arbitration carried out in
Australia
|
|
10
|
Proceeding in which the Court has jurisdiction, seeking
relief in relation to the guardianship, protection, or care, welfare and
development of a person under 18 years (whether or not the person is in
Australia)
|
|
11
|
Proceeding based on a breach of a provision of an Act that
is committed in Australia
|
|
12
|
Proceeding based on a breach of a provision of an Act
(wherever occurring) seeking relief in relation to damage suffered wholly or
partly in Australia
|
|
13
|
Proceeding in relation to the construction, effect or
enforcement of an Act, regulations or any other instrument having, or
purporting to have, effect under an Act
|
|
14
|
Proceeding in relation to the effect or enforcement of an
executive, ministerial or administrative act done, or purporting to be done,
under an Act, regulations or any other instrument having, or purporting to
have, effect under an Act
|
|
15
|
Proceeding seeking contribution or indemnity in relation
to a liability enforceable by a proceeding in the Court
|
|
16
|
Proceeding in which:
(a) the person to be served is domiciled or ordinarily
resident in Australia; or
(b) if the person is a corporation, the corporation is
incorporated in Australia, carries on business in Australia or is registered
in a State or Territory as a foreign company
|
|
17
|
Proceeding in which the person to be served has submitted
to the jurisdiction of the Court
|
|
18
|
Proceeding properly brought against a person who is
served, or is to be served, in Australia, if the person to be served has been
properly joined as a party
|
|
19
|
Proceeding in which the subject matter, so far as it
concerns the person to be served, is property in Australia
|
|
20
|
Proceeding seeking the perpetuation of testimony in
relation to property in Australia
|
|
21
|
Proceeding seeking an injunction ordering a person to do,
or to refrain from doing, anything in Australia (whether or not damages are
also sought)
|
|
22
|
Proceeding affecting the person to be served in relation
to:
(a) the person’s membership of, or office in, a
corporation incorporated, or carrying on business, in Australia; or
(b) the person’s membership of, or office in, an
association or organisation formed, or carrying on business, in Australia; or
(c) the person’s conduct as a member or officer of such
a corporation, association or organisation
|
3 Application
for leave to serve originating process outside Australia
(1) Service of an originating process on a person in a
foreign country is effective for the purpose of a proceeding only if:
(a) the Court has given leave under subrule (2)
before the application is served; or
(b) the Court confirms the service under subrule
(5); or
(c) the person served waives any objection to
the service by entering an appearance in the proceeding.
(2) The Court may give leave to a party to serve an
originating process on a person in a foreign country in accordance with a
convention or the law of the foreign country, on such terms and conditions as
it considers appropriate, if the Court is satisfied that:
(a) the Court has jurisdiction in the
proceeding; and
(b) the proceeding is of a kind mentioned in
rule 2; and
(c) the person seeking leave has a prima facie
case for the relief claimed by the person in the proceeding.
Note The law of a foreign country may
permit service through the diplomatic channel or service by a private agent.
(3) The evidence on an application for leave under
subrule (2) must include the following:
(a) the name of the foreign country where the
person to be served is or is likely to be;
(b) the proposed method of service;
(c) a statement that the proposed method of
service is permitted by:
(i) if a convention applies — the convention; or
(ii) in any other case — the law
of the foreign country.
(4) Nothing in this rule prevents the Court from giving
leave to a person to give notice, in a foreign country, of a proceeding in the
Court on the basis that giving the notice takes the place of serving the
originating process in the proceeding.
(5) If an originating process was served on a person in
a foreign country without the leave of the Court, the Court may, by order,
confirm the service if the Court is satisfied that:
(a) paragraphs (2) (a), (b) and (c) apply
to the proceeding; and
(b) the service was permitted by:
(i) if a convention applies — the
convention; or
(ii) in any other case — the law
of the foreign country; and
(c) the failure to apply for leave is
sufficiently explained.
4 Service
of other documents
(1) The Court may give leave to a party to serve a
document issued by the Court (other than an originating process) on a person in
a foreign country in accordance with a convention or the law of the foreign
country, on such terms and conditions as it considers appropriate.
Note The law of a foreign country may
permit service through the diplomatic channel or service by a private agent.
(2) The evidence on an application for leave under
subrule (1) must include the information mentioned in paragraphs
3 (3) (a) to (c).
(3) If a document (other than an originating process)
was served on a person in a foreign country without the leave of the Court, the
Court may confirm the service if the Court is satisfied that:
(a) the service was permitted by:
(i) if a convention applies — the
convention; or
(ii) in any other case — the law
of the foreign country; and
(b) the failure to apply for leave is sufficiently
explained.
5 Application
of other rules
The other Orders of these Rules apply to service
of a document on a person in a foreign country in the same way as they apply to
service on a person in Australia, so far as they are:
(a) relevant and not inconsistent with this
Order; and
(b) not inconsistent with:
(i) if a convention applies — the
convention; or
(ii) in any other case — the law
of the foreign country.
6 Method
of service
A document that is to be served on a person in a
foreign country need not be served personally on the person if it is served on
the person in accordance with the law of the foreign country.
7 Substituted
service
(1) This rule applies if an official certificate or
declaration (whether made on oath or otherwise) is sent to the Court by the
government or a court of a foreign country stating that attempts to serve a
document on a person in the foreign country, in accordance with a convention or
through the diplomatic channel, have not been successful.
(2) On application by the person seeking service, the
Court may order such steps be taken, as are specified in an order, for the
purpose of bringing the document to the notice of the person to be served.
(3) If the Court makes an order under subrule (2), the
Court may order that a document is taken to have been served when a specified
event happens or on the expiry of a specified time.
8 Proof
of service
(1) An official certificate or declaration (whether made
on oath or otherwise) stating that a document has been personally served on a
person in a foreign country, or served on the person in another way in
accordance with the law of the foreign country, is sufficient proof of the
service of the document.
(2) If filed, the certificate or declaration:
(a) is taken to be a record of the service of
the document; and
(b) has effect as if it were an affidavit of
service.
Division 2 Service through the diplomatic channel or by transmission to
a foreign government
9 Documents
to be lodged with the Court
(1) This rule applies if a person has been given leave
to serve a document on a person in a foreign country:
(a) through the diplomatic channel; or
(b) by transmission to a foreign government in
accordance with a convention (the relevant convention).
(2) The person given leave must lodge in the District
Registry:
(a) a request for service in accordance with
Form 14A; and
(b) a request for transmission in accordance with
Form 14B; and
(c) a written undertaking by the person, or the
person’s legal practitioner, to pay to the Registrar the amount of the expenses
incurred by the Court in giving effect to the person’s request; and
(d) 2 copies (or such other number of copies as
may be required by the relevant convention) of each document to be served; and
(e) if necessary, a translation into an
official language of the foreign country (including a statement by the
translator attesting to the accuracy of the translation) of the following:
(i) the request for transmission
mentioned in paragraph (b);
(ii) each document to be served.
10 Order
for payment of expenses
(1) This rule applies if:
(a) a person files an undertaking under
paragraph 9 (2) (c) in relation to a request for service on a person
in a foreign country in accordance with a convention or through the diplomatic
channel; and
(b) the person does not, within 14 days after
being sent an account for expenses incurred in relation to the request, pay to
the Registrar the amount of the expenses.
(2) On application by the Registrar, the Court may:
(a) order the person to pay the amount of the
expenses to the Registrar; and
(b) stay the proceeding, so far as it concerns
the whole or any part of a claim for relief by the person, until the amount of
the expenses is paid.
Order 9 Appearance
1 Appearance
by solicitor or in person
(1) A respondent may enter an appearance and may defend
a proceeding by a solicitor or in person.
(2) Where a respondent is a person under disability
subrule (1) has effect subject to Order 43.
(3) Notwithstanding subrule (1) and subject to any Act,
a corporation may not without the leave of the Court or a Judge enter an
appearance or defend any proceeding except by a solicitor.
(4) For the purposes of this Order respondent
includes a person who is required to enter an appearance but is not named as a
respondent.
2 Time
for appearance
(1) Subject to these Rules a respondent shall enter an
appearance before the date appointed for a directions hearing and before filing
any document.
(2) Notwithstanding subrule (1) a respondent who has not
entered an appearance by the date appointed for a directions hearing, may enter
an appearance after that date without leave.
3 Mode
of entry
(1) An appearance shall be entered by filing a notice of
appearance in accordance with Form 15.
(2) Two or more persons entering an appearance by the
same solicitor on the same date may do so by a single notice of appearance.
(3) The date of entry of an appearance shall be the date
when notice of the appearance is received in the Registry.
(4) On the filing of the
notice of appearance, the Registrar must:
(a) affix the stamp of the Court to the notice
and to any copies of the notice; and
(b) write the date when the stamp has been
affixed on the notice and on any other copies; and
(c) return the documents to the person entering
the appearance.
4 Notice
of appearance
(1) A notice of appearance shall show:
(a) the name and address of the person entering
the appearance;
(b) where the person entering the appearance
appears by a solicitor, the name, address and telephone number of the
solicitor;
(c) where the person entering the appearance
appears by a solicitor and that solicitor has another solicitor as agent for
him in the proceeding, the name, address and telephone number of the agent; and
(d) an address for service in accordance with
rule 6 of Order 7.
(2) Where an address shown in a notice of appearance by
which a respondent enters an appearance is not genuine, the applicant may, with
the leave of the Court, continue the proceeding as if the appearance had not
been entered.
5 Service
of appearance
A respondent shall, upon receiving the copies of
the notice of appearance stamped with the stamp of the Registry, forthwith
serve on the applicant at his place for service one of the copies so received.
6 Conditional
appearance
(1) A respondent may enter a conditional appearance.
(2) A conditional appearance shall have effect for all
purposes as an unconditional appearance, unless the Court otherwise orders or
the respondent applies under and in accordance with rule 7 and the Court makes
an order under that rule.
7 Setting
aside originating process etc
(1) The Court may make an order:
(a) setting aside an originating process; or
(b) setting aside the service of an originating
process on the respondent; or
(c) declaring that an originating process has
not been duly served on the respondent; or
(d) discharging any order giving leave to serve
an originating process outside Australia or confirming service of an
originating process outside Australia.
(2) A respondent applying for an order under subrule (1)
must file and serve the notice of motion:
(a) before the respondent enters an appearance;
or
(b) within 14 days after the respondent enters a
conditional appearance.
Order 10 Directions hearing
Note Order
35A deals with the procedure on default.
1 Directions
hearing — general
(1) On a directions hearing the Court shall give such
directions with respect to the conduct of the proceeding as it thinks proper.
(1A) In any proceeding which is to be heard by a Full Court,
whether in the original or appellate jurisdiction, such directions as is
thought proper with respect to the conduct of the proceeding may be given by
the Court constituted by a single Judge.
(2) Without prejudice to the generality of subrule (1)
or (1A) the Court may:
(a) make orders with respect to:
(i) discovery and inspection of
documents;
(ii) interrogatories;
(iii) inspections of real or personal
property;
(iv) admissions of fact or of documents;
(v) the defining of the issues by
pleadings or otherwise;
(vi) the standing of affidavits as
pleadings;
(vii) the joinder of parties;
(viii) the mode and sufficiency of
service;
(ix) amendments;
(x) cross‑claims;
(xi) the filing of affidavits;
(xii) the giving of particulars;
(xiii) the place, time and mode of
hearing;
(xiv) the giving of evidence at the
hearing, including whether evidence of witnesses in chief shall be given orally
or by affidavit, or both;
(xv) the disclosure of reports of
experts;
(xvi) costs;
(xvii) the filing and exchange of signed
statements of evidence of intended witnesses and their use in evidence at the
hearing;
(xviii) the taking of evidence and receipt
of submissions
by video link, or audio link, or electronic communication, or such other means
as the Court considers appropriate;
(xix) the proportion in which the parties
are to bear
the costs (if any) of taking evidence or making submissions in accordance with
a direction under subparagraph (xviii); and
(xx) the use of assisted dispute
resolution (including mediation) to assist in the conduct and resolution of all
or part of the proceeding.
(aa) where, in any proceeding commenced in respect
of any alleged or threatened breach of a provision of Part IV of the Trade
Practices Act 1974, an order pursuant to section 80 of that Act is
sought, direct that notice be given of the order sought by public advertisement
or in such other form as the Court directs;
(b) notwithstanding that the application is
supported by a statement of claim, order that the proceeding continue on
affidavits;
(c) order that evidence of a particular fact or
facts be given at the hearing:
(i) by statement on oath upon
information and belief;
(ii) by production of documents or
entries in books;
(iii) by copies of documents or entries;
or
(iv) otherwise as the Court directs;
(ca) order that an agreed bundle of documents be
prepared by the parties;
(cab) direct that the parties give consideration to
jointly instructing an expert to provide to the parties a report of the
expert’s opinion in relation to a particular issue or issues in the proceeding,
on the basis that the parties concerned will be jointly responsible to pay the
expert’s fees and expenses;
(d) order that no more than a specified number of
expert witnesses may be called;
(da) order that the reports of experts be
exchanged;
(e) appoint a court expert in accordance with
Order 34, rule 2;
(f) direct that the proceeding be transferred to
a place at which there is a Registry other than the then proper place. Where
the proceeding is so transferred, the Registrar at the proper place from which
the proceeding is transferred shall transmit all documents in his charge
relating to the proceeding to the Registrar at the proper place to which the
proceeding is transferred;
(g) order, under Order 72, that proceedings, part
of proceedings or a matter arising out of proceedings be referred to a mediator
or arbitrator;
(h) order that the parties attend before a
Registrar for a conference with a view to satisfying the Registrar that all reasonable
steps to achieve a negotiated outcome of the proceedings have been taken, or
otherwise clarifying the real issues in dispute so that appropriate directions
may be made for the disposition of the matter, or otherwise to shorten the time
taken in preparation for and at the trial;
(i) in a case in which the Court considers it
appropriate, direct the parties to attend a case management conference with a
Judge or Registrar to consider the most economic and efficient means of
bringing the proceedings to trial and of conducting the trial, at which
conference the Judge or Registrar may give further directions;
(j) in proceedings in which a party seeks to
rely on the opinion of a person involving a subject in which the person has
specialist qualifications, direct that all or part of such opinion be received
by way of submission in such manner and form as the Court may think fit,
whether or not the opinion would be admissible as evidence.
(3) The Court may revoke or vary any order made under
(1), (1A) or (2).
(4) Paragraph (aa) of subrule (2) does not limit the
power of the Court to direct at any stage of the proceeding that such notice be
given.
2 Fixing
of date
(1) On the directions hearing the Court may:
(a) fix a date for a further directions hearing;
(b) fix a date for trial;
(c) direct the parties to arrange with the
Registrar a date for trial;
(d) fix a date after which either party may
request a date for trial; or
(e) stand the matter out of the list.
3 Determination
of proceeding
If the Court thinks fit and the parties agree, the
Court may hear and determine the proceeding on a directions hearing.
4 Motion for summary judgment,
stay or dismissal
(1) A party may, at the directions hearing, move for:
(a) an order under Order 20, rule 4 or 5; or
(b) judgment under Order 20, rule 2 or section
31A of the Act.
(2) The party must serve notice of the motion on each
other party to the proceeding at least 3 days before the directions hearing.
(3) The Court may dispense with service under subrule (2).
5 Interlocutory
orders
On a directions hearing, each party shall, so far
as is practicable, apply for any interlocutory order or directions which he may
require.
6 Motion
on notice
A party may move on notice for any interlocutory
order or directions not made at the directions hearing appointed in the
application.
9 Use
of recording device or communication device in place where hearing taking place
(1) In this rule:
communication device includes a mobile
telephone, audio link, video link and any other electronic communication
equipment.
recording device means a device that is
capable of being used to record images or sound (including a camera, tape
recorder, video recorder, mobile telephone and digital audio recorder).
(2) Except with the leave of the Court or a Judge, a
person must not use a communication device or recording device in a place where
a hearing is taking place.
(3) An application for leave under subrule (2) may be
made to the Court or a Judge at any time before the date of the hearing in
which the communication device or recording device is sought to be used.
(4) The Court or a Judge may:
(a) grant leave under subrule (2) subject to any
conditions that the Court or Judge considers appropriate; and
(b) either generally or in relation to a
particular part of a hearing:
(i) withdraw such leave; or
(ii) impose new conditions or vary or
remove any existing conditions to which such leave is subject.
(5) In considering whether to grant leave under subrule
(2) for the use of a communication device or recording device, the Court or a
Judge may have regard to any relevant matter including the following:
(a) whether the person seeking leave has a
reasonable need to use the device in relation to the hearing;
(b) if a direction has been given excluding one
or more witnesses from the Court, the risk that the device could be used for
the purpose of briefing a witness out of court;
(c) any possibility that use of the device would
disturb the hearing or distract or cause concern to a witness or other
participant in the hearing.
(6) This rule does not prevent:
(a) the making of, or the use of a recording
device for the purpose of making, an official transcript of a hearing; or
(b) the use of a communication device for the
purpose of allowing a person to appear before, or make a submission to, the
Court or a Judge.
(7) This rule does not limit the powers of the Court to
punish for contempt.
Order 10A Cross‑vesting
1 Interpretation
In this Order:
the Act means the Jurisdiction of Courts
(Cross‑vesting) Act 1987 of the Commonwealth.
cross‑vesting law means any law of the
Commonwealth or a State or Territory (including the Act) relating to the cross‑vesting
of jurisdiction.
special federal matter has the same meaning
as in the Act.
2 Application
of order
The other Orders of the Rules apply to proceedings
referred to in this Order in so far as they are not inconsistent with the Rules
contained in it.
3 Application
under the Act
(1) An application under the Act for transfer of
proceedings shall be made by motion.
(2) The heading of the notice of motion shall refer to
the Act.
4 Applications
for transfer of proceedings
(1) An application under the Act for the transfer of
proceedings shall be heard and determined by a Judge.
(2) If an application for the transfer of proceedings is
made by the Attorney‑General of the Commonwealth or of a State or Territory,
the Attorney‑General does not, by reason of the application, become a party to
the proceedings in respect of which the application is made.
5 Proceedings
in which jurisdiction under cross‑vesting laws is or may be invoked
(1) If a party to a proceeding proposes to invoke a
jurisdiction arising under a cross‑vesting law, or relies on a cross‑vesting
law in any other way:
(a) the statement of claim or the affidavit
accompanying the application or a subsequent pleading (in each instance
hereinafter called the pleading) shall include a statement of the
provision on which the party relies, of the claim in relation to which the
party relies on it and of the grounds on which the party relies on it; and
(b) the party shall seek directions as soon as
practicable on whether the proceeding should be transferred under the Act.
(2) If a pleading raises a question involving a special
federal matter, the pleading shall identify the special federal matter as such
and state the grounds on which it is a special federal matter.
6 Proceedings
transferred under cross‑vesting laws
(1) On the transfer of proceedings by the court under
the Act the Registrar shall send to the proper officer of the Court to which
the proceedings are transferred all documents filed and orders made in the
proceedings.
(2) On the transfer of proceedings to the court under a
cross‑vesting law the proper officer shall enter and number the documents
received in respect of those proceedings so that the proceedings are
distinguished by year of filing and number.
(3) On the transfer of proceedings to the court under a
cross‑vesting law the plaintiff or applicant (as the case may be) shall make an
application for directions as soon as practicable.
7 Conduct
of proceedings
(1) If the law of a State or Territory may be applied
under paragraph 11 (1) (b) of the Act in determining a right of action arising
under a written law of that State or Territory, the pleading must identify the
right of action and the written law under which it arises.
(2) If a party proposed to claim that the law of a State
or Territory should be applied under paragraph 11 (1) (b) of the Act or that
rules of evidence and procedure other than those of the Court should be applied
under paragraph 11 (1) (c) of the Act:
(a) the party must seek directions on that
matter before the proceedings are set down for trial;
(b) the Court may at any time give directions in
relation to such matter and may revoke or vary any direction given by it in
relation to any such matter.
Order 11 Pleadings
Division 1 General
1 Paragraphs —
Form 7
Where a pleading alleges or otherwise deals with
several matters:
(a) the pleading shall be divided into
paragraphs;
(b) each matter shall, so far as convenient, be
put in a separate paragraph; and
(c) the paragraphs shall be numbered
consecutively.
1A Pleading
to include name of person who prepared it
A pleading must:
(a) set out the name of the person who prepared
the pleading; and
(b) include a statement by the person that the
person prepared the pleading.
1B Pleading
prepared by legal practitioner
(1) If a pleading is prepared by a legal practitioner
representing a party, the pleading must, when filed, be accompanied by a
certificate in accordance with Form 15B signed by the legal practitioner.
(2) The certificate required by subrule (1) may be
incorporated in the pleading that is being certified.
2 Facts
not evidence
Subject to these Rules:
(a) a pleading of a party shall contain, and
contain only, a statement in a summary form of the material facts on which the
party relies, but not the evidence by which those facts are to be proved; and
(b) paragraph (a) has effect subject to this Order
and to Order 4 (which relates to commencement of proceedings) and to Order
12 (which relates to particulars).
3 Brevity
A pleading shall be as brief as the nature of the
case admits.
4 Documents
and spoken words
Where any document or spoken words are referred to
in a pleading, it is permissible to state the effect of the document or spoken
words without setting out the precise terms thereof.
5 Presumed
facts
A party need not plead a fact if:
(a) the fact is presumed by law to be true; or
(b) the burden of disproving the fact lies on the
other party;
except so far as may be necessary to meet a specific denial of that
fact by the other party in his pleading or failure to plead such fact is likely
to cause the other party to be taken by surprise.
6 Conditions
precedent
(1) It shall not in any pleading be necessary to make a
general allegation of fulfilment of a condition precedent to a right of action.
(2) Any party wishing to deny the fulfilment of any such
condition precedent shall plead such denial.
7 New
fact or matter
A party may plead a fact or matter that has
occurred or arisen since the commencement of the proceeding.
8 Departure
(1) A party shall not in any pleading make an allegation
of fact, or raise any ground or claim, inconsistent with a previous current
pleading of his.
(2) Subrule (1) does not affect the right of a party to
make allegations of fact, or raise grounds or claims, in the alternative.
9 Points
of law
A party may by his pleading raise any point of law.
10 Matters
for specific pleading
In a pleading subsequent to a statement of claim a
party shall plead specifically any matter of fact or point of law (for example,
performance, release, any relevant statute of limitation, fraud or any fact
showing illegality) that:
(a) the party alleges makes a claim or defence
of the opposite party not maintainable;
(b) if not specifically pleaded might take the
other party by surprise; or
(c) raises issues of fact not arising out of the
preceding pleading.
11 Tender
Where in any proceeding a defence of tender before
the commencement of the proceeding is pleaded, the respondent shall bring into
Court in accordance with Order 23 the amount alleged to have been tendered, and
the tender shall, unless the Court has dispensed with compliance with this
rule, not be available as a defence unless and until the amount has been
brought into Court.
12 Set‑off
Where a claim by a respondent to a sum of money
(whether of an ascertained amount or not) is relied on as a defence to the
whole or part of a claim made by an applicant, it may be included in the
defence and set off against the applicant’s claim, whether or not the
respondent also cross‑claims for that sum of money.
13 Admissions
and traverse
(1) Subject to subrule (3) and to Order 43, rule 7
(which deals with persons under disability), an allegation of fact made by a
party in his pleading is deemed to be admitted by the opposite party unless it
is traversed by that party in his pleading or a joinder of issue under rule 14
operates as a denial of it.
(2) A traverse may be made either by a specific denial
or by a statement of specific non‑admission.
(3) Subject to subrule (4), every allegation of fact
made in a statement of claim or counterclaim which the party on whom it is
served does not intend to admit must be specifically traversed by him in his
defence or defence to counterclaim, as the case may be; and a general denial of
such allegations, or a general statement on non‑admission of them is not a
sufficient traverse of them.
(4) Any allegation that a party has suffered damage and
any allegations as to the amount of damages is deemed to be traversed unless
specifically admitted.
14 Joinder
of issue
(1) If there is no reply to a defence, there shall be an
implied joinder of issue on that defence.
(2) Subject to subrule (3), a joinder of issue operates
as a denial of every allegation of fact made in the pleading on which there is
a joinder of issue.
(3) A party may admit or specifically plead to
allegations of fact made in the pleading on which there is a joinder of issue,
in which case the joinder shall operate as a denial of every other allegation
of fact.
15 Close
of pleadings
(1) The pleadings on a statement of claim shall, unless
the Court otherwise orders, be closed, as between any applicant and any
respondent, on the date of expiry of the last of the times fixed by or under
these Rules for filing a defence or reply or other pleading between those
parties.
(2) Subrule (1) shall have effect notwithstanding that,
on the date mentioned in that subrule, a request or order for particulars has
been made but has not been complied with.
16 Embarrassment
etc
Where a pleading:
(a) discloses no reasonable cause of action or
defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice,
embarrassment or delay in the proceeding; or
(c) is otherwise an abuse of the process of the
Court;
the Court may at any stage of the proceeding order that the whole
or any part of the pleading be struck out.
17 General
issue
A party shall not plead the general issue.
18 Denial
to be substantial answer
When a party in any pleading denies an allegation
of fact in the previous pleading of the opposite party, he must not do so
evasively or generally, but must answer the point of substance, in accordance
with rule 13 of this Order.
Division 2 Progress
of pleadings
Note Order 35A deals with the procedure on
default.
19 Times
for filing and service of pleadings
Where a proceeding commenced by application
supported by statement of claim continues on pleadings after the directions
hearing, or at the directions hearing it is ordered that the proceeding
continue on pleadings, the times for filing and serving pleadings shall, unless
the Court otherwise directs, be in accordance with rules 20 to 22 of this
Order.
20 Defence —
Form 16
(1) Where the application was accompanied by a statement
of claim, a defence in accordance with Form 16 must be filed within 7 days
after the directions hearing.
(2) Where at the directions hearing it is ordered that
the applicant file and serve a statement of claim or points of claim, the
defence or points of defence shall be filed and served within 14 days
after service of the statement of claim or the points of claim.
21 Defence
to cross‑claim
Where a cross‑claim is filed and served pursuant to
Order 5, a cross‑respondent shall file and serve a defence to the cross‑claim
within 21 days after service on him of the cross‑claim or within 7 days after
the directions hearing appointed in the application, whichever is the later.
22 Reply —
Forms 17 and 18
(1) Where a respondent serves a defence on an applicant
or a cross‑respondent serves a defence to cross‑claim on a cross‑claimant, and
a reply is needed for compliance with rule 10 of this Order, the applicant or
cross‑claimant as the case may be must file and serve the reply, in accordance
with Form 17, within 14 days after service on him of the defence or
defence to the cross‑claim.
(2) Where an applicant files both a reply and a defence
to a cross‑claim, both must be put in one document, in accordance with
Form 18.
Order 12 Particulars
1 General
(1) A party pleading shall state in the pleading or in a
document filed and served with it the necessary particulars of any claim,
defence or other matter pleaded by him.
(2) Rules 2 to 4 do not affect the generality of subrule
(1).
2 Fraud
etc
A party pleading shall give particulars of any
fraud, misrepresentation, breach of trust, wilful default or undue influence on
which he relies.
3 Conditions
of mind
(1) A party pleading any condition of mind shall give
particulars of the facts on which he relies.
(2) In subrule (1) condition of mind
includes any disorder or disability of mind, any malice and any fraudulent
intention, but does not include knowledge.
4 Damages
(1) Where a party pleading claims damages which include
moneys which he has paid or is liable to pay, he shall give particulars of
those moneys.
(2) Where a party pleading claims exemplary damages, he
shall give particulars of the facts and matters on which he relies to establish
that claim.
5 Order
for particulars
(1) The Court may order a party to file and serve on any
other party:
(a) particulars of any claim, defence or other
matter stated in his pleading, or in any affidavit ordered to stand as his
pleading;
(b) a statement of the nature of the case on
which he relies; or
(c) where he claims damages, particulars
relating to general or other damages.
(2) Without limiting the generality of subrule (1),
where a party alleges as a fact that a person had knowledge or notice of some
fact, matter or thing, the Court may order that party to file and serve on any
other party:
(a) where he alleges knowledge, particulars of
the facts on which he relies; and
(b) where he alleges notice, particulars of the
notice.
(3) The Court shall not make an order under this rule
before the filing of the defence unless, in the opinion of the Court, the order
is necessary or desirable to enable the respondent to plead or for some other
special reason.
Order 13 Amendment
1 Application
of Order
This Order does not apply to the amendment of a
judgment or order or draft thereof.
2 General
(1) Subject to the following provisions of this rule,
the Court may, at any stage of any proceeding, order that any document in the
proceeding be amended, or that any party have leave to amend any document in
the proceeding, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the
purpose of determining the real questions raised by or otherwise depending on
the proceeding, or of correcting any defect or error in any proceeding, or of
avoiding multiplicity of proceedings.
(3) Where an application to the Court for leave to make
the amendment mentioned in subrules (4), (5) or (6) or paragraph (7) (a) is
made after any relevant period of limitation current at the date of
commencement of the proceeding has expired, the Court may, nevertheless, grant
such leave in the circumstances mentioned in that subrule if it thinks it is
just to do so.
(4) Where there has been a mistake in the name or
identity of a party, an amendment to correct the name of the party may be made
notwithstanding that the effect of the amendment is to substitute another
person as a party.
(5) Where an order to correct a mistake in the name of a
party has the effect of substituting another person as a party, the proceeding
shall be taken to have commenced with respect to that person on the day the
proceeding commenced.
(6) An amendment to alter the capacity in which a party
sues may be made if the new capacity is one which that party had at the date of
the commencement of the proceeding or has since acquired.
(7) An amendment may be made even if the effect of the
amendment is to add a new claim for relief or foundation in law for a claim for
relief (whether by way of substitution for an existing claim for relief or
foundation in law or not) if the new claim for relief or foundation in law:
(a) arises out of the same facts or
substantially the same facts as those already pleaded to support an existing
claim for relief by the party applying for leave to make the amendment; or
(b) subject to subrule (9), arises, in whole or
in part, out of facts or matters that have occurred or arisen since the commencement
of the proceeding.
(8) Subject to subrule (9), an amendment of a pleading
may be made even if the amendment pleads a fact or matter that has occurred or
arisen since the commencement of the proceeding.
(9) Paragraph (7) (b) and subrule (8) do not permit an
amendment that would have an effect inconsistent with any statute that limits
the time within which an action or a proceeding of a particular kind may be
brought or instituted.
3 Amendment
of pleading without leave
(1) A party may, without leave, amend any pleading of
his once at any time before the pleadings are closed.
(2) A party may further amend any pleading of his before
the pleadings are closed and without the leave of the Court if he obtains the
consent of all other parties.
(3) Subject to subrule (4), an amendment may be made
even if:
(a) the effect of the amendment is to add a new
claim for relief or foundation in law for a claim for relief, whether by way of
substitution for an existing claim for relief or foundation in law or not; or
(b) the amendment pleads a fact or matter that
has occurred or arisen since the commencement of the proceeding.
(4) Subrule (3) does not permit an amendment that would
have an effect inconsistent with any statute that limits the time within which
an action or a proceeding of a particular kind may be brought or instituted.
3A Date
when amendment takes effect
Unless the Court otherwise orders, an amendment of
a document that is made under rule 2 or 3 takes effect:
(a) if the amendment is made under paragraph
2 (7) (b), subrule 2 (8) or subrule 3 (3) — on the date when the
amendment is made; and
(b) in any other case — on the date when the
document was first filed.
4 Consequential
amendment of defence or reply
(1) Where an applicant amends his statement of claim:
(a) if the respondent has filed his defence, he
may amend his defence; and
(b) the time for filing his defence or amended
defence, as the case may be, shall be either the time fixed by these Rules for
filing his defence or 14 days after service on him under rule 10 whichever
expires later.
(2) Where a respondent amends his defence:
(a) if the applicant has filed a reply, he may
amend his reply; and
(b) the time for filing his reply or amended
reply, as the case may be, shall be either the time fixed by these Rules for
filing his reply or 14 days after service on him under rule 10, whichever
expires later.
(3) The rights to amend under paragraph (1) (a) and
paragraph (2) (a) are in addition to the right to amend under rule 3.
(4) Where the following
is the order of events:
(a) a party (in this rule called the first
party) files a pleading (in this rule called the first pleading);
(b) an opposite party files a pleading (in this
rule called the second pleading) in answer (whether by way of defence, reply or
otherwise) to the first pleading;
(c) the first party amends the first pleading;
(d) the opposite party does not amend the second
pleading within the time allowed by this rule;
then:
(e) the second pleading shall have effect as a
pleading in answer to the amended first pleading; and
(f) Order 11, subrule 14 (1) shall not apply
but, if no further pleading between those parties is filed, there shall be, at
the close of pleadings, an implied joinder of issue on the second pleading.
5 Disallowance
of amendment
(1) If a party amends a pleading under subrule
3 (1), the Court may, subject to subrule (3), by order disallow the
amendment.
(2) If a party amends a pleading under subrule
3 (2) but without obtaining the consent of a party, the Court may, subject
to subrule (3), by order disallow the amendment.
(3) A person applying for an order under subrule (1) or
(2) must file and serve the notice of motion within 14 days after the date on
which the amended pleading was served on the person under rule 10 of this
Order.
(4) Where, on the hearing of an application under
subrule (1), the Court is satisfied that, if an application for leave to make
the amendment had been made under subrule 2 (1) on the date on which the
amendment was made under subrule 3 (1) or (2), the Court would not have given
leave to make the whole or some part of the amendment, the Court shall disallow
the amendment or that part, as the case may be.
6 Duration
of leave
Subject to Order 3, rule 3 (which relates to the
extension and abridgment of time), where the Court makes an order under this
Order giving a party leave to amend a document, then, if the party does not
amend the document in accordance with the order before the expiration of the
period specified for that purpose in the order or, if no period is so
specified, before the expiration of 14 days after the date on which the order
is made, the order shall cease to have effect.
7 Mode
of amendment — directions
(1) Where the Court orders, or gives leave for, the
making of an amendment, the Court may give such directions as it thinks fit
concerning the mode of amendment and consequential service of the amended
document or of notice of the amendment.
(2) Rules 8, 9 and 10 have effect subject to subrule
(1).
8 Mode
of amendment — simple amendment — Form 19
(1) Where the amendments authorized under this Order to
be made to a document are not so numerous or lengthy or otherwise of such
nature as to render the document difficult or inconvenient to read, the
amendments may be made by:
(a) filing a notice, in accordance with Form 19,
specifying the amendments and the matters mentioned in subrule (2); and
(b) where the document to be amended has been
filed, writing the alterations in the document.
(2) A filed document amended under this rule shall be
marked with a statement specifying the date of the amendment and also, if made
pursuant to an order, the date of the order or, if not made pursuant to an
order, a reference to the rule authorizing the amendment.
9 Mode
of amendment — fresh document
Subject to subrule 8 (1), amendments authorized
under this Order to a filed document shall be made by filing a fresh document,
amended as so authorized, and bearing a statement specifying the matters
mentioned in subrule 8 (2).
10 Service
after amendment
Where a document has been served and is afterwards
amended, the party making the amendment shall, on the day on which the
amendment is made, serve on the parties on whom the document was served:
(a) if the amendment is made under rule 8 —
the notice mentioned in subrule 8 (1); or
(b) if the amendment is made under rule 9 —
the fresh document.
Order 14 Affidavits
1 Time
for swearing
An affidavit for use in any proceeding may be sworn
before or after the commencement of the proceeding.
2 Form
of affidavit — Form 20
(1) An affidavit must be in accordance with Form 20 and
made in the first person.
(2) The body of an affidavit shall be divided into
paragraphs numbered consecutively, each paragraph being as far as possible
confined to a distinct portion of the subject.
(2A) Each page of an affidavit, including any annexure,
must be numbered legibly and distinctively, beginning on the first page of the
affidavit with the numeral ‘1’.
(2B) Each annexure to an affidavit must be identified
sequentially on the first page of each annexure by:
(a) a letter of the alphabet, beginning with the
letter ‘A’ for the first annexure; or
(b) the initials of the deponent followed by a
number, beginning with the number ‘1’ for the first annexure.
(2C) The full name of the deponent and the date on which
the affidavit was sworn must appear on the first visible page of an affidavit
(being the first page, cover page or front cover page, as the case may be).
(3) If the deponent of an affidavit is illiterate, the
person before whom the affidavit is sworn or affirmed must certify in or below
the jurat that the affidavit was read in his or her presence to the deponent.
(4) Subject to subrule (5), if the deponent of an
affidavit is blind, the person before whom the affidavit is sworn or affirmed
must certify in or below the jurat that the affidavit was read in his or her
presence to the deponent.
(5) Subrule (4) does not apply if the deponent:
(a) has read the affidavit using a computer with
a screen reader, text‑to‑speech software or a braille display; and
(b) includes in the affidavit a statement that:
(i) he or she is blind; and
(ii) he or she has read the affidavit;
and
(iii) specifies the means by which it
was read.
(6) If the deponent of an
affidavit is incapable of signing the affidavit because of a physical
disability, the person before whom the affidavit is sworn or affirmed must
certify in or below the jurat that the deponent signified that he or she swore
or affirmed the affidavit.
(7) An affidavit made by a deponent who is illiterate
may be used only if:
(a) the affidavit includes a certificate in
accordance with subrule (3); or
(b) the Court is satisfied that the affidavit was
read to the deponent.
(8) An affidavit made by a deponent who is blind may be
used only if:
(a) the affidavit includes a certificate in
accordance with subrule (4); or
(b) the affidavit includes a statement in
accordance with subrule (5); or
(c) the Court is satisfied that the affidavit
was read to the deponent.
(9) Each page of an affidavit must be signed by:
(a) the deponent of the affidavit, unless the
deponent is incapable of signing the affidavit because of a physical
disability; and
(b) the person before whom the affidavit is sworn
or affirmed.
3 Alteration
Where there is any interlineation, erasure or other
alteration in the jurat or body of an affidavit:
(a) the affidavit may nevertheless be filed,
unless the Court otherwise orders; but
(b) the affidavit may not be used without the
leave of the Court unless the person before whom the affidavit is sworn
initials the alteration and, in the case of an erasure, re‑writes in the margin
of the affidavit any words or figures written on the erasure and signs or
initials them.
4 Exhibits
and annexures
(1) Any original document to be used in conjunction with
an affidavit shall be exhibited and not annexed to the affidavit.
(2) Any exhibit to an affidavit must be identified by a
certificate entitled in the same manner as the affidavit and made by the person
before whom the affidavit is sworn.
(3) Copies of all documents exhibited or annexed to an
affidavit shall be served with the affidavit.
5 Irregularity
Unless the Court otherwise orders, an affidavit may
be filed despite any irregularity in form.
5A Certificate
of compliance — Form 20A
(1) If, according to the Court file for a proceeding, a
solicitor acts for a party in the proceeding, an affidavit that is presented or
sent to a registry for filing on behalf of the party must be accompanied by a
certificate (a compliance certificate) in accordance with Form
20A signed by the solicitor.
(2) A compliance certificate may be endorsed on the
affidavit on or immediately after the last page of the affidavit.
(3) An affidavit that is not accompanied by a compliance
certificate must not be accepted for filing without the leave of the Court or a
Registrar.
6 Use
of affidavit
An affidavit must not be used in a proceeding
without the leave of the Court if:
(a) it has not been filed; or
(b) it has been filed but is irregular in form;
or
(c) it has been accepted for filing under
subrule 5A (3).
7 Service
(1) A party intending to use an affidavit shall serve it
on each other interested party not later than a reasonable time before the
occasion for using it arises.
(2) The Court may give directions concerning the service
of affidavits.
8 Scandal
etc
Where there is scandalous or oppressive matter in
an affidavit, the Court may order that the affidavit be taken off the file.
9 Cross‑examination
(1) A party may require the attendance for cross‑examination
of a person making an affidavit.
(2) A requirement under subrule (1) shall be made to the
party filing or proposing to use the affidavit.
(3) Where the attendance of a person is required under
subrule (1) and he does not attend, his affidavit shall not be used without the
leave of the Court.
(4) Where a person making an affidavit is cross‑examined,
the party using the affidavit may re‑examine him.
Order 15 Discovery and inspection of documents
Division 1 Discovery
1 Notice
for discovery — Form 21
After a directions hearing under Order 10, any
party may, with the leave of the Court and within any period fixed by the Court
for this purpose, by notice for discovery, in accordance with Form 21, filed
and served on any other party, require any other party to give discovery of
documents.
2 Discovery
on notice
(1) A party required to give discovery must do so within
the time specified in the notice of discovery (not being less than 14 days
after service of the notice of discovery on the party), or within such time as
the Court or a Judge directs.
(2) Unless the Court or a Judge orders otherwise, a
party must give discovery by serving:
(a) a list of documents required to be
disclosed; and
(b) an affidavit verifying the list.
(3) Without limiting rule 3 or 7, the documents required
to be disclosed are any of the following documents of which the party giving
discovery is, after a reasonable search, aware at the time discovery is given:
(a) documents on which the party relies; and
(b) documents that adversely affect the party’s
own case; and
(c) documents that adversely affect another
party’s case; and
(d) documents that support another party’s case.
(4) However, a document is not required to be disclosed
if the party giving discovery reasonably believes that the document is already
in the possession, custody or control of the party to whom discovery is given.
(5) For subrule (3), in making a reasonable search,
a party may take into account:
(a) the nature and complexity of the
proceedings; and
(b) the number of documents involved; and
(c) the ease and cost of retrieving a document;
and
(d) the significance of any document likely to be
found; and
(e) any other relevant matter.
(6) If the party does not search for a category or class
of document, the party must include in the list of documents a statement of the
category or class of document not searched for and the reason why.
3 Limitation
of discovery on notice
(1) The Court may, before or after any party has been
required under rule 1 to give discovery, order that discovery under rule 2 by
any party shall not be required or shall be limited to such documents or
classes of documents, or to such of the matters in question in the proceeding,
as may be specified in the order.
(2) The Court may make such orders under subrule (1) as
are necessary to prevent unnecessary discovery.
4 Co‑respondents
Where an applicant claims relief against two or
more respondents, and requires any respondent to give discovery under rule 2,
that respondent shall serve his list of documents and affidavit not only on the
applicant but also on each other respondent who has filed a defence.
5 Order
for general discovery
The Court may, at any stage of the proceeding,
order any party to give discovery in accordance with rule 2.
6 Contents
of list — Form 22
(1) A list of documents required by or under this Order
shall, unless the Court otherwise orders, be in accordance with Form 22 and
conform to the requirements of this rule.
(2) A list of documents shall enumerate the documents
which are or have been in the possession, custody or power of the party making
the list.
(3) A list of documents shall enumerate the documents in
a convenient sequence and as shortly as possible, but shall describe each
document or, in the case of a group of documents of the same nature, shall
describe the group, sufficiently to enable the document or group to be
identified.
(4) Where a party making a list of documents claims that
any document in his possession, custody or power is privileged from production,
he shall, in the list, sufficiently state the grounds of the privilege.
(5) A list of documents shall distinguish those
documents which are in the possession, custody or power of the party making the
list from those that have been but are no longer in his possession, custody or
power.
(6) A list of documents shall, as to any document which
has been but is not then in the possession, custody or power of the party
making the list, state when he parted with the document and what has become of
it.
(7) A list of documents shall appoint a time within 7
days after service of the list when, and a place where, the documents in the
list may be inspected.
(8) Where a party making a list of documents has a
solicitor in the proceeding, the solicitor shall certify on the list that,
according to his instructions, the list and the statements in the list are
correct.
6A Discovery
of documents
A party required to give discovery who has or has
had in its possession, custody or power more than one copy, however made, of a
particular document is not required to give discovery of additional copies by
reason only of the fact that the original or any other copy is discoverable.
7 Absence
of privilege
(1) Except with the leave of the Court, a party to any
proceeding in the Court may not claim privilege from production of any document
on the ground that it relates solely to and does not tend to impeach his own
case and does not relate to or tend to support the case of any opposing party.
(2) Leave under subrule (1) shall not be granted except
for special cause.
(3) Any application to the Court for leave under subrule
(1) may be made without serving notice of the motion.
(4) The Court may, at any stage of the proceeding, order
a party to produce a document to any other party notwithstanding that leave
under subrule (1) has been granted and privilege claimed in respect of that
document.
7A Supplementary
discovery
Where a party has been required, or ordered to give
discovery, that party shall be under a continuing obligation to discover any
document not previously discovered and which would otherwise be necessary to
comply with the requirement or order.
8 Order
for particular discovery
Where, at any stage of the proceeding, it appears
to the Court from evidence or from the nature or circumstances of the case or
from any document filed in the proceeding that there are grounds for a belief
that some document or class of document relating to any matter in question in
the proceeding may be or may have been in the possession, custody or power of a
party, the Court may order that party:
(a) to file any affidavit stating whether that
document or any document of that class is or has been in his possession,
custody or power and, if it has been but is not then in his possession, custody
or power, when he parted with it and what has become of it; and
(b) to serve the affidavit on any other party.
9 Deponent
(1) Subject to subrule (2), an affidavit verifying a
list of documents of a party or an affidavit to be filed by a party pursuant to
an order under rule 8 may be made as follows:
(a) by the party;
(b) where the party is a person under disability,
by his tutor;
(c) where the party is a corporation or
organisation by a member or officer of the corporation or organisation;
(d) where the party is a body or persons lawfully
suing or being sued in the name of the body or in the name of any officer or
other person, by a member or officer of the body;
(e) where the party is the Crown or an officer
of the Crown suing or being sued in his official capacity, by an officer of the
Crown.
(2) Where the party is a person to whom any of
paragraphs (1) (c), (d) and (e) applies and the affidavit is to be
filed and served pursuant to an order, the Court may:
(a) specify by name or otherwise the person to
make the affidavit; or
(b) specify by description or otherwise the
persons from whom the party may choose the person to make the affidavit.
(3) Subject to subrule (2), where the party is a person
to whom any of paragraphs (1) (c), (d) and (e) applies, the party shall choose
a person to make the affidavit who is qualified under the relevant paragraph
and has knowledge of the facts.
Division 2 Inspection
10 Document
referred to in pleading or affidavit
(1) Where a pleading or affidavit filed by a party
refers to a document, any other party may, by notice to produce served on him
require him to produce the document for inspection.
(2) Where a notice to produce a document is served on a
party under subrule (1), he shall, within 4 days after that service, serve on
the party requiring production a notice:
(a) appointing a time within 7 days after
service of the notice under this subrule when, and a place where, the document
may be inspected;
(b) claiming that the document is privileged from
production and sufficiently stating the grounds of the privilege; or
(c) stating that the document is not in his
possession, custody or power and stating to the best of his knowledge
information and belief where the document is and in whose possession, custody
or power it is.
11 Order
for production
(1) Where:
(a) it appears from a list of documents filed by
a party under this Order that any document is in his possession, custody or
power;
(b) a pleading or affidavit filed by a party
refers to any document; or
(c) it appears to the Court from evidence or
from the nature or circumstances of the case or from any document filed in the
proceeding that there are grounds for a belief that any document relating to
any matter in question in the proceeding is in the possession, custody or power
of a party;
the Court may, subject to any question of privilege which may
arise, order the party:
(d) to produce the document for inspection by any
other party at a time and place specified in the order; or
(e) to file and serve on any other party a copy
of the whole or any part of the document, with or without an affidavit
verifying the copy made by a person who has examined the document and the copy.
(2) An affidavit made pursuant to an order under
paragraph (1) (e) shall, unless the Court otherwise orders, state whether there
are in the document copied any and, if so, what erasures, interlineations or
alterations.
12 Copying
of documents produced for inspection
A party to whom a document is produced for
inspection under this Order may, at his own expense, make copies, including
photocopies, of the document subject to any reasonable conditions which may be
imposed by the party producing the document.
13 Production
to the Court
(1) The Court may, at any stage of any proceeding, order
any party to produce to the Court any document in his possession, custody or
power relating to any matter in question in the proceeding.
(2) Upon production of a document to the Court pursuant
to an order under subrule (1), the Court may deal with the document in such
manner as the Court thinks fit.
14 Inspection
to decide objection
Where an application is made for an order under
rule 11 for the production of any document for inspection by another party or
for an order under rule 13 for the production of any document to the Court and
a claim is made that the document is privileged from production or an objection
to production is made on any other ground, the Court may inspect the document
for the purpose of deciding the validity of the claim or objection.
Division 3 General
Note Order
35A deals with the procedure on default.
15 Order
only if necessary
The Court shall not make an order under this Order
for the filing or service of any list of documents or affidavit or other
document or for the production of any document unless satisfied that the order
is necessary at the time when the order is made.
17 Public
interest
This Order does not affect any rule of law which
authorizes or requires the withholding of any document on the ground that its
disclosure would be injurious to the public interest.
18 Use
of documents
Any order or undertaking, whether express or
implied, not to use a document for any purpose other than those of the
proceedings in which it is disclosed shall cease to apply to such a document
after it has been read to or by the Court or referred to, in open Court, in
such terms as to disclose its contents unless the Court otherwise orders on the
application of a party, or of a person to whom the document belongs.
Order 15A Preliminary discovery and discovery from non‑party
1 Interpretation
In this Order, unless the context or subject‑matter
otherwise requires:
applicant means applicant for an order under
this Order.
description includes the name, and (as
applicable) the place of residence, registered office, place of business,
occupation and sex of the person against whom the applicant desires to bring a
proceeding, and also whether that person is an individual or a corporation.
possession means possession, custody or
power.
2 Privilege
An order made under this Order shall not operate to
require the person against whom the order is made to produce any document
which, on the ground of privilege, the person could not be required to produce:
(a) in the case of an order under rule 3 or rule
6, if the applicant had commenced a proceeding against the person;
(b) in the case of an order under rule 5 or rule
7, if the applicant had made the person a party to the proceeding;
(c) in the case of an order made under rule 8,
if the person had been served with a subpoena for production of the document at
the trial of the proceeding.
3 Discovery
to identify a respondent
(1) Where an applicant, having made reasonable
inquiries, is unable to ascertain the description of a person sufficiently for
the purpose of commencing a proceeding in the Court against that person (in
this rule called the person concerned) and it appears that some
person has or is likely to have knowledge of facts, or has or is likely to have
or has had or is likely to have had possession of any document or thing,
tending to assist in such ascertainment, the Court may make an order under
subrule (2).
(2) The Court may order that the person, and in the case
of a corporation, the corporation by an appropriate officer, shall:
(a) attend before the Court to be examined in
relation to the description of the person concerned;
(b) make discovery to the applicant of all
documents which are or have been in the person’s or its possession relating to
the description of the person concerned.
(3) Where the Court makes an order under paragraph (2)
(a), it may:
(a) order that the person or corporation against
whom or which the order is made shall produce to the Court on the examination any
document or thing in the person’s or its possession relating to the description
of the person concerned;
(b) direct that the examination be held before a
Registrar.
4 Conduct
money
Order 27 rule 3 as to conduct money shall apply in
relation to an order under paragraph (2) (a) of rule 3 hereof as it applies in
relation to a subpoena.
5 Party
an applicant
Rule 3 shall, with any necessary modification,
apply where the applicant is a party to a proceeding and wishes to make in the
proceeding against a person who is not a party a claim which could properly
have been made in the proceeding had the person been a party.
6 Discovery
from prospective respondent
Where:
(a) there is reasonable cause to believe that
the applicant has or may have the right to obtain relief in the Court from a
person whose description has been ascertained;
(b) after making all reasonable inquiries, the
applicant has not sufficient information to enable a decision to be made
whether to commence a proceeding in the Court to obtain that relief; and
(c) there is reasonable cause to believe that
that person has or is likely to have or has had or is likely to have had
possession of any document relating to the question whether the applicant has
the right to obtain the relief and that inspection of the document by the
applicant would assist in making the decision;
the Court may order that that person shall make discovery to the
applicant of any document of the kind described in paragraph (c).
7 Party
an applicant
Rule 6 shall, with any necessary modification,
apply where the applicant is a party to a proceeding and there is reasonable
cause to believe that the applicant has or may have the right to obtain against
a person who is not a party relief which the applicant could properly have
claimed in the proceeding had the person been a party.
8 Discovery
from non‑party
The Court may order that a person who is not a
party and in respect of whom it appears that the person has or is likely to
have or has had or is likely to have had in the person’s possession any
document which relates to any question in the proceeding shall make discovery
to the applicant of any such document.
9 Procedure
(1) An application under rule 3 shall, unless the Court
or a Judge otherwise orders, be served personally on the person concerned.
(2) An application under rule 6 shall, unless the Court
or a Judge otherwise orders, be served personally on the person mentioned in
paragraph (a) of that rule.
(3) An application under any rule of this order shall be
supported by an affidavit:
(a) stating the facts upon which the applicant
relies; and
(b) specifying or describing the documents or any
class of documents in respect of which an order is sought.
(4) A copy of the supporting affidavit shall be served
on every person upon whom the application is served.
10 Inspection
of documents
Division 2 of Order 15 shall, with any necessary
modification, apply to the inspection of the documents referred to in a list of
documents made and served in accordance with this Order as if the list were a
list of documents as mentioned in Order 15 rule 2.
11 Costs
(1) The Court may make an order for the costs and
expenses of the applicant, a party to the proceeding or a person against whom
an order is made or sought, including the following:
(a) the costs of making and serving a list of
documents;
(b) the costs of producing a document for
inspection in accordance with rule 10;
(c) the costs of complying with an order made
under Division 2 of Order 15;
(d) if the order made or sought was similar to a
subpoena — expenses or compensation that would have been allowable under
Order 27, rule 11 if the order was for a subpoena.
(2) The Court may make an order under this Order on
condition that the applicant give security for the costs and expenses of the
person against whom the order is made.
12 Power
to order inspection, preservation etc of property
The Court may also make an order providing for any
one or more of the following matters:
(a) the inspection, measurement, photocopying,
preservation, custody and detention of property:
(i) which relates to the subject
matter of the proceedings; or
(ii) as to which any question arises in
the proceedings;
(b) any of the following:
(i) taking of samples;
(ii) observation;
(iii) carrying out of any experiment;
(iv) making, playing or screening of
tape recordings and films and other means of recording sight or sound;
(v) making and reproducing or
displaying other instrumental recordings and tracings;
with respect to any such property mentioned
in paragraph (a).
Order 16 Interrogatories
1 Interrogatories
by notice — Form 23
(1) The Court may, in its discretion, give leave to any
party to file and serve upon any other party, within the period limited by the
Court for this purpose, a notice requiring the party served to answer
interrogatories relating to any matter in question between the interrogating
party and the party served.
(2) The notice to answer interrogatories shall be made
in, or substantially in, the form numbered 23 in Schedule 1.
2 Answers
pursuant to notice
(1) A party required to answer interrogatories shall do
so within such time, not being less than 14 days after service on him of the
notice under rule 1, as may be specified in the notice.
(2) A party shall, subject to rule 3, answer
interrogatories by filing and serving on the party requiring the answers:
(a) a statement in accordance with rule 6; and
(b) an affidavit verifying that statement.
3 Limitation
of interrogatories by notice
(1) The Court may, before or after any party has been
required under rule 1 to answer interrogatories, order that answers to
interrogatories under rule 2 by any party shall not be required, or shall be
limited to such interrogatories or classes of interrogatories, or to such of the
matters in question in the proceeding, as may be specified in the order.
(2) Where any party has been required under rule 1 to
answer any interrogatory, the Court may order that an answer to that
interrogatory shall not be required or may limit the extent to which an answer
shall be required.
(3) The Court may make such orders under subrules (1)
and (2) as are necessary to prevent unnecessary interrogatories or unnecessary
answers to interrogatories.
4 Co‑respondents
Where an applicant claims relief against two or
more respondents, and requires any respondent to answer interrogatories under
rule 2, that respondent shall serve his statement in answer and affidavit not
only on the applicant but also on each other respondent who has entered an
appearance.
5 Order
to answer
The Court may, at any stage of the proceeding,
order any party to answer interrogatories either in accordance with rule 2 or
in accordance with such directions as the Court may give.
6 Contents
of statement — Form 24
(1) A statement in answer to interrogatories required by
or under this Order must, unless the Court otherwise orders, be in accordance
with Form 24 and conform to the requirements of this rule.
(2) A statement in answer to interrogatories shall deal
with each interrogatory specifically either:
(a) by answering the substance of the
interrogatory without evasion; or
(b) by objecting to answer the interrogatory on
one or more of the grounds mentioned in subrule (3) and briefly stating the
facts on which the objection is based.
(3) Subject to subrule (4), a party may object to
answering any interrogatory on the following grounds but no other:
(a) where the answering is not required by an
order, that the interrogatory does not relate to any matter in question between
him and the party requiring the answer;
(b) that the interrogatory is vexatious or
oppressive; and
(c) privilege.
(4) On an application under subrule 3 (2) or rule 5 in
respect of any interrogatory, the Court may require the applicant to specify on
what grounds he objects to answering that interrogatory and may determine the
sufficiency of the objection and, if the Court determines that the objection is
not sufficient, the applicant shall not be entitled to object to answering that
interrogatory in a statement in answer to interrogatories.
7 Deponent —
Form 24
(1) Subject to subrule (2), an affidavit verifying a
statement of a party in answer to interrogatories must be in accordance with
Form 24, and may be made:
(a) by the party;
(b) where the party is a person under disability,
by his tutor;
(c) where the party is a corporation or
organisation, by a member or officer of the corporation or organisation;
(d) where the party is a body of persons lawfully
suing or being sued in the name of the body or in the name of any officer or
other person, by a member or officer of the body;
(e) where the party is the Crown or an officer
of the Crown suing or being sued in his official capacity, by an officer of the
Crown.
(2) Where the party is a person to whom any of
paragraphs (1) (c), (d) and (e) applies and the affidavit is to be
filed and served pursuant to an order, the Court may, in relation to any or all
of the interrogatories:
(a) specify by name or otherwise the person to
make the affidavit; or
(b) specify by description or otherwise the
persons from whom the party may choose the person to make the affidavit.
(3) Subject to subrule (2), where the party is a person
to whom any of paragraphs (1) (c), (d) and (e) applies, the party shall, in
relation to each interrogatory, choose a person to make the affidavit who is
qualified under the relevant paragraph and has knowledge of the facts.
8 Insufficient
answer
(1) Where a party fails to answer an interrogatory
sufficiently, the Court may:
(a) if he has made an insufficient answer, order
him to make a further answer verified by affidavit in accordance with rule 7;
or
(b) order him or any of the persons mentioned in
paragraphs 7 (1) (b) to (d) as the nature of the case requires, to attend
to be orally examined.
(2) Subrule (1) does not
limit the powers of the Court under Order 35A.
Note Order 35A deals with the procedure
on default.
10 Answers
as evidence
(1) A party may tender as evidence:
(a) one or more answers to interrogatories
without tendering the others; or
(b) part of an answer to an interrogatory without
tendering the whole of the answer.
(2) Where the whole or part of an answer to an
interrogatory is tendered as evidence, the Court may:
(a) look at the whole of the answers; and
(b) if it appears to the Court that any other
answer or any part of an answer is so connected with the matter tendered that
the matter tendered ought not to be used without that other answer or part, the
Court may reject the tender unless that other answer or part is also tendered.
11 Public
interest
This order does not affect any rule of law which
authorizes or requires the withholding of any matter on the ground that its
disclosure would be injurious to the public interest.
Order 17 Inspection of property
1 Inspection
of property
(1) The Court may, for the purpose of enabling the
proper determination of any matter in question in any proceeding, make orders
for:
(a) the inspection of any property;
(b) the taking of samples of any property;
(c) the making of any observation of any
property;
(d) the trying of any experiment on or with any
property;
(e) the observation of any process; or
(f) the copying of any document or the copying,
transcribing or production of any material, data or information stored or recorded
by mechanical or electronic means.
(2) Any order under subrule (1) may authorize any person
to enter any land or to do any other thing for the purpose of getting access to
the property.
(3) In this rule property includes any
land and any document or other chattel, whether in the ownership, possession,
custody or power of a party or not.
2 Application
and service
An order referred to in rule 1 shall not be made
against a party or a person not being a party to the proceeding unless an
application for such order is served upon that person or the Court or a Judge
orders that such service be dispensed with.
3 View
The Court may inspect, or, at a trial, may
authorize a jury to inspect, any place, process or thing with respect to which
any question arises in the proceedings.
Order 18 Admissions
1 Voluntary
admission
(1) A party to a proceeding may, by notice served on
another party, admit, in favour of the other party but for the purpose of the
proceeding only, the facts specified in the notice.
(2) A party may, with the leave of the Court, withdraw
an admission under subrule (1).
2 Notice
to admit facts — Form 25
(1) A party to a proceeding may, by notice in accordance
with Form 25 served on another party, require him to admit, for the purpose of
the proceeding only, the facts or documents specified in the notice.
Form
26
(2) If, as to any fact or document specified in the
notice, the party on whom the notice is served does not, within 14 days after
service, serve, on the party serving the notice to admit facts or documents, a
notice in accordance with Form 26 disputing that fact or document, that fact or
document shall, for the purpose of the proceeding, be admitted by the party on
whom the notice to admit facts or documents is served in favour of the party
serving the notice.
(3) A party may, with the leave of the Court, withdraw
an admission under subrule (2).
3 Admission
of documents discovered
(1) Where a list of documents is served on a party under
Order 15 (which relates to discovery and inspection of documents), and
inspection of any document specified in the list is permitted to that party
under that Order, then, subject to subrule (2), the following admissions by
that party in favour of the party serving the list shall have effect unless the
Court otherwise orders:
(a) that the document, if described in the list
as an original document, is an original document and was printed, written,
signed or executed as it purports to have been; or
(b) that the document, if described in the list as
a copy, is a true copy.
(2) Where a party:
(a) has by his pleading or affidavit denied the
authenticity of a document; or
(b) within 14 days after the time limited under
Order 15 for inspection of a document, serves on the party giving inspection a
notice that he disputes the authenticity of the document;
subrule (1) does not work an admission by the first‑mentioned party
as to that document.
(3) Subrules (1) and (2) apply in relation to an
affidavit made in compliance with an order under Order 15, rule 8 (which
relates to discovery of particular documents) as they apply in relation to a
list of documents served under that Order.
4 Judgment
on admissions
(1) If an admission is made by a party, whether by a
pleading or otherwise, the Court may pronounce any judgment or make any order
to which the applicant is entitled on the admission.
(2) The Court may exercise its powers under subrule (1)
notwithstanding that other questions in the proceeding have not been
determined.
Order 19 Motions
1 Application
(1) Any interlocutory or other application in any
proceeding which has already been commenced in accordance with these Rules
shall be made by motion.
(2) The motion shall be supported by affidavit setting
forth the facts relied upon.
(3) Such application may be made to the Court or a
Judge.
2 Notice
of motion — Form 27
(1) Subject to subrule (2), a person shall not move the
Court or a Judge for any order unless before moving he has filed notice of the
motion in accordance with Form 27 and has served the notice on each interested
party who has an address for service in the proceeding.
(2) A person may move the Court or a Judge without
previously filing or serving notice of the motion:
(a) where the preparation of the notice, or the
filing or service (as the case may be) of the notice would cause undue delay or
other mischief to the applicant;
(b) where each party interested, other than the
applicant, consents to the order;
(c) where under these Rules the motion may
properly be made without the prior filing or service (as the case may be) of
notice of the motion; or
(d) where the Court or a Judge dispenses with the
requirements of subrule (1).
(3) Notice of a motion shall:
(a) state the date and time when, and the place
where, the motion is to be made;
(b) where the Court or a Judge makes an order
under rule 3, bear a note of the order made;
(c) state concisely the nature of the order
which is sought; and
(d) name each party affected by the order which
is sought.
(4) Costs need not be specifically claimed.
3 Time
for service of notice
Where a notice of motion is required to be served,
it shall, unless the Court or a Judge otherwise orders, be served not less than
three days before the date fixed for the motion.
4 Service
Where notice of a motion is to be served on a
person who has not entered an appearance, the notice shall, unless the Court or
a Judge otherwise orders, be served personally.
5 Absence
of party
The Court or a Judge may hear and dispose of a
motion in the absence of any party:
(a) where service of notice of the motion on the
absent party is not required by the Rules or by an order; or
(b) where notice of the motion has been duly
served on the absent party.
6 Notice
of adjournment
Where a notice of motion has been served for any
date or the hearing of a motion has been adjourned to any date and, before that
date, any party files a request, bearing the consent of each other party to the
motion, for an adjournment in accordance with this rule, the hearing of the
motion shall stand adjourned to the date specified in the notice or to such
later date as the Court or a Judge may appoint.
7 Further
hearing
(1) Where notice of a motion for any day has been filed
or served, and the motion is not disposed of on that day:
(a) the Court or a Judge may hear and dispose of
the motion on any later day fixed by the Court or Judge; and
(b) subject to subrule (2), filing or service of
further notice of motion shall not be required.
(2) Paragraph (1) (b) shall not have effect:
(a) where the Court or a Judge directs the
filing or service of a further notice of motion; or
(b) where service is required on a party on whom
notice of the motion has not previously been served.
Order 20 Summary disposal and stay of proceedings
1 Definitions
In this Order:
applicant includes a cross‑claimant.
claim includes a cross‑claim.
respondent includes a cross‑respondent.
2 Summary
judgment (proceedings commenced before 1 December 2005)
(1) This rule applies to a proceeding commenced before
1 December 2005 if, for the whole or a part of an applicant’s claim for
relief:
(a) there is
evidence of the facts on which the claim or part is based; and
(b) either:
(i) there is evidence given by the
applicant or by a responsible person that, in the belief of the person giving
the evidence, the respondent has no defence to the claim or part; or
(ii) the respondent’s defence discloses
no answer to the claim or part.
(2) The Court may give judgment for the applicant on the
claim or part.
(3) If the Court gives judgment for the applicant
against the respondent under this rule, and the respondent claims relief
against the applicant, the Court may stay execution on, or other enforcement
of, the judgment until the respondent’s claim is determined.
3 Stay
of enforcement of summary judgment (proceedings commenced on or after 1 December
2005)
(1) This rule applies if:
(a) the Court gives judgment under
subsection 31A (1) of the Act for the whole or a part of the
prosecuting party’s claim for relief; and
(b) the other party claims relief against the prosecuting
party.
(2) The Court may stay execution on, or other
enforcement of, the judgment until the other party’s claim is determined.
4 Stay
or dismissal (proceedings commenced before 1 December 2005)
(1) This rule applies to a proceeding commenced before
1 December 2005 if the Court is satisfied that, for the proceeding
generally or for a claim for relief in the proceeding:
(a) no reasonable cause of action is disclosed;
or
(b) the proceeding or claim is frivolous or
vexatious; or
(c) the proceeding or claim is an abuse of the
process of the Court.
(2) The Court may order that the proceeding be stayed or
dismissed generally or in relation to the claim for relief.
(3) The Court may receive evidence on the hearing of an
application for an order under subrule (2).
5 Stay
or dismissal (proceedings commenced on or after 1 December 2005)
(1) This rule applies to a proceeding commenced on or
after 1 December 2005 if the Court is satisfied that, for the proceeding
generally or for a claim for relief in the proceeding:
(a) the proceeding or claim is frivolous or
vexatious; or
(b) the proceeding or claim is an abuse of the
process of the Court.
(2) The Court may order that the proceeding be stayed or
dismissed generally or in relation to the claim for relief.
(3) The Court may receive evidence on the hearing of an
application for an order under subrule (2).
Note For a proceeding
commenced on or after 1 December 2005 in which the prosecuting party has no
reasonable prospect of success, see subsection 31A (2) of the Act.
6 Residue
of proceedings
(1) Subrule (2) applies if, in a proceeding commenced
before 1 December 2005:
(a) a party applies for:
(i) a judgment
under rule 2; or
(ii) an order for stay or dismissal under
rule 4; and
(b) the proceeding is not wholly determined by
judgment or dismissal or is not wholly stayed.
(2) The proceeding may be continued for a claim or part
of a claim not disposed of by judgment or dismissal and not stayed.
(3) Subrule (4) applies if, in a proceeding commenced
on or after 1 December 2005:
(a) a party applies for:
(i) an order for stay or dismissal under
rule 5; or
(ii) a judgment under section 31A of
the Act; and
(b) the proceeding is not wholly determined by
judgment or dismissal or is not wholly stayed.
(4) The proceeding may be continued for a claim or part
of a claim not disposed of by judgment or dismissal and not stayed.
Order 21 Vexatious litigants
1 Vexatious
litigant
(1) If a person institutes a vexatious proceeding and
the Court is satisfied that the person has habitually, persistently and without
reasonable grounds instituted other vexatious proceedings in the Court or any
other Australian court (whether against the same person or against different
persons), the Court may order:
(a) that any proceeding instituted by the person
may not be continued without leave of the Court; and
(b) that the person may not institute a
proceeding without leave of the Court.
(2) An order under this rule may be made:
(a) on the application of a person against whom
the person mentioned in subrule (1) has instituted or conducted vexatious
proceedings; or
(b) on the application of a person who has
sufficient interest in the matter; or
(c) on the Court’s own motion; or
(d) on the application of the Attorney‑General of
the Commonwealth or of a State or Territory; or
(e) on the application of the Registrar.
2 Vexatious
proceeding against a person
Where any person (in this rule called the vexatious
litigant) habitually and persistently and without any reasonable ground
institutes a vexatious proceeding against any person (in this rule called the
person aggrieved) in the Court, the Court may, on application by the person
aggrieved, order that the vexatious litigant shall not, without leave of the
Court, institute any proceeding against the person aggrieved in the Court and
that any proceeding instituted by the vexatious litigant against the person
aggrieved in the Court before the making of the order shall not be continued by
him without leave of the Court.
3 Application
A person seeking an order under rule 1 or rule 2
shall proceed by application.
4 Rescission
or variation of order
The Court may from time to time rescind or vary any
order made by it under rule 1 or 2.
5 Leave
to start or continue proceeding
(1) If the Court has made an order under rule 1 or rule
2 against any person, the person may be given leave to institute or continue a
proceeding only if the Court is satisfied that:
(a) the proceeding is not an abuse of process;
and
(b) there is prima facie ground for the
proceeding.
(2) Unless the Court orders otherwise, an application by
a person who is subject to an order under subrule 1 (2) or rule 2 may be
determined by the Court without an oral hearing.
Order 22 Withdrawal and discontinuance
1 Withdrawal
of appearance — Form 28
A party who has entered an appearance may withdraw
the appearance, by notice in accordance with Form 28, at any time with the
leave of the Court.
2 Discontinuance —
Form 29
(1) Subject to subrules 2 and 3 a party making a claim
for relief may discontinue a proceeding so far as concerns the whole or any
part of any claim for relief, by notice in accordance with Form 29:
(a) at any time before the directions hearing
appointed in the application — without the leave of the Court or the
consent of any other party;
(b) where after the directions hearing the
proceeding continues on pleadings but the pleadings are not closed —
without the leave of the Court or the consent of any other party;
(c) where judgment has not been entered —
with the consent of all the parties; and
(d) at any time — with the leave of the
Court.
(2) A party who represents any other person in the
proceeding shall not discontinue his claim for relief under subrule (1) without
the leave of the Court.
(3) An application for a winding up order under section
459P or paragraph 461 (1) (a) of the Corporations Act 2001 may
not be discontinued without leave of the Court.
3 Costs
(1) A party who discontinues pursuant to paragraph 2 (1)
(a) or (b) shall be liable to pay the costs of the other party or parties
occasioned by the whole or the relevant part of the proceeding.
(2) A party who discontinues under
paragraph 2 (1) (c) is liable to pay the costs of the other
party or parties occasioned by the whole or the relevant part of the
proceeding, unless the terms of the consent provide otherwise.
4 Withdrawal
of defence reply etc — Form 30
(1) A party raising any matter in a defence or
subsequent pleading may withdraw that matter, at any time, by notice in
accordance with Form 30.
(2) Subrule (1) does not enable a party to withdraw,
without the consent of another party or the leave of the Court, an admission or
any other matter operating for the benefit of that other party.
5 Mode
of discontinuance or withdrawal
(1) A discontinuance or withdrawal under rule 2, 3 or 4
shall be made by filing a notice stating the extent of the discontinuance or
withdrawal.
(2) Where the discontinuance or withdrawal is by
consent, the notice under subrule (1) must bear the consent of each consenting
party.
6 Service
A party filing a notice under rule 5 shall, on the
day of filing, serve the notice on each other party.
7 Effect
of discontinuance
A discontinuance under this Order as to any cause
of action shall not, subject to the terms of any leave to discontinue, be a
defence to a proceeding for the same, or substantially the same, cause of
action.
8 Stay
to secure costs
Where:
(a) a party discontinues proceedings so far as
concerns the whole or any part of any claim for relief;
(b) he is, by reason of the discontinuance,
liable to pay the costs of another party occasioned by the proceedings; and
(c) before payment of the costs, he brings
against that other party a further proceeding on the same or substantially the
same cause of action as that on which the discontinued proceeding was brought;
the Court may stay the further proceeding until those costs are
paid.
Order 23 Offer of compromise and payment into court
1 Interpretation
In this Order, unless the contrary intention
appears:
applicant includes cross‑claimant.
claim in the proceeding includes a claim in
relation to costs to which Order 62 applies.
proceeding does not include a proceeding on
an interlocutory application that is not capable of:
(a) substantially disposing of the proceeding or
of the whole or any part of any claim for relief in the proceeding; or
(b) rendering unnecessary any trial or further
trial in the proceeding or of the whole or any part of any claim for relief in
the proceeding.
respondent includes cross‑respondent.
2 Application
(1) In any proceeding, a party may make to another party
an offer to compromise any claim in the proceeding on the terms set out in the
notice of offer.
(2) If an offer to compromise the separate claims of
several parties to the proceeding is in a single notice of offer, the notice of
offer must specify separately the offer made to each party.
3 Form
of offer
(1) An offer of compromise is made to a party by serving
a notice of the offer on the party.
(2) A notice of offer
must:
(a) be prepared in accordance with Order 41; and
(b) bear a statement to the effect that the offer
is made under this Order; and
(c) be signed by the party making the offer or
by the solicitor appearing for that party.
(3) Until an offer has been accepted, notice of the
offer must not be filed.
4 Further
requirements of offer
(1) If:
(a) a sum of money is offered; and
(b) that sum is inclusive of the costs of the
proceeding;
the notice of offer may specify the amount that is in respect of
costs.
(2) If:
(a) a sum of money is offered; and
(b) that sum is inclusive of interest;
the notice of offer must specify the amount that is in respect of
interest and how it is calculated.
(3) An offer to pay a sum of money is, unless a notice
of offer otherwise provides, taken to be an offer to pay that sum within 28
days after acceptance of the offer.
5 Time
for making or accepting offer
(1) An offer may be made at any time before the time
prescribed by subrule (7) in respect of the claim to which it relates.
(2) A party may make more than one offer.
(3) An offer may be expressed to be limited as to the
time that it is open to be accepted, but the time expressed must not be less
than 14 days beginning on the day after it is made.
(4) An offeree may accept
an offer by serving notice of acceptance in writing on the offeror before:
(a) the expiration of the time specified in
accordance with subrule (3); or
(b) the time prescribed by subrule (7) in respect
of the claim to which the offer relates;
which ever time is sooner.
(5) An offer must not be withdrawn within 14 days after
it is made, unless:
(a) the Court otherwise orders; or
(b) the offer is replaced by an offer in terms
more favourable to the offeree.
(6) An offer is open to be accepted within the period
referred to in subrule (4) despite the fact that during that period the party
to whom the offer is made makes a counter‑offer, whether or not the counter‑offer
is made in accordance with this Order.
(7) The time prescribed for the purposes of subrules (1)
and (4) is:
(a) if the trial is before a jury — when
the judge begins to sum up to the jury; or
(b) in any other case — when the Court,
registrar or taxing officer pronounces the decision or begins to give reasons
for the decision.
6 Withdrawal
of acceptance
(1) A party who accepts an offer may, by serving a
notice of withdrawal on the offeror, withdraw the acceptance:
(a) if:
(i) the offer provides for payment of
a sum of money; and
(ii) the sum is not paid to the offeree
or into Court:
(A) within 28 days after the
acceptance of the offer; or
(B) within such other time
as the offer provides; and
(iii) the notice of withdrawal is served
within 7 days after the expiration of the relevant period; or
(b) if the Court gives leave to do so.
(2) On withdrawal of an acceptance, all steps in the
proceedings taken in consequence of the acceptance have effect only as the
Court may direct.
(3) On withdrawal of an acceptance or on the motion for
leave to withdraw an acceptance, the Court may:
(a) give directions under subrule (2); and
(b) give directions for restoring the parties as
nearly as may be to their positions at the time of the acceptance; and
(c) give directions for the further conduct of the
proceedings.
7 Offer
to be without prejudice
An offer made in accordance with this Order is
taken to have been made without prejudice, unless the notice of offer otherwise
provides.
8 Offer
not to be disclosed to Court
(1) No statement of the fact that an offer has been made
is to be contained in any pleading or affidavit.
(2) If an offer has not been accepted, no communication
with respect to the offer is to be made to the Court at the trial or hearing
until after all questions of liability and the relief to be granted have been
determined.
(3) This rule does not apply where a notice of offer
provides that the offer is not made without prejudice.
9 Failure
to comply with accepted offer
(1) If a party to an accepted offer fails to comply with
the terms of the offer, the Court may, subject to rule 6:
(a) if the party is an applicant — order
that the proceeding be stayed or dismissed as to the whole or any part of the
relief claimed by the party; or
(b) if the party is a respondent — order
that the defence be struck out; or
(c) give judgment
or make an order to give effect to the terms of the offer.
(2) If:
(a) a party to an accepted offer fails to comply
with the terms of the offer; and
(b) a respondent in the proceeding has made a
cross‑claim that is not the subject of the accepted offer;
the Court may:
(c) make such order or give such judgment under
subrule (1); and
(d) make such order that the proceeding on the
cross‑claim be continued;
as it thinks fit.
10 Multiple
respondents
If:
(a) two or more respondents are alleged to be
jointly, or jointly and severally, liable to the applicant in respect of a debt
or damages; and
(b) rights of contribution or indemnity appear to
exist between the respondents;
rule 9 does not apply to an offer unless:
(c) in the case of an offer made by the
applicant — the offer:
(i) is made to all respondents; and
(ii) is an offer to compromise the
claim against all of them; or
(d) in the case of an offer made to the
applicant:
(i) the offer is to compromise the
claim against all respondents; and
(ii) if the offer is made by 2 or more
respondents — by the terms of the offer, the respondents who made the
offer are jointly, or jointly and severally, liable to the applicant for the
whole amount of the offer.
11 Costs
(1) On the acceptance of an offer of compromise in
accordance with subrule 5 (4), the applicant may, unless the Court otherwise
orders, or the offer is inclusive of the costs of the proceeding:
(a) tax costs on a party and party basis in
respect of the claim against the respondent incurred up to and including the
day the offer was accepted; and
(b) if the costs are not paid within 4 days after
the signing of a certificate of taxation — enter judgment against that
respondent for the taxed costs.
(2) If a notice of offer contains a term that purports
to negative or limit the operation of subrule (1), that term is of no effect
for any purpose of this Order.
(3) Subrules (4), (5) and (6) apply to an offer that has
not been accepted within the time prescribed by subrule 5 (4).
(4) If:
(a) an offer is made by an applicant and not
accepted by the respondent; and
(b) the applicant obtains judgment on the claim
to which the offer relates not less favourable than the terms of the offer;
then, unless the Court otherwise orders, the applicant is entitled
to an order against the respondent for costs incurred in respect of the claim:
(c) up to and including the day the offer was
made — taxed on a party and party basis; and
(d) after that day — taxed on an indemnity
basis.
(5) If:
(a) an offer is made by a respondent and not
accepted by the applicant; and
(b) the applicant obtains judgment on the claim
to which the offer relates not more favourable than the terms of the offer;
then, unless the Court otherwise
orders:
(c) the applicant is entitled to an order that
the respondent pay the applicant’s costs in respect of the claim incurred up to
11 am on the day after the day when the offer was made, taxed on a party
and party basis; and
(d) the respondent is entitled to an order that
the applicant pay the respondent’s costs in respect of the claim incurred after
that time, taxed on an indemnity basis.
(6) If:
(a) an offer is made by a respondent and not
accepted by the applicant; and
(b) the respondent obtains an order or judgment
on the claim to which the offer relates as favourable to the respondent, or
more favourable to the respondent, than the terms of the offer;
then, unless the Court otherwise orders:
(c) the respondent is entitled to an order that
the applicant pay the respondent’s costs in respect of the claim incurred up to
11 am on the day after the day the offer was made, taxed on a party and party
basis; and
(d) the respondent is entitled to an order that
the applicant pay the respondent’s costs in respect of the claim incurred after
that time, taxed on an indemnity basis.
(7) If an applicant obtains judgment for the payment of
a debt or damages and:
(a) the amount for which judgment is given
includes interest or damages in the nature of interest; or
(b) by or under any Act the Court awards the
applicant interest or damages in the nature of interest in respect of the
amount;
then, for the purpose of determining the consequences as to costs
referred to in subrules (4) and (5), the Court must disregard so much of the
interest as relates to the period after the day the offer was made.
(8) Subrules (4) and (5) do not apply unless the Court
is satisfied by the party making the offer that the party was at all material
times willing and able to perform the offer if the offer had been accepted.
12 Where
tender before action pleaded
If a respondent pleads, or otherwise raises, a
defence of tender before action, the sum of money alleged to have been tendered
must, unless the Court otherwise orders, be paid into Court.
13 Payment
of money out of Court
Money paid into Court must not be paid out of Court
except under an order of the Court or a Judge.
14 Notice
of deposit — Form 31
If a party pays, or files a security to pay, money
into Court, that party must, at the same time, file a notice in accordance with
Form 31.
15 Security
to pay into Court — Form 36
(1) A security to pay money into Court must be an
instrument in accordance with Form 36 or in a form approved by the Registrar by
which an authorised person (whether a party to the proceeding or not):
(a) promises to pay into Court, when ordered to
do so, a specified sum of money (in this rule called the money secured);
and
(b) gives an address for service.
(2) A person who is a licensed or authorised insurer
under legislation of any State or Territory providing for workers’ compensation
or the insurance of motor vehicles against third party claims must, unless the
Court otherwise orders, be an authorised person for the purposes of this rule.
(3) A person approved by the Court is taken to be an
authorised person for the purposes of this rule.
(4) A person giving security under this rule may pay the
money secured into Court and thereupon:
(a) subject to any order or judgment for
interest under this rule, or for costs — that person has no further
liability on the security in the proceeding; and
(b) the money paid into Court must, unless the
Court otherwise orders, be dealt with as if it had been brought into Court in
place of the security by the party filing the security.
(5) If a security has been filed, the Court may order
the person giving the security to pay, within the time specified in the order,
the whole or any part of the money secured:
(a) into Court; or
(b) to such person as the Court may direct.
(6) If a person giving a security fails to comply with
an order under subrule (5), the Court may:
(a) order the person giving the security to pay
into Court, or pay to such person as the Court may direct, interest on the
money unpaid until payment at such rate not exceeding 10% per annum as the
Court may determine;
(b) in addition to any order as to costs which
the Court may make, order the person giving the security to pay the costs of
any party incurred by reason of failure to comply with the order under subrule
(5) (including costs known as ‘costs thrown away’).
(7) The Court may pronounce such judgment as the nature
of the case may require in favour of any party against a person giving a
security for:
(a) the whole or any part of any money secured;
or
(b) interest or costs the subject of an order
under subrule (5) or (6); or
(c) costs.
(8) A party moving for an order or direction under
subrule (5), (6) or (7) must serve notice of the motion on the person giving
the security.
(9) A party filing a security must, on the day of
filing, serve a copy of it on each party interested.
16 Service
A party filing a notice under this Order must, on
the day of filing, serve the notice on each other party on whom the notice has
not previously been served.
Order 24 Evidence taken in Australia or abroad or evidence taken
under Part 2 of the Foreign Evidence Act 1994
1 Order
for examination of witness — Forms 37, 38 and 39
(1) The Court may, for the purpose of proceedings in the
Court, make orders:
(a) for the examination of any person on oath or
affirmation before a Judge or before such other person as the Court may appoint
as examiner at any place whether in or out of Australia; or
(b) for the sending or issue of a letter of
request to the judicial authorities of another country to take, or cause to be
taken, the evidence of any person.
(2) Drafts of the orders must be lodged:
(a) for examination — in accordance with
Form 37; and
(b) for appointment of an examiner — in
accordance with Form 38; and
(c) for a letter of request — in accordance
with Form 39.
2 Letter
of request
(1) Upon the making of an order under paragraph 1 (b) or
under paragraph 7 (1) (c) of the Foreign Evidence Act 1994 for the
sending or issue of a letter of request, the party obtaining the order shall:
(a) lodge with the Registrar:
(i) a form of the appropriate letter
of request;
(ii) the interrogatories (if any) and
cross‑interrogatories (if any) to accompany the letters of request; and
(iii) where English is not an official
language of the country to whose judicial authorities the letter of request is
to be sent, a translation of each of the documents mentioned in subparagraph
(i) and (ii) in an official language of that country appropriate to the place
where the evidence is to be taken; and
(b) file:
(i) a copy of each of the documents
mentioned in paragraph (a); and
(ii) an undertaking by the party
obtaining the order or his solicitor to be responsible for all expenses
incurred by the Court or by any person at the request of the Court in respect
of the letter of request and, on being given notice of the amount of any such
expenses, to pay the amount to the Registrar.
(2) A translation lodged under subparagraph (1) (a)
(iii) must be certified by the person making it to be a correct translation,
and the certificate must state his full name and address and his qualifications
for making the translation.
2A Procedure
where orders are made under paragraph 7 (1) (a) or (b) of the Foreign
Evidence Act 1994
If an order is made under paragraph 7 (1) (a) or
(b) of the Foreign Evidence Act 1994, rules 3 to 11 apply, mutatis
mutandis, subject to any directions which may be given by the Court under
subsection 8 (1) of that Act.
3 Documents
for examiner
(1) The party obtaining an order for examination before
an examiner under paragraph 1 (a) or under paragraph 7 (1) (a) or (b) of the Foreign
Evidence Act 1994 shall furnish the examiner with copies of such of the
documents in the proceeding as are necessary to inform the examiner of the
questions to which the examination is to relate.
(2) Where the documents in the proceeding are not
sufficient to inform the examiner of the questions to which the examination is
to relate the Court shall, in the order for examination or in a later order,
state the question to which the examination is to relate.
4 Appointment
for examination
(1) Unless otherwise ordered by the Court, the examiner
shall appoint a place and time for the examination.
(2) Where an examiner appoints a time under subrule (1)
it shall, having regard to the convenience of the person to be examined and to
the circumstances, be as soon as practicable after the making of the order.
(3) Where an examiner appoints a time under subrule (1)
he shall give notice of the appointment to the party obtaining the order and
that party shall, not less than 3 days before the time appointed, give notice
of the appointment to each other party.
5 Conduct
of examination
(1) The examiner shall permit each party and any legal
practitioner representing the party to attend the examination.
(2) Subject to this Order, the proceeding before the
examiner shall be in accordance with the procedure of the Court.
(3) A person examined before an examiner may, unless the
Court otherwise orders, be cross‑examined and re‑examined.
(4) The examination, cross‑examination and re‑examination
of a person before an examiner shall, unless the Court otherwise orders, be
conducted in like manner as at a trial.
(5) The examiner may put any question to a person examined
before him as to:
(a) the meaning of any answer made by that
person; or
(b) any matter arising in the course of the
examination.
(6) The examiner may adjourn the examination from time
to time or from place to place.
6 Examination
of additional persons
The examiner may, with the consent in writing of
each party to the proceeding, take the examination of any person in addition to
the person named or provided for in the order for examination and, if he does
so, he shall annex to the deposition of that person the consent of each of the
parties.
7 Objection
If a person being examined before the examiner
objects to answering a question or producing a document or thing:
(a) the examiner must state to the parties the
examiner’s opinion on, but must not decide, the validity of the ground for the
objection; and
(b) the following information must be set out in
the deposition of the person or in a statement attached to the deposition:
(i) the question;
(ii) the ground for the objection;
(iii) the opinion of the examiner;
(iv) the answer (if any); and
(c) the Court may decide the validity of the
ground for the objection; and
(d) if the Court decides against the person
making the objection or any party, the Court may order the person or party to
pay the costs occasioned by the objection.
8 Taking
of depositions
(1) The deposition of a person examined before an
examiner must be taken down by the examiner or a shorthand writer or some other
person in the presence of the examiner.
(2) The deposition must contain as nearly as may be the
statement of the person examined.
(3) The examiner may direct that the words of any
question and the answer to the question be set out in the deposition.
(4) Subject to subrules (2) and (3) and subject to
paragraph 7 (b) the deposition need not set out every question and answer.
9 Authentication
and filing
(1) The deposition of a person examined (or the
shorthand notes of his examination) shall be read to him.
(2) The examiner shall, if any party so requests, ask
the person examined to sign his deposition.
(3) The examiner shall authenticate the deposition by
his signature.
(4) The examiner shall make on, or attach to, the
deposition a note signed by him of the time occupied in the examination and the
fees received by him in respect of the examination.
(5) The examiner shall send the deposition to the
Registrar and the Registrar shall file it in the proceeding.
(6) The examiner shall, unless the Court otherwise
orders, send the exhibits to the Registrar and the Registrar shall deal with
the exhibits in such manner as the Court may direct.
10 Special
report
(1) The examiner may make to the Court a special report
with regard to an examination before him and with regard to the absence of any
person from, or the conduct of any person at, the examination.
(2) The Court may direct such proceedings to be taken,
or make such order, on the report as the Court thinks fit.
11 Default
of witness
(1) Where a person has been required by subpoena to
attend before an examiner, and the person refuses to be sworn for the purposes
of the examination or to answer any lawful question, or to produce any document
or thing, the examiner must, at the request of any party, give to that party a
certificate, signed by the examiner, of the refusal.
(2) On the certificate being filed, the Court may:
(a) order that person to be sworn, or to answer
the question or to produce the document or thing as the case may be; and
(b) order that person to pay any costs occasioned
by the person’s refusal.
12 Order
for payment of expenses
Where a party has given an undertaking as mentioned
in subparagraph 2 (1) (b) (ii) and does not, within 7 days after service on him
of notice of the amount of the expenses concerned, pay the amount of the
expenses to the Registrar, the Court may, on application by the Registrar:
(a) order the party to pay the amount of the
expenses to the Registrar; and
(b) stay the proceeding until payment so far as
concerns the whole or any part of any claim for relief by that party.
13 Perpetuation
of testimony
(1) Witnesses shall not be examined to perpetuate
testimony unless a proceeding has been commenced for the purpose.
(2) Any person who would, in the circumstances alleged
by him to exist, become entitled, upon the happening of any future event, to
any property, the right or claim to which cannot be tried before the happening
of the future event, may commence a proceeding to perpetuate any testimony
which may be material for establishing the right or claim.
(3) A proceeding to perpetuate the testimony of
witnesses shall not be set down for trial.
(4) Where a proceeding to perpetuate testimony touches
any matter or thing in which the Crown may have an interest, the Attorney‑General
may be made a respondent.
(5) Where, pursuant to subrule (4), the Attorney‑General
is made a respondent to a proceeding to perpetuate testimony, a deposition
taken in that proceeding shall not be inadmissible in other proceedings by
reason that the Crown was not a party to the proceeding to perpetuate testimony.
(6) Subrule (2) does not affect the right of any person
to commence a proceeding to perpetuate testimony in cases to which that subrule
does not apply.
14 Exclusion
of evidence in criminal proceedings
This order does not affect the power of the Court
in a criminal proceeding to exclude evidence that has been obtained illegally
or would, if admitted, operate unfairly against a defendant.
Order 25 Interim Orders
1 Order
before commencement of proceeding
(1) In an urgent case, the Court or a Judge may, on the
application of a person who intends to commence a proceeding:
(a) grant an injunction;
(b) appoint a receiver; or
(c) make an order under rule 2;
to the same extent, as if the applicant had commenced the
proceeding and the application were made in the proceeding and whether or not
the party against whom relief is sought has been given notice of the
application.
(2) An applicant under subrule (1) must give an
undertaking to the Court to commence proceedings in relation to the subject matter
of the application within 14 days of the determination of the application.
2 Preservation
of property
(1) In a proceeding concerning any property, or in a
proceeding in which any question may arise as to any property, the Court or a
Judge may make orders for the detention, custody, preservation or inspection of
the property.
(2) An order under subrule (1) may authorize any person
to enter any land or to do any other thing for the purpose of giving effect to
the order.
(3) In a proceeding concerning the right of any party to
a fund, the Court or a Judge may order that the fund be paid into Court or
otherwise secured.
3 Disposal
of personal property
Where, in a proceeding concerning any property
(other than land) or in a proceeding in which any question may arise as to any
property (other than land), it appears to the Court or a Judge that:
(a) the property is of a perishable nature or is
likely to deteriorate; or
(b) for any other reason it is desirable that the
property should be sold or otherwise disposed of;
the Court or the Judge may make an order for the sale or other
disposal of the whole or any part of the property by such person, in such
manner, and upon such terms (if any) as the Court or the Judge may direct.
4 Interim
distribution
Where, in a proceeding concerning property, it
appears to the Court or a Judge that the property is more than sufficient to
answer the claims on the property for which provision ought to be made in the
proceeding, the Court or the Judge may allow any part of the property to be
conveyed, transferred or delivered to any person having an interest in the
property.
5 Interim
income
Where, in a proceeding concerning property, it
appears to the Court or a Judge that the whole or any part of the income of the
property is not required to answer the claims on the property or its income for
which provision ought to be made in the proceeding, the Court or a Judge may
allow that income or part to be paid during such period as the Court may
determine, to all or any of the persons having an interest in the income.
6 Payment
before ascertainment of all persons interested
Where two or more persons are entitled to share in
a fund, the Court or a Judge may order or allow immediate payment to any of
those persons of his share without reserving any part of his share to meet the
subsequent costs of ascertaining any other of those persons.
7 Terms: time for order
The Court or a Judge may make orders under this
Order at any stage of the proceeding.
8 Interim Orders
(1) This rule refers to matters pending in the General
Division of the Court.
(2) When in any State a party wishes to make an
application to a Judge in Chambers for interim relief but no Judge of the Court
is available there to take the application, the party shall give notice to the
Registrar of the Federal Court in that State of his desire to make such an
application.
(3) Upon receipt of such notice the Registrar will,
where it is reasonably practicable to do so, inquire of the Chief Justice as to
any arrangement the Chief Justice wishes to make pursuant to subsection 15 (1)
of the Act, and will inform the party of the result of that inquiry, where such
inquiry takes place.
(4) If it is not reasonably practicable for the
Registrar to inquire of the Chief Justice or if following an inquiry the
Registrar informs the party that no Judge can be made available to hear the
application the party may then approach the State Supreme Court to ascertain
whether a Supreme Court Judge is available to hear it.
(5) If the Party is able to arrange for a State Supreme
Court Judge to hear the application the forms and procedures to be used shall
be in accordance with these Rules.
(6) The Registrar will arrange when necessary for the
Court’s documents including the proposed application to be placed before the
State Supreme Court Judge.
(7) After the State
Supreme Court Judge exercising such jurisdiction has heard the application, the
Registrar will arrange for the Court’s documents to be returned to the Registry
together with the notes of any orders made and any exhibits and transcript of
evidence.
Order 25A Freezing Orders
1 Interpretation
In this Order, unless the contrary intention
appears:
ancillary order has the meaning given by rule
3.
another court means a court outside Australia
or a court in Australia other than the Court.
applicant means a person who applies for a
freezing order or an ancillary order.
freezing order has the meaning given by rule
2.
judgment includes an order.
respondent means a person against whom a freezing
order or an ancillary order is sought or made.
2 Freezing order
(1) The Court may make an order (a freezing
order), upon or without notice to a respondent, for the purpose of
preventing the frustration or inhibition of the Court’s process by seeking to
meet a danger that a judgment or prospective judgment of the Court will be
wholly or partly unsatisfied.
(2) A freezing order may be an order
restraining a respondent from removing any assets located in or outside
Australia or from disposing of, dealing with, or diminishing the value of,
those assets.
3 Ancillary order
(1) The Court may make an order (an ancillary
order) ancillary to a freezing order or prospective freezing order as
the Court considers appropriate.
(2) Without limiting the generality of
subrule (1), an ancillary order may be made for either or both of the following
purposes:
(a) eliciting information
relating to assets relevant to the freezing order or prospective freezing
order;
(b) determining whether the
freezing order should be made.
4 Respondent need not be party to proceeding
The Court may make a freezing
order or an ancillary order against a respondent even if the respondent is not
a party to a proceeding in which substantive relief is sought against the
respondent.
5 Order against judgment debtor or prospective judgment
debtor or third party
(1) This rule applies if:
(a) judgment has been given in
favour of an applicant by:
(i) the Court; or
(ii) in the case of a
judgment to which subrule (2) applies — another court; or
(b) an applicant has a good
arguable case on an accrued or prospective cause of action that is justiciable
in:
(i) the Court; or
(ii) in the case of a
cause of action to which subrule (3) applies — another court.
(2) This subrule applies to a judgment
if there is a sufficient prospect that the judgment will be registered in or
enforced by the Court.
(3) This subrule applies to a cause of
action if:
(a) there is a sufficient
prospect that the other court will give judgment in favour of the applicant;
and
(b) there is a sufficient
prospect that the judgment will be registered in or enforced by the Court.
(4) The Court may make a freezing order
or an ancillary order or both against a judgment debtor or prospective judgment
debtor if the Court is satisfied, having regard to all the circumstances, that
there is a danger that a judgment or prospective judgment will be wholly or
partly unsatisfied because any of the following might occur:
(a) the judgment debtor,
prospective judgment debtor or another person absconds; or
(b) the assets of the judgment
debtor, prospective judgment debtor or another person are:
(i) removed from
Australia or from a place inside or outside Australia; or
(ii) disposed of,
dealt with or diminished in value.
(5) The Court may make a freezing order
or an ancillary order or both against a person other than a judgment debtor or
prospective judgment debtor (a third party) if the Court is
satisfied, having regard to all the circumstances, that:
(a) there is a danger that a
judgment or prospective judgment will be wholly or partly unsatisfied because:
(i) the third party
holds or is using, or has exercised or is exercising, a power of disposition
over assets (including claims and expectancies) of the judgment debtor or
prospective judgment debtor; or
(ii) the third party
is in possession of, or in a position of control or influence concerning,
assets (including claims and expectancies) of the judgment debtor or
prospective judgment debtor; or
(b) a process in the Court is or
may ultimately be available to the applicant as a result of a judgment or
prospective judgment, under which process the third party may be obliged to
disgorge assets or contribute toward satisfying the judgment or prospective
judgment.
(6) Nothing in this rule affects the
power of the Court to make a freezing order or ancillary order if the Court
considers it is in the interests of justice to do so.
6 Jurisdiction
Nothing in this Order diminishes
the inherent, implied or statutory jurisdiction of the Court to make a freezing
order or ancillary order.
7 Service outside Australia of application for freezing
order or ancillary order
An application for a freezing
order or an ancillary order may be served on a person who is outside Australia
(whether or not the person is domiciled or resident in Australia) if any of the
assets to which the order relates are within the jurisdiction of the Court.
8 Costs
(1) The Court may make any order as to
costs as it considers appropriate in relation to an order made under this
Order.
(2) Without limiting the generality of
subrule (1), an order as to costs includes an order as to the costs of any
person affected by a freezing order or ancillary order.
Order 25B Search Orders
1 Interpretation
In this Order, unless the contrary intention
appears:
applicant means an applicant for a search
order.
described includes described generally
whether by reference to a class or otherwise.
premises includes a vehicle or vessel of any
kind.
respondent means a person against whom a search
order is sought or made.
search
order has the meaning
given by rule 2.
2 Search
order
The Court may make an order (a search order),
in any proceeding or in anticipation of any proceeding in the Court, with or
without notice to the respondent, for the purpose of securing or preserving
evidence and requiring a respondent to permit persons to enter premises for the
purpose of securing the preservation of evidence which is, or may be, relevant
to an issue in the proceeding or anticipated proceeding.
3 Requirements
for grant of search order
The Court may make a search order if the Court is
satisfied that:
(a) an applicant seeking the order has a strong
prima facie case on an accrued cause of action; and
(b) the potential or actual loss or damage to the
applicant will be serious if the search order is not made; and
(c) there is sufficient evidence in relation to
a respondent that:
(i) the respondent possesses important
evidentiary material; and
(ii) there is a real possibility that
the respondent might destroy such material or cause it to be unavailable for
use in evidence in a proceeding or anticipated proceeding before the Court.
4 Jurisdiction
Nothing in this Order diminishes
the inherent, implied or statutory jurisdiction of the Court to make a search
order.
5 Terms of search order
(1) A search order may direct each
person who is named or described in the order:
(a) to permit, or arrange to
permit, such other persons as are named or described in the order:
(i) to enter premises
specified in the order; and
(ii) to take any steps
that are in accordance with the terms of the order; and
(b) to provide, or arrange to
provide, such other persons named or described in the order with any
information, thing or service described in the order; and
(c) to allow such other persons
named or described in the order to take and retain in their custody any thing
described in the order; and
(d) not to disclose any
information about the order, for up to 3 days after the date on which the
order was served, except for the purposes of obtaining legal advice or legal
representation; and
(e) to do or refrain from doing
any act as the Court considers appropriate.
(2) Without limiting the generality of
subparagraph (1) (a) (ii), the steps that may be taken in relation to
a thing specified in a search order include:
(a) searching for, inspecting
or removing the thing; and
(b) making or obtaining a record
of the thing or any information it may contain.
(3) A search order may contain such
other provisions as the Court considers appropriate.
(4) In subrule (2):
record includes a copy, photograph, film or sample.
6 Independent solicitors
(1) If the Court makes a search order,
the Court must appoint one or more solicitors, each of whom is independent of
the applicant’s solicitors, (the independent solicitors) to
supervise the execution of the order, and to do such other things in relation
to the order as the Court considers appropriate.
(2) The Court may appoint an
independent solicitor to supervise execution of the order at any one or more
premises, and a different independent solicitor or solicitors to supervise
execution of the order at other premises, with each independent solicitor
having power to do such other things in relation to the order as the Court
considers appropriate.
7 Costs
(1) The Court may make any order as to
costs that it considers appropriate in relation to an order made under this
Order.
(2) Without limiting the generality of
subrule (1), an order as to costs includes an order as to the costs of any
person affected by a search order.
Order 26 Receivers
1 Receiver
and manager
(1) A party applying for an order for the appointment of
a receiver under any Act, shall move the Court or a Judge for the order on
notice, but in urgent cases may move ex parte.
(2) Unless the Court otherwise orders, a person
appointed by the Court as a receiver shall have the powers of a receiver and
manager.
2 Address
for service
A receiver shall, within 7 days after his
appointment, file a notice specifying an address for service.
3 Security —
Form 40
(1) Where the Court appoints a receiver, the Court may
give directions for the filing by the receiver of security in accordance with
this rule.
(2) Where the Court directs the appointment of a
receiver, then, unless the Court otherwise orders, a person shall not be
appointed receiver pursuant to the direction until he has filed a security in
accordance with Form 40.
(3) A security to be filed in accordance with this rule
shall be a security approved by the Court that the receiver will account for
what he receives as receiver and will deal with what he receives as the Court
may direct.
(4) Where a security has been filed under this rule, the
Court may make orders for the vacation of the security.
4 Remuneration
A receiver shall be allowed such remuneration, if
any, as may be fixed by the Court.
5 Accounts
(1) A receiver shall file accounts at such intervals or
on such dates as the court may direct.
(2) The receiver shall, on the day on which he files an
account, obtain an appointment to pass the account and serve the account, with
a note of the appointment, on each party interested who has an address for
service in the proceeding.
(3) The receiver shall, unless the Court otherwise
orders, attend on the appointment to pass the account.
6 Default
(1) Where a receiver:
(a) is required by these Rules or by an order or
direction of the Court:
(i) to file any account or affidavit;
(ii) to attend on an appointment to
pass his account; or
(iii) to do any other thing; and
(b) does not carry out the requirement;
the Court may make such orders and give such directions as the
Court thinks fit, including orders and directions for:
(c) the discharge of the receiver;
(d) the appointment of another receiver; and
(e) the payment of costs.
(2) Without limiting subrule (1), where a receiver is
required by these Rules or by an order or direction of the Court to pay into
Court any sum shown by his account as due from him, and he does not carry out
the requirement, the Court may charge him with interest at the rate of 10 per
cent yearly on that sum while in his possession as receiver.
(3) This rule does not limit the powers of the Court as
to the enforcement of orders or as to the punishment of contempt.
7 Powers
(1) The Court may authorize a receiver to do (either in
his own name or in the name of the parties or any of them and either generally
or in any particular instance) any act or thing which the parties or any of
them might do if of full age and capacity.
(2) Subrule (1) has effect notwithstanding that the
parties or any of them are not of full age and capacity.
(3) This rule does not limit the powers of the Court
apart from this rule to authorize a receiver to do any act or thing.
8 Account
on death
(1) Where a receiver in any proceeding dies, the Court
may make such orders as the Court thinks fit for the filing and passing of
accounts by the representatives of the deceased receiver or by any other person
who has or has had possession or control of any property being subject to the
receivership for the payment into Court of any amount shown to be due or for
the delivery of any property being subject to the receivership.
(2) The Court shall not make any order under subrule (1)
unless notice of the proposed order has been served on the representatives or
any other person.
(3) Notice of a proposed order under this rule may be
served in any manner in which a statement of claim may be served.
Order 27 Subpoenas
1 Definitions
(1) In this Order, unless the contrary intention
appears:
addressee means the person who is the subject
of the order expressed in a subpoena.
conduct money means a sum of money or its
equivalent, such as pre‑paid travel, sufficient to meet the reasonable expenses
of the addressee of attending court as required by the subpoena and returning
after so attending.
issuing officer means an officer empowered to
issue a subpoena on behalf of the Court.
issuing party means the party at whose
request a subpoena is issued.
subpoena means an order in writing requiring
the addressee:
(a) to attend to give evidence; or
(b) to produce the subpoena or a copy of it and a
document or thing; or
(c) to do both of those things.
(2) To the extent that a subpoena requires the addressee
to attend to give evidence, it is called a subpoena to attend to give
evidence.
(3) To the extent that a subpoena requires the addressee
to produce the subpoena or a copy of it and a document or thing, it is called a
subpoena to produce.
2 Issuing
of subpoena
(1) The Court may, in any proceeding, by subpoena order
the addressee:
(a) to attend to give evidence as directed by
the subpoena; or
(b) to produce the subpoena or a copy of it and
any document or thing as directed by the subpoena; or
(c) to do both of those things.
(2) An issuing officer must not issue a subpoena:
(a) if the Court has made an order, or there is
a rule of the Court, having the effect of requiring that the proposed subpoena:
(i) not be issued; or
(ii) not be issued without the leave of
the Court and that leave has not been given; or
(b) requiring the production of a document or
thing in the custody of the Court or another court.
Note for paragraph (a) Order 27A deals
with applications to the Court for leave to issue a subpoena.
(3) The issuing officer must seal with the seal of the
Court, or otherwise authenticate, a sufficient number of copies of the subpoena
for service and proof of service.
(4) A subpoena is taken to have been issued on its being
sealed or otherwise authenticated in accordance with subrule (3).
3 Form
of subpoena
(1) A subpoena must be in accordance with Form 41.
(2) A subpoena must not be addressed to more than one
person.
(3) Unless the Court otherwise orders, a subpoena must
identify the addressee by name or by description of office or position.
(4) A subpoena to produce must:
(a) identify the document or thing to be
produced; and
(b) specify the date, time and place for
production.
(5) A subpoena to attend to give evidence must specify
the date, time and place for attendance.
(6) The date specified in a subpoena must be the date of
trial or any other date as permitted by the Court.
(7) The place specified for production may be the Court
or the address of any person authorised to take evidence in the proceeding as
permitted by the Court.
(8) The last date for service of a subpoena:
(a) is:
(i) the date falling 5 days before the
earliest date on which the addressee is required to comply with the subpoena;
or
(ii) an earlier or later date fixed by
the Court; and
(b) must be specified in the subpoena.
(9) If the addressee is a corporation, the corporation
must comply with the subpoena by its appropriate or proper officer.
3A Change
of date for attendance or production
(1) The issuing party may give notice to the addressee
of a date or time later than the date or time specified in a subpoena as the
date or time for attendance or for production or for both.
(2) Where notice is given under subrule (1), the
subpoena has the effect as if the date or time notified appeared in the subpoena
instead of the date or time that appeared in the subpoena.
4 Setting
aside or other relief
(1) The Court may, on the application of a party or any
person having a sufficient interest, set aside a subpoena in whole or in part,
or grant other relief in respect of it.
(2) An application under subrule (1) must be made on
notice to the issuing party.
(3) The Court may order that the applicant give notice
of the application to any other party or to any other person having a
sufficient interest.
5 Service
(1) A subpoena must be served personally on the
addressee.
(2) The issuing party must serve a copy of a subpoena to
produce on each other party as soon as practicable after the subpoena has been
served on the addressee.
6 Compliance
with subpoena
(1) An addressee need not comply with the requirements
of a subpoena to attend to give evidence unless conduct money has been handed
or tendered to the addressee a reasonable time before the date on which
attendance is required.
(2) An addressee need not comply with the requirements
of a subpoena unless it is served on or before the date specified in the
subpoena as the last date for service of the subpoena.
(3) Despite subrule 5 (1), an addressee must comply
with the requirements of a subpoena even if it has not been served personally
on that addressee if the addressee has, by the last date for service of the
subpoena, actual knowledge of the subpoena and of its requirements.
(4) The addressee must comply with a subpoena to
produce:
(a) by attending at the date, time and place
specified for production, or, if the addressee has received notice of a later
date or time from the issuing party, at that later date or time, and producing
the subpoena or a copy of it and the document or thing to the Court or to the person
authorised to take evidence in the proceeding as permitted by the Court; or
(b) by delivering or sending the subpoena or a
copy of it and the document or thing to the Registrar at the address specified
for the purpose in the subpoena, or, if more than one address is so specified,
at any one of those addresses, so that they are received not less than 2 clear
days before the date specified in the subpoena for attendance and production
or, if the addressee has received notice of a later date or time from the
issuing party, before that later date.
(5) In the case of a subpoena that is both a subpoena to
attend to give evidence and a subpoena to produce, production of the subpoena
or a copy of it and of the document or thing in any of the ways permitted by subrule
(4) does not discharge the addressee from the obligation to attend to give
evidence.
7 Production
otherwise than upon attendance
(1) This rule applies if an addressee produces a
document or thing in accordance with paragraph 6 (4) (b).
(2) The Registrar must, if requested by the addressee,
give a receipt for the document or thing to the addressee.
(3) If the addressee produces more than one document or
thing, the addressee must, if requested by the Registrar, provide a list of the
documents or things produced.
(4) The addressee may, with the consent of the issuing
party, produce a copy, instead of the original, of any document required to be
produced.
(5) The addressee may at the time of production inform
the Registrar in writing that any document or copy of a document produced need
not be returned and may be destroyed.
8 Removal,
return, inspection, copying and disposal of documents and things
The Court may give directions in relation to the
removal from and return to the Court, and the inspection, copying and disposal,
of any document or thing that has been produced to the Court in response to a
subpoena.
9 Inspection
of, and dealing with, documents and things produced otherwise than on
attendance
(1) This rule applies if an addressee produces a
document or thing in accordance with paragraph 6 (4) (b).
(2) On the request in writing of a party, the Registrar
must inform the party whether production in response to a subpoena has
occurred, and, if so, include a description, in general terms, of the documents
and things produced.
(3) Subject to this rule, no person may inspect a
document or thing produced unless the Court has granted leave and the
inspection is in accordance with that leave.
(4) Unless the Court otherwise orders, the Registrar may
permit the parties to inspect at the Registry any document or thing produced
unless the addressee, a party or any person having sufficient interest objects
to the inspection under this rule.
(5) If the addressee objects to a document or thing
being inspected by any party to the proceeding, the addressee must, at the time
of production, notify the Registrar in writing of the objection and of the
grounds of the objection.
(6) If a party or person
having a sufficient interest objects to
a document or thing being inspected by a party to the proceeding, the objector
may notify the Registrar in writing of the objection and of the grounds of the
objection.
(7) On receiving notice of an objection under this rule,
the Registrar:
(a) must not permit any, or any further,
inspection of the document or thing the subject of the objection; and
(b) must refer the objection to the Court for
hearing and determination.
(8) The Registrar must notify the issuing party of the
objection and of the date, time and place at which the objection will be heard,
and the issuing party must notify the addressee, the objector and each other
party accordingly.
(9) The Registrar must not permit any document or thing
produced to be removed from the Registry except on application in writing
signed by the solicitor for a party.
(10) A solicitor who signs an application under subrule
(9) and removes a document or thing from the Registry, undertakes to the Court
by force of this Rule that:
(a) the document or thing will be kept in the personal
custody of the solicitor or a barrister briefed by the solicitor in the
proceeding; and
(b) the document or thing will be returned to the
Registry in the same condition, order and packaging in which it was removed, as
and when directed by the Registrar.
(11) The Registrar may, in the Registrar’s discretion,
grant an application under subrule (9) subject to conditions or refuse to
grant the application.
10 Return
of documents and things produced
(1) Unless the Court otherwise orders, the Registrar may,
in the Registrar’s discretion, return to the addressee any document or thing
produced in response to the subpoena.
(2) Unless the Court otherwise orders, the Registrar
must not return any document or thing under subrule (1) unless the Registrar
has given to the issuing party at least 14 days’ notice of the intention
to do so and that period has expired.
11 Costs
and expenses of compliance
(1) The Court may order the issuing party to pay the
amount of any reasonable loss or expense incurred in complying with the
subpoena.
(2) If an order is made under subrule (1), the Court
must fix the amount or direct that it be fixed in accordance with the Court’s
usual procedure in relation to costs.
(3) An amount fixed under this rule is separate from and
in addition to:
(a) any conduct money paid to the addressee; and
(b) any witness expenses payable to the
addressee.
12 Failure
to comply with subpoena — contempt of court
(1) Failure to comply with a subpoena without lawful
excuse is a contempt of court and the addressee may be dealt with accordingly.
(2) Despite subrule 5 (1), if a subpoena has not
been served personally on the addressee, the addressee may be dealt with for
contempt of court as if the addressee had been so served if it is proved that
the addressee had, by the last date for service of the subpoena, actual
knowledge of the subpoena and of its requirements.
(3) Subrules (1) and (2) are without prejudice to any
power of the Court under any rules of the Court (including any rules of the
Court providing for the arrest of an addressee who defaults in attendance in
accordance with a subpoena) or otherwise, to enforce compliance with a
subpoena.
13 Documents
and things in the custody of a court
(1) A party who seeks production of a document or thing in
the custody of the Court or of another court may inform the Registrar in
writing accordingly, identifying the document or thing.
(2) If the document or thing is in the custody of the
Court, the Registrar must produce the document or thing:
(a) in Court or to any person authorised to take
evidence in the proceeding, as required by the party; or
(b) as the Court directs.
(3) If the document or thing is in the custody of
another court, the Registrar must, unless the Court has otherwise ordered:
(a) request the other court to send the document
or thing to the Registrar; and
(b) after receiving it, produce the document or
thing:
(i) in Court or to any person
authorised to take evidence in the proceeding as required by the party; or
(ii) as the Court directs.
Order 27A Leave to issue subpoena
1 Application
of Order 27A
This Order applies to a subpoena that is to be
issued under Order 27.
2 Leave
to issue subpoena
(1) A subpoena must not be issued without the leave of
the Court or a Judge.
(2) The Court or a Judge may give leave to issue a
subpoena:
(a) generally or in relation to a particular
subpoena or subpoenas; and
(b) subject to conditions.
(3) An application for leave to issue a subpoena may:
(a) be made by a party to a proceeding without
notice to the person who is the subject of the order expressed in
the subpoena (the addressee) or any other party to the
proceeding; and
(b) be decided by the Court or a Judge in the
absence of the addressee or any party to the proceeding.
(4) Subject to subrule (5), the Registrar at the proper
place must, in accordance with the leave given under subrule (2) and on the
request of a party, issue:
(a) a subpoena to attend to give evidence; or
(b) a subpoena to produce the subpoena or a copy
of it and a document or thing; or
(c) a subpoena to do both of those things.
(5) If the Registrar
considers that a request for the issue of a subpoena may be an abuse of the
process of the Court or be frivolous or vexatious, the Registrar may refer the
request to a Judge for directions.
Order 28 Security for costs
1 Interpretation
In this Order:
(a) references to an applicant extend to any
person who makes a claim for relief in any proceedings; and
(b) references to a respondent extend to any
person against whom a claim for relief is made in any proceeding.
2 Application
(1) An application that an applicant shall provide
security for costs shall be made by motion upon notice.
(2) The notice of motion shall be supported by an
affidavit stating the material facts and the grounds upon which security for
costs is sought.
3 Cases
for security
(1) When considering an application by a respondent for
an order for security for costs under section 56 of the Act, the Court may take
into account the following matters:
(a) that an applicant is ordinarily resident
outside Australia;
(b) that an applicant is suing, not for the
applicant’s own benefit, but for the benefit of some other person and the Court
has reason to believe that the applicant will be unable to pay the costs of the
respondent if ordered to do so;
(c) subject to subrule (2), that the
address of the applicant is not stated or is incorrectly stated in the
originating process;
(d) that an applicant has changed address after
the commencement of the proceeding in an attempt to avoid the consequences of
the proceeding.
(2) The Court shall not order an applicant to give
security by reason only of paragraph (1) (c) if it appears to the Court that
the failure to state his address or the mis‑statement of his address was made
without intention to deceive.
4 Manner
of giving security
Where the Court orders an applicant to give
security for costs, the security shall be given in such manner, at such time,
and in such terms (if any), as the Court may by order direct.
5 Stay
or dismissal
(1) Where the Court orders that the applicant provide
security for costs, it may order:
(a) that the proceeding on any claims by the
applicant for relief be stayed until security is provided; or
(b) that if the applicant fails to comply with
the order to provide security within the time limited in the order, the
proceeding be thereafter stayed or dismissed.
(2) Subject to subrule (1), the Court may set aside or
vary any order made under this Order.
(3) Where a proceeding stands dismissed pursuant to an
order under this Order, that order shall not be set aside or varied except in
special circumstances.
6 Saving
This Order does not affect the provisions of any
Act under which the Court may require security for costs to be given.
Order 29 Separate decision of questions: consolidation
Division 1 Separate decision of questions
1 Interpretation
In this Order, question includes any
question or issue in any proceeding, whether of fact or law or partly of fact
and partly of law, and whether raised by pleadings, agreement of parties or
otherwise.
2 Order
for decision
The Court may make orders for:
(a) the decision of any question separately from
any other question, whether before, at or after any trial or further trial in
the proceedings; and
(b) the statement of a case and the question for
decision.
3 Orders,
directions upon decision
Where any question is decided under this Order, the
Court shall, subject to rule 4, make such order, grant such relief or give such
directions as the nature of the case requires.
4 Disposal
of proceedings
Where the decision of a question under this Order:
(a) substantially disposes of the proceeding or
of the whole or any part of any claim for relief in the proceeding; or
(b) renders
unnecessary any trial or further trial in the proceeding or on the whole or any
part of any claim for relief in the proceeding;
the Court may, as the nature of the case requires:
(c) dismiss the proceeding or the whole or any
part of any claim for relief in the proceeding; or
(d) pronounce any judgment; or
(e) make any other order.
Division 2 Consolidation
5 Consolidation
etc
Where several proceedings are pending in the Court,
then, if it appears to the Court:
(a) that some common question of law or fact
arises in both or all of them;
(b) that the rights to relief claimed therein are
in respect of, or arise out of, the same transaction or series of transactions;
or
(c) that for some other reason it is desirable
to make an order under this rule;
the Court may order those proceedings to be consolidated or may
order them to be tried at the same time or one immediately after another or may
order them to be stayed until after the determination of any of them.
Order 30 Setting down
Note Order
35A deals with the procedure on default.
1 Interpretation
(1) In this Order:
applicant includes a plaintiff.
respondent includes a defendant.
(2) In this Order:
(a) a reference to the trial of a proceeding
includes any interlocutory hearing for which a date for trial is required to be
fixed in the proceeding; and
(b) the Rules apply, with any necessary
modification, to proceedings commenced by way of cross‑claim.
2 Request
to fix date for trial (Form 44)
(1) If the time provided for taking any step in a
proceeding has ceased to run, and no date has been fixed for the trial of the
proceeding, a party who is not in default may request the Registrar to fix a
date for the trial by filing a notice in accordance with Form 44 in Schedule 1.
(2) The party filing notice must serve a copy of the
notice on all other parties to the proceeding within 3 days after filing it.
3 Fixing
date for trial
Where the Court or the Registrar is satisfied that
a proceeding is ready for trial and fixes a date for trial, the Registrar must
notify the date and place of the trial to all parties to the proceeding as soon
as practicable after the date is fixed.
4 Notice
of date for trial (Form 44A)
Within 7 days after being notified of the date for
trial, the party who requested that the date be fixed or, if no request was
made, the applicant, must:
(a) file in the Registry a notice in accordance
with Form 44A; and
(b) serve a copy of the notice on all other
parties to the proceeding.
Note See Part 2 of the Federal Court
of Australia Regulations 2004 in relation to setting‑down fees.
6 Place
of trial
(1) Subject to subrule (2), the place of trial of a
proceeding is to be the proper place.
(2) The Court may direct that the trial, or part of the
trial, of a proceeding be held at a place other than the proper place.
7 Vacating
date for trial
A date for trial fixed by the Court may be vacated
only by order of the Court.
Order 31 Juries
1 Notice
of motion for jury trial
(1) A party applying for an order that the trial of a
suit or of an issue of fact be heard by a Judge and jury shall file and serve
notice of his motion not later than 21 days before the date appointed for the
trial.
(2) A notice of motion under subrule (1) shall be
supported by an affidavit stating the particular facts and grounds upon which
the application is based.
Order 32 Trial
1 Interpretation
For the purposes of this Order:
(a) where the burden of proof on any issue lies
on the applicant, he shall begin; and
(b) where the burden of proof on all the issues
lies on the respondent, he shall begin.
2 Absence
of party
(1) If, when a proceeding is called on for trial, any
party is absent, the Court may:
(a) order that the trial be not had unless the
proceeding is again set down for trial, or unless such other steps are taken as
the Court may direct;
(b) adjourn the trial;
(c) if the party absent is an applicant or cross‑claimant
dismiss the action or the cross‑claim; or
(d) proceed with the trial generally or so far as
concerns any claim for relief in the proceeding.
(2) Where the Court proceeds with a trial in the absence
of a party, and at or at the conclusion of the trial an order is made, the
Court may set aside or vary the order, and may give directions for the further
conduct of the proceeding.
(3) Subrule (2) does not enable the Court to vary the
verdict, finding or assessment of a jury at a trial except with the consent of
each interested party present at the trial.
3 Default
of appearance of both parties
(1) If, when a proceeding is called on for trial, no
party appears, the Court may:
(a) adjourn the proceeding to a specific date or
generally; or
(b) order that the proceeding be struck out.
(2) Where an order is made under paragraph (1) (b) the
proceeding shall thereupon, unless the Court otherwise orders, be wholly
discontinued, and neither party shall be entitled to costs.
4 Conduct
of the trial
(1) The Court may give directions as to the order of
evidence and addresses and generally as to the conduct of the trial.
(2) Subject to subrule (1):
(a) where the only parties are the applicant and
persons in the same interest and the respondent and persons in the same
interest, and there is no cross‑claim, the order of evidence and addresses
shall be as provided by the following subrules of this rule; and
(b) in any other case, the order of evidence and
addresses shall be as provided by the following subrules of this rule, subject
to such modifications as the nature of the case may require.
(3) The party to begin may make an address opening his
case and may then adduce his evidence.
(4) Where, at the conclusion of the evidence for the
party to begin, no document or thing has been admitted in evidence on tender by
the opposite party, the opposite party may elect to adduce evidence or not to
adduce evidence.
(5) If, pursuant to subrule (4), the opposite party
elects not to adduce evidence, the party to begin may make an address closing
his case and then the opposite party may make an address stating his case.
(6) If, pursuant to subrule (4), the opposite party
elects to adduce evidence, the opposite party may make an opening address
before adducing his evidence and after adducing his evidence he may make an
address closing his case and thereupon the party to begin may make an address
closing his case.
4A Limitation
on time etc to be taken for trial
(1) At any time before or during a trial, the Court or a
Judge may make a direction limiting:
(a) the time for examining, cross‑examining or
re‑examining a witness; or
(b) the number of witnesses (including expert
witnesses) that a party may call; or
(c) the time for making any oral submissions; or
(d) the time for a party to present the party’s
case; or
(e) the time to hear the trial.
(2) The Court or Judge may amend a direction made under
this rule.
5 Record
(1) The associate, or other proper officer present at
the trial, shall be clerk at the trial and shall maintain and complete a record
of the trial.
(2) The associate or other proper officer shall:
(a) take charge of every document or object put
in as an exhibit during the trial or hearing of a proceeding;
(b) mark or label every exhibit so as to indicate
the party by whom the exhibit was put in, and so that all exhibits put in by a
party are lettered or numbered consecutively; and
(c) make a list of the exhibits.
(3) The list of exhibits when completed shall form part
of the record of the proceeding.
6 Death
before judgment
(1) Where a party dies after the verdict or finding on
the issues of fact, the Court may pronounce judgment, and the order of the
judgment may be entered, notwithstanding the death.
(2) Subrule (1) does not affect the power of the Court
to make orders under Order 6, rule 10 (which relates to change of parties by
reason of death, etc.).
Order 33 Evidence: general
1 Witnesses
at a trial
Unless the Court otherwise orders or the parties
otherwise agree, the evidence of a witness at the trial of a cause shall be
given orally.
4 Depositions
(1) Subject to this Order and to any order of the Court,
a deposition not taken in the proceedings pursuant to Order 24 is not
admissible as evidence.
(2) A deposition taken in the proceedings pursuant to
Order 24, is admissible as evidence, but the Court may direct that the
deposition be not admissible unless the party tendering it produces the
deponent for cross‑examination.
(3) This rule does not apply to evidence taken pursuant
to an order made under subsection 7 (1) of the Foreign Evidence Act 1994 or
a record of that evidence.
5 Evidence
in other proceedings
(1) A party may, with the leave of the Court, but saving
all just exceptions, read evidence taken, or an affidavit filed, in other
proceedings.
(2) Subrule (1) does not enable evidence taken, or an
affidavit filed, in other proceedings to be read as evidence on any issue at a
trial, except in relation to the proof of particular facts.
6 Plans,
photographs and models
(1) Where a party intends to tender any plan, photograph
or model at a trial or hearing, he shall, not less than 7 days before the
commencement of the trial or hearing, give the other parties an opportunity to
inspect it and to agree to its admission without proof.
(2) Non‑compliance with subrule (1) shall not affect the
admissibility of a plan, photograph or model.
8 Production
of court documents
Where, for the purpose of any proceedings, a
person, by request in writing, requires a Registrar to produce to the Court or
to a Judge or an officer of the Court any document in the custody of the
Registrar, the Registrar shall, unless the Court otherwise orders, produce the
document in accordance with the request.
9 Consent
of trustee etc
(1) A document purporting to contain the written consent
of a person to act as tutor of a person under disability, to act as trustee, to
act as receiver, or to act in any other office on appointment by the Court, and
purporting to be executed and authenticated in accordance with subrule (2), is
evidence of the consent.
(2) A document is sufficiently executed and
authenticated for the purposes of subrule (1):
(a) where the consenting person is not a
corporation, if the document is signed by the consenting person and the
signature is verified by some other person; or
(b) where the consenting person is a corporation,
if the seal of the corporation is affixed to the document in the presence of
and attested by its clerk, secretary or other permanent officer or his deputy,
and a member of the board of directors, council or other governing body of the
corporation.
10 Leading
questions to witness
Where a person is examined in relation to an
investigation, inspection or report made by him in the course of carrying out
public or official duties, the party calling the person may, unless the Court
otherwise directs, examine that person by asking him leading questions.
11 Privilege
(1) Where the Court, by subpoena or otherwise, orders
any person to produce any document or thing, and any person makes and
substantiates sufficient lawful objection to production on grounds of
privilege, the Court shall not compel production of that document or thing
except production to the Court for the purpose of ruling on the objection.
(2) Where a question is put to a person in the course of
examination, and any person makes and substantiates sufficient lawful objection
on grounds of privilege to the question being answered, the Court shall not
compel an answer to the question.
(3) Subrule (1) applies only if an order is made for
production to the Court or any officer of the Court, or any examiner, or other
person authorised to receive evidence, on a trial or hearing or other occasion
on which evidence is being adduced.
(3A) Subrule (2) applies only if a question is put to a
person in the course of examination before the Court or any officer of the
Court, or any examiner, or other person authorised to receive evidence, on a
trial or hearing or other occasion on which evidence is being adduced.
(4) This rule does not affect any rule of law which
authorizes or requires the withholding of any document or thing or the refusal
to answer any question on the ground that the disclosure of the document or
thing or the answering of the question would be injurious to the public
interest.
(5) In this rule:
ground of privilege means a ground on which a
person may rely to make an objection under Part 3.10 of the Evidence Act
1995.
12 Production
on notice — Form 45
(1) Where a party to any proceedings serves on another
party notice, in accordance with Form 45, requiring the party served to produce
at any trial or hearing in the proceedings, or before any Judge, officer, examiner
or other person having authority to take evidence in the proceedings any
document or thing for the purpose of evidence and the document or thing is in
the possession, custody or power of the party served, the party served shall,
unless the Court otherwise orders, produce the document or thing in accordance
with the notice, without the need for any subpoena for production.
(2) Where the document or thing required to be produced
in accordance with subrule (1) is not produced, the party serving the notice
may lead secondary evidence of the contents or nature of the document or thing.
(3) Subrule (2) does not affect the power of the Court
to order costs against a party who fails to comply with a notice under subrule
(1).
13 Attendance
and production
(1) The Court may make orders for:
(a) the attendance of any person for the purpose
of being examined; or
(b) the attendance of any person and production
by him of any document or thing specified or described in the order.
(2) An order under subrule (1) may be made for the
attendance of any person before, and production by him to, the Court or any
officer of the Court, examiner, or other person authorized to take evidence, on
any trial, hearing or other occasion.
(3) Subrules (1) and (2) apply whether or not the person
for whose attendance the order is made has been required to attend by subpoena.
14 Attendance
of prisoner in proceedings before Court or examiner
(1) A party requiring the production of a prisoner from
lawful custody to give evidence in proceedings whether before the Court or
before an examiner under Order 24, must move for an order to that effect.
(2) A motion under subrule (1) may be made ex parte and
must be supported by an affidavit showing:
(a) the person in whose custody the prisoner is
held; and
(b) the reasons for which the prisoner’s evidence
and attendance are required.
(3) An order under subrule (1) must be in accordance
with Form 46 in Schedule 1.
15 Parties
in lawful custody
(1) If a party to a proceeding before the Court is in
lawful custody, the Court may:
(a) make an order requiring production of the
party; and
(b) make an order in relation to the continuing
custody of the party that the Court considers appropriate.
(2) An order made under subrule (1) may if the Court thinks
it appropriate be in accordance with Form 46B in Schedule 1.
16 Notice
of intention to adduce evidence of previous representation — Form 144
(1) This rule is made for the purposes of section 67 of
the Evidence Act 1995.
(2) In this rule, notice of intention to adduce
evidence of previous representation means a notice given under
subsection 67 (1) of the Evidence Act 1995.
(3) A notice of intention to adduce evidence of previous
representation:
(a) must be in accordance with Form 144; and
(b) may have attached to it an affidavit that
sets out evidence of the previous representation.
(4) Compliance with paragraph (3) (a) may be
dispensed with, in whole or in part, if the Court is satisfied, having regard
to all the circumstances, including any affidavit that has been served, that
the purpose of the paragraph has been satisfied.
17 Notice
of objection to tender of hearsay evidence if maker available — Form 145
(1) This rule is made for the purposes of section 68 of
the Evidence Act 1995.
(2) In this rule, notice of objection to tender of
hearsay evidence if maker available means a notice given under
subsection 68 (2) of the Evidence Act 1995.
(3) A notice of objection to tender of hearsay evidence
if maker available must be in accordance with Form 145.
(4) Compliance with subrule (3) may be dispensed with,
in whole or in part, if the Court is satisfied, having regard to all the
circumstances, including any affidavit that has been served, that the purpose
of the subrule has been satisfied.
18 Notice
of intention to adduce tendency evidence — Form 146
(1) This rule is made for the purposes of section
99 of the Evidence Act 1995.
(2) In this rule, notice of intention to
adduce tendency evidence means a notice given under subsection
97 (1) of the Evidence Act 1995.
(3) A notice of intention to adduce tendency
evidence must be in accordance with Form 146.
(4) Compliance with subrule (3) may be dispensed
with, in whole or in part, if the Court is satisfied, having regard to all the
circumstances, including any affidavit that has been served, that the purpose
of the subrule has been satisfied.
19 Notice
of intention to adduce coincidence evidence — Form 147
(1) This rule is made for the purposes of section 99 of
the Evidence Act 1995.
(2) In this rule, notice of intention to adduce
coincidence evidence means a notice given under subsection 98 (1)
of the Evidence Act 1995.
(3) A notice of intention to adduce coincidence evidence
must be in accordance with Form 147.
(4) Compliance with subrule (3) may be dispensed with,
in whole or in part, if the Court is satisfied, having regard to all the
circumstances, including any affidavit that has been served, that the purpose
of the subrule has been satisfied.
20 Form
of expert report
(1) In this rule:
expert, in relation to a question, means a
person who has specialised knowledge about matters relevant to the question
based on that person’s training, study or experience.
expert report means a document prepared by an
expert that sets out the expert’s opinion on each question referred to the
expert.
(2) The body of an expert report must be divided into
paragraphs numbered consecutively, each paragraph being as far as possible
confined to a distinct part of the subject.
(3) Each page of an expert report, including any
annexure, must be numbered legibly and distinctively, beginning on the first
page of the report with the numeral ‘1’.
(4) Each annexure to an expert report must be identified
sequentially on the first page of each annexure by a letter of the alphabet,
beginning with the letter ‘A’ for the first annexure.
(5) The full name of the author of the expert report and
the date on which the report was prepared must appear on the first visible page
of the report (being the first page, cover page or front cover page, as the
case may be).
(6) Non‑compliance with this rule does not affect the
admissibility of an expert report.
Order 34 Court expert
1 Application
This Part does not apply to a question or matter to
be tried before a jury.
1A Definition
In this Order:
expert, in relation to a question, means a
person who has specialised knowledge about matters relevant to the question
based on that person’s training, study or experience.
2 Appointment
(1) If a question for an expert witness arises in a proceeding,
the Court may, at any stage of the proceeding:
(a) appoint an expert as court expert to inquire
into and report upon the question;
(b) authorize the court expert to inquire into
and report upon any facts relevant to the inquiry and report on the question;
(c) direct the court expert to make a further or
supplemental report or inquiry and report; and
(d) give such instructions as the Court thinks
fit relating to any inquiry or report of the court expert.
(3) Instructions pursuant to paragraph (1) (d) may
include provision concerning any experiment or test for the purposes of any
inquiry or report of a court expert.
3 Report
(1) The court expert shall send his report to the
Registrar, together with so many copies of the report as the Court may direct.
(2) The Registrar shall send a copy of the report to
each party interested in the question.
(3) The report shall, unless the Court otherwise orders,
be admissible in evidence on the question on which it is made, but shall not be
binding on any party except to the extent to which that party agrees to be
bound by it.
4 Cross‑examination
Upon application made by any party within 14 days
after receiving a copy of a court expert’s report, the Court shall make an
order for the cross‑examination of the court expert by all the parties, either:
(a) before the Court, at the trial or at some
other time; or
(b) before an examiner.
5 Remuneration
(1) The remuneration of the court expert must be fixed
by the Court and must include:
(a) a fee for the expert’s report; and
(b) a proper sum for each day on which the expert
is required to attend before the Court or an examiner.
(2) Unless the Court otherwise orders, the parties shall
be jointly and severally liable to the court expert to pay the amount fixed by
the Court for his remuneration.
(3) The Court may make orders in the proceeding for
payment in or towards discharge of the liability of any party under
subrule (2).
(4) Subrules (2) and (3) do not affect the powers of the
Court as to costs.
6 Further
expert evidence
Where, pursuant to this Order, a court expert has
made a report on any question:
(a) any party may adduce evidence of one other
expert on the same question, but only if he has, at a reasonable time before
the commencement of the trial, hearing or examination at which he adduces the
evidence, given to the other interested parties notice of his intention to do
so; but
(b) subject to paragraph (a), a party shall not
adduce evidence of any other expert on the same question, except with the leave
of the Court.
Order 34A Evidence of expert witnesses
1 Application
This order does not apply to a question or matter
to be tried before a jury.
2 Definitions
In this order:
expert witness means a person who is called,
or is to be called, by a party to give opinion evidence, based on the person’s
specialised knowledge, based on the person’s training, study or experience.
3 Evidence
by expert witnesses
(1) This rule applies if 2 or more parties to a
proceeding call, or intend to call, expert witnesses to give opinion evidence
about the same, or a similar, question.
(2) The Court or a Judge may direct:
(a) that the expert witnesses confer; or
(b) that the expert witnesses produce for use by
the Court a document identifying:
(i) the matters and issues about which
their opinions are in agreement; and
(ii) the matters and issues about which
their opinions differ; or
(c) that:
(i) the expert witnesses give evidence
at trial after all or certain factual evidence relevant to the question has been
led; and
(ii) each party intending to call 1 or
more expert witnesses close that party’s case in relation to the question,
subject only to adducing the evidence of the expert witnesses later in the
trial; or
(d) that, after all or certain factual evidence
has been led, each expert witness file and serve an affidavit or statement
indicating:
(i) whether the expert witness adheres
to any opinion earlier given; or
(ii) whether, in the light of factual
evidence led at trial, the expert witness wishes to modify any opinion earlier
given; or
(e) that:
(i) each expert witness be sworn one
immediately after another; and
(ii) when giving evidence, an expert
witness occupy a position in the courtroom (not necessarily in the witness box)
that is appropriate to the giving of evidence; or
(f) that each expert witness give an oral
exposition of his or her opinion, or opinions, on the question; or
(g) that each expert witness give his or her
opinion about the opinion, or opinions, given by another expert witness; or
(h) that the expert witnesses be cross‑examined
in a certain manner or sequence; or
(i) that cross‑examination, or re‑examination,
of the expert witnesses be conducted:
(i) by completing the cross‑examination
or re‑examination of an expert witness before starting the cross‑examination or
re‑examination of another; or
(ii) by putting to each expert witness,
in turn, each question relevant to one subject or issue at a time, until the
cross‑examination or re‑examination of all the witnesses is completed.
Order 34B Expert assistant
1 Application
This order does not apply to a question or matter
to be tried before a jury.
2 Appointment
of expert assistant
(1) The Court or a Judge may, at any stage of a
proceeding and with the consent of the parties, appoint an expert as an expert
assistant to assist the Court on any issue of fact or opinion
identified by the Court or Judge (other than an issue involving a question of
law) in the proceeding.
(2) A person who has given evidence, or whom a party intends
to call to give evidence, in the proceeding must not be appointed as an expert
assistant in the proceeding.
(3) For this rule, expert means a person
who has specialised knowledge based on the person’s training, study or
experience.
3 Assistance
to be given
(1) An expert assistant in a proceeding must give the
Court a written report on the issues identified by the Court or Judge only.
(2) However, at the direction of the Court or a Judge
and with the consent of the parties, the expert assistant may assist the Court
by making other comments in the report.
(3) The expert assistant must:
(a) state in the report each issue identified by
the Court or Judge; and
(b) give a copy of the report to each party.
(4) The Court must give each party a reasonable
opportunity to comment on the report and may allow a party to adduce evidence,
or further evidence, in relation to an issue identified, but not to examine or
cross‑examine the expert assistant.
(5) A party must not communicate, directly or indirectly,
with the expert assistant about any issue to be reported on, without the leave
of the Court or a Judge.
(6) The expert assistant must not give evidence in the
proceeding.
4 Remuneration
of expert assistant
The Court may make an order for the payment of an
amount for the reasonable remuneration and expenses of an expert assistant,
including an order that the amount be paid by 2 or more parties jointly.
Order 35 Judgments and orders
1 General
relief
The Court may, at any stage of any proceedings, on
the application of any party, pronounce such judgment or make such order as the
nature of the case requires, notwithstanding that the applicant does not make a
claim for relief extending to that order in any originating process.
2 Written
reasons
The reasons of the Court for any order may, if in
written form, be published by being delivered in open Court to an associate or
other proper officer.
3 Date
of effect
A judgment or order shall take effect on the date
on which it is pronounced or made, unless the Court orders that it take effect
at an earlier or later date.
4 Time
for compliance
(1) Subject to subrules (3) and (4), an order which
requires a person to do an act shall specify the time within which he is
required to do the act.
(2) The time shall, unless the Court otherwise orders,
be 14 days after the date of service of the order on the person required to do
the act.
(3) Subrules (1) and (2) apply to an order which
requires a person to pay money into Court, but otherwise do not apply to so much
of an order as requires a person to pay money.
(4) Where an order requires a person to do an act within
a specified time, the Court may, by order, require him to do the act within
another specified time.
(5) Where an order requires a person to do an act but
does not specify a time within which he is required to do the act, the Court
may, by order, require him to do the act within a specified time.
5 Fine
(1) Where the Court imposes a fine, the Court shall
order that the person on whom the fine is imposed pay the fine to the Registrar
and specify the time within which he is required to pay it.
(2) The Registrar shall pay into the Consolidated
Revenue Fund all moneys paid to him on account of any fine imposed by the
Court.
(3) This rule does not apply to a fine imposed
under the Workplace Relations Act 1996.
6 Dismissal
(1) Where the Court makes an order for the dismissal of
proceedings or for the dismissal of proceedings so far as concerns any cause of
action or the whole or any part of any claim for relief, the Court may order
that such dismissal shall be without prejudice to any right of the applicant or
claimant to bring fresh proceedings or to claim the same relief in fresh
proceedings.
(2) Where:
(a) the Court makes an order for the dismissal of
proceedings so far as concerns any cause of action or the whole or any part of
any claim for relief by any party;
(b) the Court orders that party to pay any costs;
and
(c) before payment of the costs, that party
brings against a party to whom the costs are payable further proceedings on the
same or substantially the same cause of action or for the same or substantially
the same relief;
the Court may stay the further proceedings until those costs are
paid.
7 Setting
aside
(1) The Court may vary or set aside a judgment or order
before it has been entered.
(2) The Court, where it is not exercising its appellate
or related jurisdiction under Division 2 of Part III of the Act, may if it
thinks fit vary or set aside a judgment or order after the order has been
entered where:
(a) the order has been made in the absence of a
party, whether or not the absent party is in default of appearance or otherwise
in default and whether or not the absent party had notice of the motion for the
order;
(b) the order was obtained by fraud;
(c) the order is interlocutory;
(d) the order is an injunction or for the
appointment of a receiver;
(e) the order does not reflect the intention of
the Court; or
(f) the party in whose favour the order was made
consents.
(3) A clerical mistake in a judgment or order, or an
error arising in a judgment order from an accidental slip or omission, may at
any time be corrected by the Court.
(4) Subrule (2) shall not affect the power of the Court
to vary or terminate the operation of an order by a supplementary order.
7A Interest
up to judgment
If determining a rate of
interest for an order under paragraph 51A (1) (a) of the Act, the
Court or a Judge may fix the rate as:
(a) the cash rate of interest set by the Reserve
Bank of Australia from time to time during the period mentioned in paragraph
51A (1) (a) of the Act, plus 4 per cent; or
(b) such other rate as the Court or Judge thinks
fit.
8 Interest
on judgment
A judgment debt carries interest at the rate of
10.5% per year unless, in a particular case, the Court determines that justice
requires that a lower rate should be applicable.
9 Judicial
notice of order
(1) In any proceedings, the Court may take judicial
notice of any order of the Court in the proceedings.
(2) In any proceedings, the Court may be informed of an
order of the Court in the proceedings by (amongst other things) reference to a
note made by the Judge making the order or by an associate or other proper
officer.
10 Consent
orders by filing in a Registry
(1) A written consent of the parties to a proceeding, or
of the legal practitioners on the record as representing the parties, to the
making of an order in the proceeding may be filed in the Registry at the proper
place.
(2) Despite anything contained in these Rules:
(a) if a written consent is filed, unless
paragraph (b) applies, the Registrar must bring the matter before a Judge
who, without any other application being made, may:
(i) make an order in accordance with
rule 10A; or
(ii) direct the Registrar, or an officer
acting with the authority of the Registrar, to draw up, sign and affix
the stamp of the Court to an order in accordance with the terms of the consent.
(b) if the written consent is in respect of an
order that the Registrar has power to make, unless the Registrar is of the
opinion that the consent should be brought before a Judge, the Registrar, or an
officer acting with the authority of the Registrar, may draw up, sign and affix
the stamp of the Court to an order in accordance with the terms of consent.
(3) The order shall state that it is made by consent and
shall be of the same force and validity as if it had been made after a hearing
by the Judge.
10A Consent
orders
(1) A Judge may make an order in accordance with the
terms of a written consent of the parties to a proceeding, or of the legal
practitioners on the record as representing the parties, by initialling or
otherwise annotating the written consent and placing it on the Court file.
(2) The order must state
that it is made by consent.
(3) The order is of the same force and validity as if it
had been made after a hearing by the Judge.
11 Undertakings
(1) Where:
(a) a person (whether a party or not) gives an
undertaking to the Court to do or refrain from doing any act or to pay any sum
of money; and
(b) the person fails to fulfil the undertaking;
any party may move on notice for a judgment or order requiring that
person to do or refrain from doing the act in question, or to pay the sum of
money in question.
(2) The Court, on being satisfied that the undertaking
was binding on the person, shall make the order referred to in subrule (1).
(3) The Court may be informed of an undertaking to the
Court in the proceedings by (amongst other things) reference to a note made by
the Judge hearing the proceedings or by his clerk.
(4) This rule does not affect the powers of the Court to
punish a person for contempt.
Order 35A Order or judgment on default
1 Definitions
In this Order:
applicant includes a cross‑claimant.
claim includes a cross‑claim.
respondent includes a cross‑respondent.
2 When
a party is in default
(1) For this Order, an applicant is in default if the
applicant:
(a) fails to comply with an order of the Court
in the proceeding; or
(b) fails to attend a directions hearing; or
(c) fails to file and serve a pleading as
required by Order 11; or
(d) fails to serve a list of documents or an
affidavit or other document, or does not produce a document as required by
Order 15; or
(e) fails
to do any act required to be done by these Rules; or
(f) fails to prosecute the proceeding with due
diligence.
(2) For this Order, a
respondent is in default if the respondent has not satisfied the applicant’s
claim and:
(a) the time for the respondent to enter an
appearance has expired and the respondent has failed to enter an appearance; or
(b) the time for the respondent to file a defence
has expired and the respondent has failed to file a defence; or
(c) the respondent fails to attend a directions
hearing; or
(d) the respondent fails to comply with an order
of the Court in the proceeding; or
(e) the respondent fails to file and serve a
pleading as required by Order 11; or
(f) the respondent fails to serve a list of
documents or an affidavit or other document, or does not produce a document as
required by Order 15; or
(g) the respondent fails to do any act required
to be done by these Rules; or
(h) the respondent fails to defend the proceeding
with due diligence.
3 Orders
on default
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to
the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the
time limited in the order; or
(c) the proceeding be stayed or dismissed, as to
the whole or any part of the relief claimed by the applicant, if the applicant
does not take a step ordered by the Court in the proceeding in the time limited
in the order.
(2) If a respondent is in default, the Court may:
(a) order that a step in the proceeding be taken
within the time limited in the order; or
(b) if the claim
against the respondent is for a debt or liquidated damages — grant leave
to the applicant to enter judgment against the respondent for the debt or
liquidated damages and, if appropriate:
(i) costs:
(A) in a sum fixed by the
court; or
(B) to be taxed; and
(ii) interest; or
(c) if the proceeding was commenced by an
application supported by a statement of claim or the Court has ordered that the
proceeding continue on pleadings — give judgment against the respondent
for the relief that:
(i) the applicant appears entitled to
on the statement of claim; and
(ii) the Court is satisfied it has
power to grant; or
(d) give judgment or make any other order against
the respondent; or
(e) make an order specified in paragraph (b),
(c) or (d) to take effect if the respondent does not take a step ordered by the
Court in the proceeding in the time limited in the order.
(3) If leave has been granted under paragraph (2) (b)
and the applicant has filed in the Registry:
(a) an affidavit, or affidavits, proving:
(i) service of the application
claiming judgment for the debt or liquidated damages; and
(ii) that the respondent is in default;
and
(b) an affidavit in respect of the debt or
liquidated damages in accordance with Form 46C;
the Registrar must enter judgment for the debt or liquidated
damages, costs and interest against the respondent as specified in the leave
given under paragraph (2) (b), without giving notice, or further notice,
to the respondent.
(4) Unless the Court otherwise orders, if a respondent
to a cross‑claim is in default, a judgment (including a judgment by default or
by consent), or decision (including a decision by consent), on any claim,
question or issue in the proceeding on the originating process, or any other
cross‑claim in the proceeding, is binding as between the cross‑claimant and the
respondent to the cross‑claim so far as the judgment or decision is relevant to
any claim, question or issue in the proceeding on the cross‑claim.
(5) The Court may make an
order of the kind mentioned in subrule (1), (2) or (4), or any other
order, or may give such directions, and specify such consequences for non‑compliance
with the order, as the Court thinks just.
Note An order or judgment under this
Order may be set aside or varied under Order 35 rule 7.
4 Contempt
This Order does not limit the power of the Court to
punish for contempt.
Order 36 Entry of orders
1 Definition
For rules 3 and 7 of this Order:
Registrar includes an officer acting with the
authority of the Registrar.
2 When
entry is required
(1) Subject to subrule (2), an order must be
entered if:
(a) the order is to be served; or
(b) the order is to be enforced; or
(c) an appeal from the order has been instituted,
or an application for leave to appeal from the order has been made; or
(d) a step is to be taken under the order; or
(e) the Court directs that the order be entered.
(2) An order need not be entered if, in addition to any
provision as to costs, the order merely:
(a) extends or abridges time; or
(b) grants leave or makes a direction:
(i) to amend a document (other than an
order); or
(ii) to file a document; or
(iii) for an act to be done by an
officer of the Court (within the meaning of section 18N of the Act); or
(c) gives directions about the conduct of a
proceeding.
3 Entry
of an order
(1) An order may be entered in accordance with subrule
(2) or rule 5.
(2) A Registrar may enter an order by authenticating the
order in accordance with subrule 7 (1) if:
(a) the order has been settled in accordance
with rule 4; and
(b) the Court or a Judge directs, or a party
requests, that the order be entered.
4 Lodgment
of orders for entry
(1) If a party wishes to have an order entered, the
party may lodge with the Registrar a draft of the order, in accordance with
Form 47.
(2) An order may be settled by the Court or a Judge, or
a Registrar, even if no draft of the order has been lodged under
subrule (1).
(3) The Court or a Judge may give directions to a
Registrar who is settling an order under this rule.
5 Courtroom
entry
The Court or a Judge may direct that an order be
entered by the order being authenticated in Court in accordance with
subrule 7 (1) at the time the order is made.
6 Date
of effect
Unless the Court otherwise orders, the date as of
which an order is entered is the date when the order was made.
7 Authentication
of orders
(1) An order is authenticated by:
(a) the Court or a Judge, or a Registrar signing
the order; and
(b) the Court or a Judge, or a person at the
direction of the Court or a Judge, or a Registrar, affixing the stamp of the
Court to the order.
(2) On request by a party to a proceeding, the Registrar
must give a copy of an authenticated order in the proceeding to the party.
(3) The Registrar may
give a copy of an authenticated order in the proceeding to any person who:
(a) appears to have a sufficient interest in the
proceeding; and
(b) pays the prescribed fee (if any).
8 Service
of orders
Unless these Rules otherwise provide or the Court
otherwise directs, an order need not be served.
9 Certificate of judgment
On request by a judgment creditor, the Registrar
must give to the creditor a certificate in accordance with Form 47A setting out
the particulars of the judgment.
Order 37 Judgments and orders: enforcement
1 Attendance
(1) Where the Court by subpoena or otherwise, makes an
order in any proceedings for the attendance of a person:
(a) for the purpose of giving evidence;
(b) for the production of any document or thing;
(c) to answer a charge of contempt; or
(d) for any other purpose;
and the person defaults in attendance in accordance with the order,
the Court may:
(e) issue, or make an order for the issue of, a
warrant to the Sheriff or such other person as the Court may appoint for the
arrest of the person in default and for the production of the person in default
before the Court or before an examiner or other person for the purpose of the
proceedings and for the detention in custody of the person in default in the
meantime; and
(f) order the person in default to pay any costs
occasioned by the default.
(2) Subrule (1) does not affect:
(a) the powers of the Court to punish for the
contempt;
(b) the provisions of Order 40 (which relates to
contempt); or
2 Service
before committal or sequestration
(1) Subject to the Rules, an order shall not be enforced
by committal or sequestration unless:
(a) the order or a certified or office copy
thereof is served personally on the person bound; and
(b) if the order requires the person bound to do
an act within a specified time, the order or a certified or office copy thereof
is so served before that time expires.
(2) Subject to the Rules, where the person bound by an
order is a corporation or organisation the order shall not be enforced by
committal of an officer of the person bound or by sequestration of the property
of an officer of the person bound unless, in addition to service under subrule
(1) on the person bound:
(a) the order or a certified or office copy
thereof is served personally on the officer; and
(b) if the order requires the person bound to do
an act within a specified time, the order or a certified or office copy thereof
is so served before that time expires.
(3) An order or a certified or office copy thereof
served under this rule must bear a notice (naming the persons concerned) that
the person served is liable to imprisonment or to sequestration of property if:
(a) where the order requires the person bound to
do an act within a specified time, the person bound refuses or neglects to do
the act within that time; or
(b) where the order requires the person bound to
abstain from doing an act, the person bound disobeys the order.
(4) Subject to the Rules, where:
(a) an order requires the person bound to do an
act; and
(b) another order specifies the time in which the
act is required to be done;
each order or a certified or office copy thereof shall be served on
the person bound before the expiry of that time as so abridged or extended.
(5) Where a person liable to committal or sequestration
of his property by way of enforcement of a judgment or order has notice of the
judgment or order:
(a) by being present when the judgment is
pronounced or when the order is made; or
(b) by being
notified of the terms of the judgment or order whether by telephone, telegram
or otherwise;
the judgment or order may be enforced by committal of that person
or by sequestration of his property notwithstanding that service has not been
effected in accordance with this rule.
(6) The Court may dispense with service under this rule.
3 Substituted
performance
(1) Where a judgment or order requires the person bound
to do an act and the person bound does not do the act, the Court may:
(a) direct that the act be done by a person
appointed by the Court; and
(b) order the person bound to pay the costs
incurred pursuant to the direction.
(2) Subrule (1) does not affect any other mode of
enforcement of the judgment or order, or the powers of the Court to punish for
contempt.
4 Enforcements
by or against non‑party
(1) Where, in any proceeding, a person who is not a
party obtains an order, or an order is made in favour of a person who is not a
party, he may enforce the order by the same means as if he were a party.
(2) Where, in any proceeding, obedience to a judgment
may be enforced against a person who is not a party, the judgment may be
enforced against him by the same means as if he were a party.
(3) Where, in any proceeding, obedience to a judgment
may be enforced against a corporation or organisation which is not a party, an
officer of the corporation or organisation shall be liable to the same process
of enforcement as if the corporation or organisation were a party.
5 Non‑performance
of condition
Where a person is entitled under a judgment subject
to the fulfilment of a condition, and there is a failure to fulfil the
condition, then, unless the Court otherwise orders:
(a) he shall lose the benefit of the judgment;
and
(b) any other person interested may take any steps
which:
(i) are warranted by the judgment; or
(ii) might have been taken if the
judgment had not been pronounced or the order had not been made.
6 Matters
occurring after judgment
(1) A person bound by a judgment may move the Court for
a stay of execution of the judgment, or for some other order, on the ground of
matters occurring after the date on which the judgment takes effect and the
Court may make such order as the nature of the case requires.
(2) Subrule (1) does not affect the powers of the Court
to stay execution under rule 10.
7 Enforcement
as in State and Territory Supreme Courts
(1) Subject to the Rules, and without limiting any other
means of enforcement which may be available, the Court may, in order to enforce
a judgment or order of the Court, make any order, issue any writ or take any
other step that could be made, issued or taken, by the Supreme Court of the
State or Territory in which the judgment or order is to be enforced if the
judgment or order had been made by that Supreme Court.
(2) The modes of procedure and forms of process of the
Supreme Court of the State or Territory in which the judgment or order is
sought to be enforced shall be available and followed in the Court so far as is
practicable mutatis mutandis for the enforcement of orders of the Court.
(3) The Sheriff when
executing the orders of the Court, shall be authorized to act in the same
manner and to the same extent as the Sheriff or like officer of the Supreme
Court of the State or Territory in which the order is being executed, is
entitled to act.
(4) Where it is desired
to enforce an order in more than one State or Territory:
(a) it shall not be necessary to adopt different
modes of procedure and forms of process in each State or Territory; and
(b) it shall be sufficient to adopt the mode of
procedure and form of process of the Supreme Court of one of the States or
Territories in which execution is to be made, and to execute the order in like
manner in the other States and Territories.
8 Ex
parte application
A party interested in the execution or enforcement
of an order may apply to the Court ex parte for directions as to its
execution or enforcement.
9 Committal —
Form 49
A person shall not be committed except by or under
an order of the Court, in accordance with Form 49, stating why he is being
committed.
10 Stay
of execution
The Court may stay execution of a judgment or
order.
Order 38 Assessment of damages
1 Ascertainment
of damages where a matter of calculation
(1) Where:
(a) a respondent admits liability on an
applicant’s claim, but denies liability to the extent of the damages claimed;
or
(b) the Court finds that a party is liable to pay
damages;
the Court, if it considers that the amount of damages to be
recovered is substantially a matter of calculation, may direct that the amount
which the party liable shall be ordered to pay be ascertained by the Registrar
at the proper place.
(2) The attendance of witnesses and the production of
documents before the Registrar may be compelled by subpoena.
(3) The Registrar may adjourn the inquiry from time to
time.
2 Certificate
of Registrar
(1) The Registrar shall certify the amount of damages
which he has ascertained pursuant to rule 1, and shall deliver a copy of the
certificate to each party and, unless within 7 days of the delivery thereof to
him any party objects the Registrar shall deliver the certificate to a Judge,
who, without the attendance of any party, may make an order that the person
liable pay the amount of damages so ascertained.
(2) Upon an order being made pursuant to subrule (1),
the Registrar shall deliver a copy of the order to each party.
(3) Where an objection is made under subrule (1), the
Registrar shall give notice of the objection to the other party and list the
matter for hearing before the Court and deliver his certificate to the Court.
(4) Upon a hearing pursuant to subrule (3) it shall be a
matter for the Court as to what weight should in the circumstances of the case,
be given to the certificate of the Registrar.
3 Damages
in respect of continuing cause of action
Where damages are assessed in respect of a
continuing cause of action, they shall be assessed down to the time of
assessment.
Order 39 Accounts and inquiries
1 Account:
summary order
(1) Subject to subrule (2), where a party claims an
account or makes a claim which involves taking an account, the Court may, at
any stage of the proceeding:
(a) order that an account be taken; and
(b) order that any amount certified on taking the
account to be due to any party be paid to the party.
(2) The Court shall not make an order under subrule (1):
(a) as against a respondent who has not filed an
appearance unless the respondent is in default of appearance; or
(b) if it appears there is some preliminary
question to be determined.
2 Account
or inquiry at any stage
The Court may, at any stage of a proceeding, make
orders for the taking of any account or the making of any inquiry.
3 Account:
directions
Where the Court makes an order for the taking of an
account, the Court, by the same or subsequent order:
(a) may give directions concerning the manner of
taking or vouching the account; and
(b) without limiting paragraph (a), may direct
that in taking the account the relevant books of account shall be evidence of the
matters contained in them.
4 Account:
form and verification
(1) The items on each side of an account shall be
numbered consecutively.
(2) An accounting party shall, unless the Court
otherwise orders, verify his account by affidavit and the account shall be made
an exhibit to the affidavit.
5 Account:
filing and service
An accounting party shall, unless the Court
otherwise orders:
(a) file his account and verifying affidavit;
and
(b) serve the account and affidavit on each other
party on the date of filing.
6 Account:
notice of charge or error
(1) Where a party seeks to charge an accounting party
with an amount beyond that of which the accounting party by his account admits
receipt, he shall give to the accounting party notice of the charge, stating,
so far as he is able, the amount which he seeks to charge, with brief
particulars.
(2) Where a party alleges that any item in the account
of an accounting party is erroneous in amount or otherwise, he shall give to
the accounting party notice of the allegation, stating the grounds for alleging
the error.
7 Account:
allowances
In taking an account under a judgment or order, all
just allowances shall be made.
8 Delay
Where it appears to the Court that there is delay
in the prosecution of any account, inquiry or other matter under a judgment or
order, the Court may make such orders as it thinks fit for staying or
expediting the proceedings or for the conduct of the proceedings.
9 Account:
taken before Registrar
The Court may order any account or inquiry under
this Order to be taken before or held by the Registrar at the proper place.
10 Certificate
of Registrar
(1) The Registrar shall certify the results of the
account or inquiry which he has taken or held pursuant to rule 9, and shall
deliver a copy of the certificate to each party and, unless within 7 days of
the delivery thereof to him any party objects the Registrar shall deliver the
certificate to a Judge, who, without the attendance of any party, may make an
order that the person liable pay the amount so certified to be due to any
party.
(2) Upon an order being made pursuant to subrule (1),
the Registrar shall deliver a copy of the order to each party.
(3) Where an objection is made under subrule (1), the
Registrar shall give notice of the objection to the other party and list the
matter for hearing before the Court and deliver his certificate to the Court.
(4) Upon a hearing pursuant to subrule (3) it shall be a
matter for the Court as to what weight should, in the circumstances of the
case, be given to the certificate of the Registrar.
Order 40 Contempt
Division 1 Contempt in the face or hearing of the Court
1 Arrest
Where it is alleged, or appears to the Court on its
own view, that a person is guilty of contempt of court, committed in the face
of the Court or in the hearing of the Court, the Court may:
(a) by oral order direct that he be brought
before the Court; or
(b) issue a warrant for his arrest.
2 Charge,
defence and determination
Where the accused person is brought before the Court,
the Court shall:
(a) cause him to be informed orally of the
contempt with which he is charged;
(b) require him to make his defence to the
charge;
(c) after hearing him, determine the matter of
the charge; and
(d) make an order for his punishment or
discharge.
3 Interim
custody
(1) The Court may, pending disposal of the charge:
(a) direct that the accused person be kept in
such custody as the Court may determine; or
(b) direct that he be released.
(2) The Court may make a direction under subrule (1)
which may include a requirement that the accused person give security, in such
sum as the Court directs, for his appearance in person to answer the charge.
Division 2 Motion or proceedings for punishment
4 Application
This Division does not apply to a case in which the
Court proceeds under Division 1.
5 Procedure
generally
(1) Where it is alleged that a contempt has been
committed in connection with a proceeding in the Court, an application for
punishment for the alleged contempt must be made by motion on notice in the
proceeding, but if a separate proceeding for punishment of the alleged contempt
is commenced, the proceeding so commenced may be continued unless the Court
otherwise orders.
(2) Where it is alleged that a contempt has been
committed, but not in connection with the proceeding in the Court, the
proceeding for punishment of the alleged contempt must be commenced as a
substantive proceeding but, if an application for punishment of the alleged
contempt is made by motion on notice in any proceeding, the application may be
heard and disposed of in the latter proceeding, unless the Court otherwise
orders.
6 Statement
of charge
A statement of charge, that is, a statement
specifying the contempt of which the accused person is alleged to be guilty,
shall be subscribed to, or filed with, the notice of motion or application.
7 Evidence
(1) Subject to subrule (2), the evidence in support of
the charge shall be by affidavit.
(2) The Court may permit evidence in support of the
charge to be given otherwise than by affidavit.
8 Service
The notice of motion or application, the statement
of charge, and the affidavits shall be served personally on the accused person.
9 Arrest —
Form 48
Where:
(a) notice of a motion for punishment of a
contempt has been filed or a proceeding has been commenced for punishment of a
contempt; and
(b) it appears to the Court that the accused
person is likely
to abscond or otherwise withdraw himself from the jurisdiction of the Court;
the Court may issue a warrant, in accordance with Form 48, for the
arrest of the accused person and his detention in custody until he is brought
before the Court to answer the charge, unless he, in the meantime, gives
security in such manner and in such sum as the Court directs, for his appearance
in person to answer the charge and to be dealt with in accordance with any
order of the Court.
10 Motion
or proceedings by the Registrar
(1) Where it is alleged, or appears to the Court on its
own view, that a person is guilty of contempt of the Court, the Court may, by
order, direct the Registrar to apply by motion for, or to commence a proceeding
for, punishment of the contempt.
(2) Subrule (1) does not affect such right as any person
other than the Registrar may have to apply by motion for, or to commence a
proceeding for, punishment of contempt.
Division 3 General
11 Warrant —
Form 48
A warrant for the
arrest or detention under this Order of an accused person must be in accordance
with Form 48 and addressed to the Sheriff, and may be issued under the hand of
the Judge presiding in the Court directing the arrest or detention.
12 Discharge
Where an accused person is committed to prison for
a term, the Court may order his discharge before the expiry of the term.
Order 41 Documents
1 First
page of a document — Form 1
(1) A document in any proceeding shall be headed in the
manner indicated in Form 1 of the Schedule, that is to say with a reference to:
(a) the District Registry where the document is
filed; and
(b) the serial number of the proceeding.
(2) A document in any proceeding between parties shall
be entitled between the parties.
Note Order
78, subrule 41A (3) allows certain documents in proceedings under the Native
Title Act 1993 to be headed with a short title that does not mention the
parties.
Form 3
(3) A document in a proceeding in which there is no
respondent must be headed in accordance with Form 3.
Form 2
(4) Except in the case of:
(a) an originating process;
(b) a document to be served on a person not a
party to a proceeding; or
(c) a final order;
a document may be headed in accordance with Form 2, using an
abbreviation of the title of the proceeding sufficient to identify the
proceeding.
2 Documents
(1) This rule applies to a document prepared by a party
for use in the Court, except to the extent that the nature of the document
renders compliance impracticable.
(2) A document shall be on paper of durable quality,
capable of receiving ink writing, and measuring about 295 millimetres long and
210 millimetres wide provided that the Chief Justice may direct that documents
of different dimensions be accepted in the case of any particular Registry.
(3) The writing on a document may be on 1 or both sides
of the paper, but not partly on 1 side and partly on both sides.
Note The Court or a Judge may direct that
one‑sided documents be provided to the Court.
(3A) A margin of at least 25 millimetres must be kept clear
on the left side of each page of a document containing writing.
(4) There shall be a space of not less than 3 millimetres
between the lines of writing.
(5) The writing shall be clear, sharp, legible and
permanent.
(6) A carbon copy shall not be filed.
(7) A document shall not be filed if it bears any
blotting, erasure, or such alteration as to cause material disfigurement.
(8) There shall be a space of not less than 20 mm
between the last line of writing and the end of each page of a document.
(9) The pages of a document must be securely fastened.
3 Details
to be shown on first page of a document
(1) A document prepared by a party for use in the Court
shall have a horizontal line drawn at the foot of the first page below which
shall be shown:
(a) the party on whose behalf the document is
filed, the name, address, telephone number and, if applicable, the facsimile
number and the email address of the solicitor for the party, and, if the
solicitor acts in the proceedings by an agent, the name, address, telephone
number and, if applicable, the facsimile number and the email address of the
agent; and
(b) where a notice for service at a document
exchange is
filed under Order 7, paragraph 7 (1) (a), the exchange box number.
(2) Where a party preparing a document for use in the
Court is not represented by a solicitor, paragraph (1) (a) does not apply but
instead the name and address for service of the party, and, if applicable, his
or her telephone number, facsimile number and email address, must be shown.
4 Numbers
Dates, sums and other numbers shall be expressed in
figures and not in words.
5 Scandalous,
vexatious or oppressive material
If there is matter in a document (other than an
affidavit) which is, having regard to the issues in the proceeding, scandalous,
vexatious or oppressive, the Court may order that:
(a) the document be removed from the file; or
(b) the matter be struck out of the document.
6 Signing
documents — Form 4
A document filed, other than an affidavit, annexure
or exhibit attached to another document, must be concluded in accordance with
Form 4 and signed by the party filing it or by a legal practitioner unless the
nature of the document is such that the signature is inappropriate.
7 Signature
by electronic means
If a document (other than an affidavit) is required
by these Rules to be signed, that requirement is satisfied if a facsimile of
the signature is affixed on the document by electronic means, by, or at the
direction of, the signatory.
7A Signature
by electronic means — Registrar
A requirement in these Rules that a document (other
than an affidavit) must be signed by a Registrar is satisfied if a facsimile of
the signature of the Registrar appointed under section 18C of the Act is
affixed on the document by electronic or other means by, or at the direction
of, an officer acting with the authority of that Registrar.
8 Documents
filed electronically
If a document has been filed electronically and a
notice has been inserted as the first page of the document in accordance with
Order 1, paragraph 5AC (5) (a) or (b), the notice is deemed to be
part of the document for the purposes of the Act and these Rules (including any
rules about service of the document).
Order 42 Partnerships and
business names
Division 1 Partnerships
1 Interpretation
In this Division, partnership name
means a name under which two or more persons carry on business in partnership
within Australia, whether or not the name consists of the names of one or more
of those persons.
2 Action
in partnership name
(1) An action by or against two or more persons claiming
as partners or against two or more persons claimed to be liable as partners and
who carry on business in partnership within Australia may be brought in the
partnership name.
(2) The partnership name shall be that obtaining at the
time the cause of action arose.
(3) Where the proceeding is commenced pursuant to
subrule (1), unless the Court otherwise orders, it shall continue in the
partnership name, and not in the names of the individual partners.
3 Disclosure
of names etc of partners
(1) At any stage of the proceeding any party may, by
notice in writing, require the partnership to furnish it with the names and
places of residence of those persons who were partners of the partnership at
the time the cause of action arose.
(2) If the partnership fails to furnish the information
pursuant to subrule (1), the party making the requirement may move on notice:
(a) for an order requiring the partnership to
furnish the information; and
(b) if the partnership is an applicant — for
an order that the action be stayed until the information is provided.
4 Service
(1) Subject to subrule (3), where persons are sued as
partners in the partnership name pursuant to rule 2, the originating process
shall be served personally:
(a) upon any one or more of the partners; or
(b) by leaving a copy of the process at the place
where the business is carried on with some person apparently engaged (as an
employee or otherwise) in the business and apparently of or above the age of 16
years.
(2) Subject to subrule 9 (2) of this Order, where
service is effected pursuant to subrule (1), it shall be deemed to be served
upon all the partners of the partnership, including any partner outside the
jurisdiction at the time of the issue of the originating process.
(3) Where the applicant is aware that the partnership
has been dissolved prior to the commencement of the proceedings, he shall, in
addition to effecting service under subrule (1), effect service on any partner
sought to be made liable who has ceased to be a partner of the partnership at
the time of the commencement of the proceedings.
5 Appearance
of partners
(1) Where a person is served pursuant to rule 4, he
shall enter an appearance in his own name.
(2) Notwithstanding subrule (1), the proceeding shall
continue in the name of the partnership.
6 Appearance
under protest of person served as partner
(1) Where a person served under rule 4 denies that he is
a partner of the partnership, or denies that he was a partner of the
partnership at the time of the cause of action arose, he shall file an
affidavit making that denial before the directions hearing appointed in the
application.
(2) The affidavit shall state the material facts in
support of that person’s contention.
(3) Subrule (1) does not prevent any person raising the
defence referred to in that subrule, at any later stage of the proceeding.
7 Defence
(1) Subject to rule 6, where the proceeding is commenced
against partners in the partnership name pursuant to rule 2, a partner is not
entitled to file a personal defence, or file affidavits in defence as if the
proceeding were brought against him personally.
(2) Notwithstanding subrule (1) any partner may file a
defence or an affidavit in defence in the partnership name.
(3) Where more than one defence is filed pursuant to
subrule (2) or more than one ground of defence appears from the affidavits
filed pursuant to subrule (2), the applicant shall not be entitled to judgment
unless none of the defences raised affords a proper defence to his claim.
8 Entry
of order
Where a proceeding has been commenced under this
Order, an order in favour of or against the partnership shall be entered in the
partnership name and not in the name of an individual partner.
9 Execution
of judgment against a partnership
(1) Where a judgment or order is against partners in the
name of the partnership, the judgment or order may be executed:
(a) against any property of the partnership
within Australia;
(b) against any partner who has entered an
appearance;
(c) against any person who has admitted that he
is or has been adjudged to be a partner; and
(d) against any partner who has been individually
served with the originating process.
(2) Subrule 4 (2) of this Order does not apply to render
any partner individually liable who has not been personally served with the
originating process and has not entered an appearance.
(3) Execution may be had against any partnership
property within Australia, notwithstanding that any partner may be resident
abroad.
10 Judgment
against individual partner
(1) Where a party has obtained judgment against partners
in the partnership name and desires to issue execution against an individual
partner who is not liable under rule 9, he shall move on notice to the
individual partner for judgment against him.
(2) On the hearing of the motion, if the partner admits
liability, judgment may be pronounced and an order made against him.
(3) On the hearing of the motion, if the partner denies
liability, the Court shall give the necessary directions for the hearing of the
proceeding which shall be against the partner individually, and not in the
partnership name.
11 Application
to proceedings between co‑partners
(1) In addition to its other operation, this Order,
subject to subrule (2), also applies to:
(a) a proceeding between a partnership and one
or more of its members; and
(b) a proceeding
between partnerships having one or more members in common;
provided such partnership or partnerships carry on business in
Australia.
(2) No execution shall be issued in a proceeding to
which subrule (1) applies without the leave of the Court.
(3) On an application for leave under subrule (2), the
Court may give such directions and order the taking and holding of such
accounts and inquiries as it thinks just.
Division 2 Individuals trading under a business name
12 Interpretation
In this Division, business name means
a name, style, title or designation under which a person carries on a business
not being a name consisting of the name of that person and the name of each
other person, if any, in association with whom that person carried on business,
without any addition.
13 Proceedings
in business name
(1) Where a claim is made against any person in respect
of anything done or omitted or suffered in the course of, or otherwise relating
to, a business carried on within Australia by that person under a business
name:
(a) if the business name is registered in a
register in the State or Territory in which the business is carried on, which
register discloses the name and residential address of the person — a
proceeding shall only be commenced against that person in his own name or
pursuant to Division 1; and
(b) if the business name is not registered in a
register referred to in paragraph (a) — a proceeding may be commenced
against that person in that business name.
(2) Where a proceeding is
commenced against a person in a business name pursuant to paragraph (1) (b):
(a) that business name shall, for the purpose of
the proceeding, be a sufficient designation of that person in any process; and
(b) any judgment or order made in the proceeding
may be enforced against that person.
14 Application
of rules
The succeeding rules of this Order apply where a
proceeding is commenced under paragraph 13 (1) (b) against a person in a
business name.
15 Service
Personal service of any document on the person may
be made:
(a) by leaving a copy of the document with him;
or
(b) by leaving a copy of the document at the
place where the business is carried on, with some person apparently engaged (as
an employee or otherwise) in the business and apparently of or above the age of
16 years.
16 Appearance
(1) Where any person is sued in a business name, he
shall not enter an appearance except in his own name.
(2) Where any person enters an appearance in a
proceeding in which he is sued in a business name, he shall file and serve with
his notice of appearance a statement of the names and places of residence of
all the persons carrying on business under that business name on the date of
commencement of the proceeding.
(3) Where a person fails to comply with subrule (2), the
court may order that his appearance be struck out.
17 Proceeding
under either Division
Where an appearance filed under subrule 16 (2)
discloses the names of other persons who carry on or who carried on business
under that business name, a party may proceed in accordance with Division 1 or
under this Division, both on the date of commencement of the proceeding and on
the date (if any) specified in the application as the date on which the cause
of action arose.
18 Amendment
as to parties
(1) Where a proceeding is commenced against a person in
a business name, the applicant shall, as soon as practicable, take all
reasonable steps (whether by way of discovery of documents, interrogatories or
otherwise) for the purpose of ascertaining the name of the respondent and
shall, so far as practicable, make amendments so that the proceedings are
continued against the person sued in his own name and not in his business name.
(2) Where a proceeding is commenced against a person in
a business name, the applicant shall not, without the leave of the Court, take
any step in the proceeding, except in respect of service of the originating
process and except for the purpose of compliance with subrule (1), until
amendments are made in accordance with subrule (1).
(3) Where an amendment is made under this rule, the mode
of amendment and service after amendment shall be in accordance with Order 13,
rules 8, 9 and 10.
(4) A party may make an amendment pursuant to Order 13,
rule 4 notwithstanding he has made an amendment under this rule.
19 Execution
(1) Where proceedings against a person in a business
name are continued by leave given under rule 18, a judgment or order against
that person in the business name shall not be enforced by execution except as
mentioned in this rule.
(2) A judgment or order against a person in a business
name may be enforced by execution against any property of the business carried
on under that name and, where the judgment or order is against partners in the
partnership name it may be executed in accordance with rule 9.
(3) In subrule (2), the expression property of the
business, in relation to a judgment or order against a person in a
business name, means all property and rights and interests in property,
originally brought into the business carried on under that name or acquired,
whether by purchase or otherwise, on account of the business, or for the
purposes and in the course of the business, being property, rights or interest
of that person.
20 Variation
of judgment or order
(1) Notwithstanding rule 19, the Court may vary a
judgment or order against a person in a business name so as to make it a
judgment or order against that person in his own name, and when so varied, the
judgment or order may be enforced accordingly.
(2) Notice of a motion for a variation of a judgment or
order under subrule (1) shall be served personally on the person against whom
the judgment was given or the order was made, and paragraph 15 (b) shall not
apply to that service.
21 Discovery
in aid of rules 18 and 20
(1) Where it appears to the Court that some person has
or may have knowledge of facts, or has or may have in his possession, custody
or power any document or thing, tending to assist in the ascertainment of the
identity or description, of a respondent sued in a business name, the Court
may, for the purpose of enabling amendments to be made under rule 18 or a
variation of a judgment or order to be made under rule 20:
(a) order that person to attend before the Court
or an officer of the Court and be orally examined on any matter relating to the
identity or description of the respondent;
(b) order that person to produce any document or
thing in his possession, custody or power relating to the identity or
description of the respondent; and
(c) if that person is a corporation or
organisation order the corporation or organisation or any officer of the
corporation or organisation to produce any document or thing in the possession,
custody or power of the corporation or organisation relating to the identity or
description of the respondent.
(2) In subrule (1), description, in
relation to a respondent, includes the name, place of residence, place of
business, occupation and sex of the respondent.
Order 43 Disability
1 Proceeding
by or against person under disability
(1) An infant or minor may sue by his next friend.
(2) An infant or minor may defend in a proceeding by his
guardian appointed for that purpose.
(3) A mentally disabled person may sue in a proceeding
by the committee if any, of his person or estate as the case may be, or where
there is no such committee, by his next friend.
(4) A mentally disabled person may defend by his
committee if any, or where there is no such committee, by his guardian
appointed for that purpose.
2 Appointment
of tutor by the court
(1) The Court may appoint a tutor for a person under
disability for the purpose of a proceeding.
(2) A person moving for an appointment under this rule
shall, unless the Court otherwise orders, serve notice of the motion on the
person under disability.
3 Removal
of tutor
(1) The Court may:
(a) remove a tutor in a
proceeding; and
(b) stay the proceeding until a
tutor has been appointed in place of the removed tutor.
(2) A person moving for an order under this rule shall,
unless the Court otherwise orders, serve notice of the motion on the tutor
whose removal is sought and on the person under disability for whom the tutor
was appointed.
4 Appointment
of tutor generally
(1) Subject to these Rules, an order appointing a tutor
is not necessary.
(2) Any person may be a tutor except:
(a) a person under disability;
(b) a corporation or organisation unless the
corporation or organisation is any of the following:
(i) the Public Trustee of New South
Wales;
(ii) the Public Trustee of Victoria;
(iii) the Public Curator of Queensland;
(iv) the Public Trustee of South
Australia;
(v) the Public Trustee of Western
Australia;
(vi) the Public Trustee of Tasmania;
(vii) The Curator of Estates of Deceased
Persons of the Australian Capital Territory;
(viii) the Public Trustee of the Northern
Territory;
(ix) a trustee company which has by
Statute or Ordinance of a State or Territory of Australia been given a right to
act as trustee, executor or administrator.
(3) A person may not be a tutor of a person under disability
in any proceeding in which he has an interest adverse to the interest of the
person under disability.
(4) A person shall not be made a tutor without his
consent.
(5) Where a person has been or is tutor for a person
under disability in any proceeding, no other person may, except on appointment
by the Court, act as tutor for the person under disability in that proceeding.
(6) A person shall not take any step in any proceeding
as tutor for a person under disability unless beforehand there have been filed:
(a) his consent to act; and
(b) a certificate by his solicitor that the tutor
has no interest in the proceeding adverse to that of the person under
disability.
(7) The evidence on a motion for an appointment under
subrule 3 (1) shall include evidence:
(a) that the person for whom the tutor is
proposed to be appointed is a person under disability;
(b) that the proposed tutor:
(i) consents to act;
(ii) is a proper person for
appointment; and
(iii) has no interest in the proceeding
adverse to the interest of the person under disability; and
(c) that the person under disability is in
default of appearance, if that is the fact.
5 Conduct
of proceedings by tutor
(1) Subject to the Rules, where a person under
disability is a party to any proceedings, anything which would, if he were not
a person under disability, be required or authorized by these Rules to be done
by him shall or may be done by his tutor.
(2) A tutor must act by a solicitor.
6 Cross‑claim
A tutor defending any proceeding for a person under
disability may bring a cross‑claim under Order 5.
7 No
imputed admission on pleadings
Order 11, subrule 13 (1) does not apply to an
opposite party who is a person under disability.
8 Discovery
and interrogatories
Orders 15 and 16 apply to a person under disability
and to his tutor.
9 Compromise
etc of matter in suit
(1) Where a proceeding has been commenced, and
afterwards an agreement is made by the tutor in the proceeding of a person
under disability, for the compromise or settlement of any matter in dispute in
the proceeding, the tutor shall apply to the Court for approval of the
agreement and the Court may approve or disapprove the agreement.
(2) An agreement approved by the Court under subrule (1)
is as binding on the person under disability as if the person under disability
were not a person under disability and his tutor were his agent to make the
agreement.
(3) An agreement disapproved by the Court under subrule
(1) is not binding on the person under disability.
10 Payment
into Court
A tutor shall not, except by leave of the Court,
pay money into Court or make an offer of compromise.
11 Compromise
etc before suit
(1) Where a claim enforceable by a proceeding in the
Court is made by or on behalf of, or against a person under disability and,
before the proceeding is commenced to enforce the claim, an agreement is made
by or on behalf of the person under disability for the compromise or settlement
of the claim, the Court may approve or disapprove the agreement.
(2) An agreement approved by the Court under subrule (1)
is as binding on the person under disability by or on whose behalf it is made
as if the person under disability were not a person under disability and, where
the agreement is made by another person on behalf of the person under
disability as if that other person were his agent to make the agreement.
(3) An agreement disapproved by the Court under subrule
(1) is not binding on a person under disability by or on whose behalf it is
made.
(4) A person shall commence a proceeding by application
for approval of an agreement under this rule, and may, by the application, seek
enforcement of the claim in case the Court does not approve the agreement.
(5) Where, in a proceeding under this rule, the Court
does not approve an agreement but the applicant seeks to enforce the claim, the
Court may give directions for the further conduct of the proceeding.
12 Terms
of approval
(1) The Court may give leave or approval under rule 10
or 11 on terms.
(2) Without affecting the generality of subrule (1), the
Court:
(a) may, as a term of its approval, require that
any money or other property payable or applicable to or for the benefit of a
person under disability be dealt with by way of settlement or otherwise as the
Court thinks fit for the benefit of the person under disability; and
(b) may make such orders as it thinks fit for the
carrying out of its requirements under paragraph (a).
13 Service
(1) This rule applies where, in any proceeding, a
document is required to be served personally on a person under disability.
(2) Personal service on a person under disability shall
not be effected otherwise than in accordance with this rule.
(3) Where the person under disability has a tutor in the
proceeding, the document may be served on the tutor.
(4) The document may be served on any person (including
the person under disability) whom the Court may, before or after service,
approve.
(5) Where the person to be served is an infant or minor
and has no tutor in the proceeding, the document may be served:
(a) if he is aged 16 years or upward, on him;
(b) on a parent of his or a guardian of his
person or of his estate; or
(c) if he has no parent and has no guardian of
his person or of his estate, on a person with whom he resides or in whose care
he is.
(6) Where the person to be served is a mentally disabled
person and has no tutor in the proceeding, the document may be served:
(a) if a committee is appointed of his person or
estate, or he has a guardian, on the committee or guardian; or
(b) if there is no committee or guardian, on a
person with whom he resides or in whose care he is.
(7) A document served pursuant to any of subrules (3) to
(6) must be served in the manner required by the Rules with respect to the
document.
(8) A judgment or order requiring a person under
disability to do, or refrain from doing any act, a notice of motion for the
committal of a person under disability, and a subpoena against a person under
disability, must, in addition to any other service required by these Rules, and
notwithstanding anything in subrules (3) to (6), be served personally on the
person under disability.
(9) Subrule (8) does not apply to an order for
interrogatories or for discovery or inspection of documents.
Order 44 Interpleader
Division 1 Preliminary
1 Interpretation
In this Order, unless the context or subject matter
otherwise indicates or requires:
claimant means a person making a claim to
property in dispute.
execution creditor means a person on whose
behalf process is issued.
process means process for execution issued by
or under the authority of the Court.
property in dispute means any debt or
property which is the subject of proceedings under this Order.
stakeholder means a person described in rule
2.
Division 2 Stakeholder’s interpleader
2 Case
for relief
Where:
(a) a person is under a liability (otherwise
than as a Sheriff) in respect of a debt or other personal property; and
(b) the person is sued, or expects to be sued, in
the Court, for or in respect of the debt or property by two or more persons
making adverse claims to the debt or property;
the Court may grant relief by way of interpleader.
3 Application
in a pending proceeding
(1) Where a stakeholder has, in a proceeding in the
Court, been sued for or in respect of the property in dispute, the application
shall be by motion in the proceeding.
(2) A stakeholder applying pursuant to subrule (1):
(a) shall serve notice of the motion on each
party to the proceeding who claims any interest in the property in dispute; and
(b) shall serve notice of the motion personally
on each claimant who is not a party to the proceeding.
(3) In a case to which subrule (1) does not apply, a
stakeholder applying for relief by way of interpleader shall commence the
proceeding by application, joining each claimant as a respondent.
Division 3 Sheriff’s interpleader
4 Notice
of claim — Form 50
(1) Where a Sheriff takes or intends to take any
personal property in execution under process, a person making a claim to or in
respect of the property or the proceeds or value of the property may give
notice of his or her claim, in accordance with Form 50, to the Sheriff.
(2) A notice of claim given under this rule shall:
(a) specify the claim;
(b) state the name and place of abode of the
claimant;
(c) state an address for service; and
(d) be accompanied by a copy of the notice.
(3) Where a person who is entitled to give notice under
this rule does not, within a reasonable time after having knowledge of the
facts, give notice under this rule, the Court may, on application by the
Sheriff, restrain the commencement or stay the continuance by that person of
the proceeding in the Court or restrain the commencement or the continuance by
that person of a proceeding in any other court against the Sheriff for or in respect
of anything done by the Sheriff in execution of the process after the time when
that person might reasonably have given notice under this rule.
(4) Subject to subrule (5), a Sheriff may apply for an
order under subrule (3) by motion in the proceeding in which the process is
issued and, if he so applies, he shall serve notice of the motion personally on
the person against whom the order is sought.
(5) If a proceeding to which subrule (3) applies is
brought in the Court against a Sheriff, an application by him for an order
under that subrule restraining the continuance of that proceeding shall be made
by motion in that proceeding.
5 Notice
to execution creditor
(1) A Sheriff shall, on being given notice of claim
under rule 4, serve the notice on the execution creditor.
(2) The execution creditor may serve on the Sheriff
notice that he admits the claim.
6 Admission
of claim
(1) Where an execution creditor admits a claim by notice
under rule 5:
(a) he shall not be liable to the Sheriff for
any fees or expenses incurred by the Sheriff under the process after the notice
under rule 5 is given;
(b) the Sheriff shall withdraw from possession of
the property claimed; and
(c) the Court may, on application by the
Sheriff, restrain the commencement or stay or restrain the continuance by the
person whose claim is admitted of a proceeding in any court against the Sheriff
for or in respect of anything done by the Sheriff in execution of the process.
(2) If a proceeding to which paragraph (1) (c) applies
is brought in the Court against the Sheriff, an application by him for an order
under that paragraph restraining the continuance of that proceeding shall be
made by motion in that proceeding.
(3) Subject to subrule (2), a Sheriff may apply for an
order under paragraph (1) (c) by motion in the proceeding in which the process
is issued.
7 Interpleader
motion
(1) Where a Sheriff has, under rule 5, served a notice
of claim on the execution creditor and the execution creditor does not, within
4 days after service of the notice, under rule 5, serve on the Sheriff notice
that he admits the claim, and the claim has not been withdrawn, the Court may,
on application by the Sheriff, grant relief by way of interpleader.
(2) An application of the Sheriff under this rule shall
be by motion in the proceeding in which the process is issued.
(3) A Sheriff moving pursuant to this rule shall serve
notice of the motion on each party to the proceeding who claims any interest in
the property in dispute and on each claimant.
Division 3A Payment pursuant to statutory entitlement
7A Payment
pursuant to statutory entitlement
A person who wishes to make a payment into Court
pursuant to a specific entitlement to do so contained in any Act of the
Commonwealth may, at the time of making such payment, apply to the Court for
such order and directions as are considered necessary.
Division 4 General
8 Powers
generally
On application for relief by way of interpleader:
(a) the Court may make such orders and
directions as it thinks fit for the hearing and determination of all matters in
dispute; and
(b) without limiting the generality of paragraph
(a), the Court may:
(i) where a proceeding in the Court is
pending in which the applicant is sued for or in respect of any of the property
in dispute, order that any claimant be added as a respondent in that proceeding
in addition to or in substitution for the applicant, or order that that
proceeding be stayed or dismissed;
(ii) order the applicant to pay or
transfer any or all of the property in dispute into Court or otherwise to
dispose of any or all of the property in dispute;
(iii) where a claimant claims to be
entitled by way of security for debt to any or all of the property in dispute,
make orders for the sale of any or all of the property in dispute and for the
application of the proceeds of sale;
(iv) on request by any party, summarily
determine any or all questions of fact or law in which the requesting party is
interested arising on the application;
(v) make orders for the settlement and
trial of issues; and
(vi) make such order, or pronounce such
judgment, as the nature of the case requires.
9 Default
by claimant
(1) Where:
(a) a claimant has been given due notice of the
hearing of an application for relief by way of interpleader and does not appear
at the hearing; or
(b) a claimant does not comply with an order made
in the proceeding on such an application;
the Court may, subject to subrule (2), order that the claimant and
those claiming under him be barred from prosecuting his claim against the
applicant and those claiming under him.
(2) An order under subrule (1) shall not affect the
rights of the claimants amongst themselves.
10 Neutrality
of applicant
(1) Where a stakeholder applies for relief by way of
interpleader, the Court may dismiss the application or pronounce judgment
against the applicant unless the Court is satisfied on the following matters:
(a) that the applicant claims no interest in the
property in dispute except for charges or costs;
(b) that the applicant does not collude with any
claimant.
(2) Where a Sheriff applies for relief by way of
interpleader, the Court may require the Sheriff to satisfy the Court on the
matters mentioned in subrule (1) and the Court may, if not satisfied on those
matters, dismiss the application.
(3) Nothing in this rule affects the power of the Court
in other cases to dismiss the application or to pronounce judgment against the
applicant.
11 Order
in several proceedings
(1) Where an application for relief by way of
interpleader is made and several proceedings are pending in the Court for or in
respect of any or all of the property in dispute, the Court may make an order
in any two or more of those several proceedings.
(2) An order made pursuant to subrule (1) shall be
entitled in all the proceedings in which it is made and the order shall be
binding on all the parties to them.
12 Disposal
The Court before which an issue is tried under this
order may pronounce such judgment, or may make such order, as the nature of the
case requires, including a judgment or order finally disposing of all questions
arising in the proceedings.
Order 45 Solicitors
1 Power
to act by solicitor
(1) Every matter or thing which under the Act or the
Rules or otherwise by law is required or allowed to be done by a party may be
done by his solicitor.
(2) Subrule (1) does not apply where the context or
subject matter otherwise indicates or requires.
2 Adverse
parties
Where a solicitor or his partner acts as solicitor
for any party to any proceeding, or is a party to any proceeding, that
solicitor shall not, without the leave of the Court, act for any other party to
the proceedings not in the same interest.
3 Change
of solicitor
(1) Where a solicitor acts for a party in any
proceedings the party may change his solicitor.
(2) Where a party changes his solicitor, he shall file
notice of the change and serve the notice on the other parties and, where
practicable, his former solicitor.
4 Change
of agent
Where a solicitor (in this rule called the
principal solicitor) acts for a party in any proceeding and another solicitor
acts as agent for the principal solicitor in the proceeding and the principal
solicitor changes the solicitor acting as agent, the party shall file notice of
the change and serve the notice on the other parties and on the former agent
solicitor.
5 Appointment
of solicitor
Where a party acts for himself in any proceeding
and afterwards appoints a solicitor to act for him in the proceeding, the party
shall file notice of the change and serve the notice on the other parties.
6 Removal
of solicitor
(1) Where a solicitor acts for a party in any proceeding
and afterwards the party determines the authority of the solicitor to act for
him in the proceeding:
(a) the party shall file notice of the change
and serve the notice on the other parties and on his former solicitor; and
(b) the former solicitor may file notice of the
change and serve the notice on the parties.
7 Withdrawal
of solicitor
(1) Where a solicitor acts for a party to any proceeding
and afterwards ceases to act, the solicitor may, subject to subrule (2),
file notice of the change and serve the notice on the parties.
(2) A solicitor shall not file or serve notice of a
change under subrule (1) without leave of the Court unless he has, not less
than 7 days before doing so, served on his former client notice of his
intention to file and serve the notice of change.
(3) A solicitor filing a notice of change under subrule
(1) shall, except where the notice is filed with the leave of the Court, file
and serve with the notice an affidavit showing service in compliance with
subrule (2).
(4) A solicitor may serve a notice under this rule on
his former client by posting it to the former client at the residential or
business address of the former client last known to the solicitor.
8 Effect
of change
A change of which notice is required or permitted
to be filed under any of rules, 3, 4, 5, 6 and 7 shall not have effect as
between a party or solicitor to which the change relates on the one hand and
the Court or any other party on the other hand until notice of the change is
filed and, as regards any other party, is served on that other party.
9 Signature
for legal practitioner
(1) If a signature by a legal practitioner is required
or permitted for the purpose of a proceeding, it is the signature of the legal
practitioner with primary conduct of the matter that is required or permitted.
(2) For this rule, a barrister is not the legal
practitioner with primary conduct of the matter if the barrister is instructed
by a solicitor.
(3) If the legal practitioner with primary conduct of
the matter is a solicitor, any of the following persons may sign for the legal
practitioner:
(a) a partner of the legal practitioner;
(b) a solicitor who is an agent of the legal
practitioner for the purpose of the proceeding;
(c) a partner of the agent;
(d) a solicitor employed by the legal
practitioner or by the agent;
(e) a solicitor employed by the legal
practitioner’s employer.
(4) A signature made under subrule (3) must be
accompanied by a statement of the capacity in which the signature is made.
Order 46 Registries
1 Taking
of oaths and affidavits
A Registrar has, by virtue of his office, authority
to administer oaths and affirmations for the purposes of the Court and
proceedings in the Court.
2 Seal
of Court
(1) The seal of the Court as determined by the Attorney‑General
pursuant to subsection 36 (1) of the Act is in the form represented hereunder.
(2) The seal of the Court shall be kept at the Principal
Registry in such custody as the Chief Justice directs.
(3) The Registrar shall have in his custody a stamp the
design of which shall, as nearly as practicable, be the same as the design of
the seal of the Court with the addition of the words ‘Principal Registry’.
(4) The District Registrar in respect of each District
Registry shall have in his custody a stamp the design of which shall as nearly
as practicable be the same as the design of the seal of the Court, with the
addition of such words as the Chief Justice directs for the purpose of relating
the stamp to that District Registry.
(5) A document or a copy of a document to which a stamp
has been affixed in accordance with rule 4 is as valid and effectual as if it
had been sealed with the seal of the Court.
3 Use
of seal
The seal of the Court shall be affixed to:
(a) Rules of Court;
(b) commissions issued by authority of the Court;
(c) documents issued by the Court for use
outside Australia, not being documents for service on a party to the proceeding;
and
(d) such other documents as the Court or a Judge
directs or as the law requires.
4 Stamp
of Court
The stamp of the Court shall be affixed to all
process filed in the Court and orders entered and to all such other documents
as the Court directs.
4A Affixing
the seal or stamp of the Court
The seal or stamp of
the Court may be affixed on a document:
(a) by hand; or
(b) by electronic means; or
(c) in another way.
5 Custody
of documents
(1) Each Registrar shall have charge of documents in
proceedings in the Registry and of the records of the Registry.
(2) Subject to subrule (2A), documents must not be taken
out of a Registry except:
(a) for the purpose of transmission between
Registries; or
(b) with the permission of the Court or a Judge.
(2A) Subject to any conditions specified by a Registrar, a
Registrar may permit a party to proceedings to take documents out of a
Registry, unless the Court or a Judge orders otherwise.
(3) The Registrar shall ensure that the records of the
Registry are properly kept.
6 Inspection
of documents
(1) A person may search in the Registry for, and
inspect, a document in a proceeding that is specified in subrule (2), unless
the Court, or a Judge, has ordered that the document is confidential.
(2) For the purposes of subrule (1), the documents are:
(a) an application or other originating
process;
(b) a notice of appearance;
(c) a pleading or particulars of a pleading;
(d) a notice of motion or other application;
(e) a judgment;
(f) an order;
(g) a written submission;
(h) a notice of appeal;
(i) a notice of discontinuance;
(j) a notice of change of solicitors;
(k) a notice of ceasing to act;
(l) in a proceeding to which Order 78 applies:
(i) an affidavit accompanying an
application, or an amended application, under section 61 of the Native Title
Act 1993;
(ii) an extract from the Register of
Native Title Claims received by the Court from the Native Title Registrar;
(m) reasons for judgment.
(3) Except with the leave of the Court or a Judge, a person
who is not a party to a proceeding must not inspect any of the following
documents in the proceeding:
(a) an affidavit (other than an affidavit
mentioned in subparagraph (2) (l) (i));
(b) an unsworn statement of evidence filed in
accordance with a direction given by the Court or a Judge;
(c) interrogatories or answers to
interrogatories;
(d) a list of documents given on discovery;
(e) an admission;
(f) evidence taken on deposition;
(h) a subpoena or document lodged with the
Registrar in answer to a subpoena for production of a document;
(i) a judgment, order, or other document that
the Court has ordered is confidential.
(4) Except with the leave of the Court or a Judge, or
with the permission of the Registrar, a person who is not a party to a
proceeding must not inspect any document in the proceeding that is not referred
to in subrule (2) or (3).
(5) Except with the leave of the Court or a Judge, a
party to a proceeding or other person must not search in the Registry for, or
inspect:
(a) a transcript of the proceeding; or
(b) a document filed in the proceeding to support
an application for an order that a document, evidence or thing be privileged
from production.
(6) A party to a proceeding or other person may copy a
document in the proceeding if:
(a) the document is produced by the Court, a
Judge or the Registrar for inspection by the party or other person; and
(b) the Registrar gives the party or other person
permission to copy the document; and
(c) the party or other person has paid the
prescribed fee.
(7) In this Rule:
Native Title Registrar has the same meaning
as in Order 78.
Register of Native Title Claims has the same
meaning as in the Native Title Act 1993.
7 Operation
of registries
(1) Subject to these Rules and the direction of the
Court or a Judge, the Registrar of the Court may give a direction as to the
operation of any Registry.
(2) A person may apply to the Court ex parte for
a direction to the Registrar that he do any act which he is bound or entitled
to do and has refused to do.
7A Refusal
to accept document for filing
(1) A Registrar may refuse to accept or issue a document
(including any document which is, or if issued will become, an originating
document) if the document appears to the Registrar on its face to be an abuse
of the process of the Court or to be frivolous or vexatious.
(2) A Registrar may seek the direction of a Judge who
may direct the Registrar that a document (including any document which is, or
if issued will become, an originating document):
(a) is to be accepted or issued; or
(b) is not to be accepted or issued; or
(c) is not to be accepted or issued without the
leave of a Judge.
7AA Powers
of the Court that may be exercised by a Registrar (Act s 35A)
For paragraph 35A (1) (h) of the Act,
the following powers of the Court are prescribed:
(a) a power of the Court under a provision of an
Act mentioned in Schedule 3;
(b) a power of the Court under a provision of these
Rules mentioned in Schedule 3;
(c) the power of the Court under section 23
of the Act:
(i) to make an order for the dismissal
of a proceeding in accordance with a written consent given by the parties to
the proceeding, or by the legal practitioners on the record as representing the
parties; and
(ii) to make an order, in conjunction
with an order under subparagraph (i), for the payment of costs in
accordance with a written consent given by the parties to the proceeding, or by
the legal practitioners on the record as representing the parties;
(d) the power of the Court under section 53A of
the Act to make an order referring a proceeding to mediation or arbitration, if
the parties consent to the referral;
(e) the power of the Court under Order 35, rule
7 to set aside a judgment or order, made by the Registrar exercising the power,
before it has been entered.
Note See also the following:
(a) paragraphs 35A (1) (a) to (g) of the Act;
(b) Order 78, rule 3A and Schedule 4;
(c) rule 16.1 and Schedule 2 to the Federal Court
(Corporations) Rules 2000;
(d) rule 2.02 and Schedule 2 to the Federal Court
(Bankruptcy) Rules 2005.
7B Registrar’s
exercise of power (Act, s 35A)
(1) Subject to any direction by the Court or a Judge to
the contrary, an application under subsection 35A (5) of the Act for
review of the exercise of a power of the Court by a Registrar under subsection 35A (1)
of the Act must be made by motion on notice within 21 days after the day on
which the power was exercised.
(2) An application
under paragraph 35A (7) (b) of the Act may be made orally to the
Registrar at the time that the Registrar is hearing the application for the
exercise of a power mentioned in subsection 35A (1) of the Act.
(3) In this rule:
Registrar has the meaning given by subsection
35A (8) of the Act.
8 Temporary
venue
(1) When any party to any proceeding desires to make an
application therein to the Court or a Judge, and no Judge of the Court is
available there to take the application, the party may lodge with the Registrar
at the proper place a request that the application be heard and disposed of at another
place.
(2) Where a party makes a request under subrule (1), the
Registrar at the proper place shall thereupon transmit the request to the
Registrar at such other place (in this rule referred to as the temporary
venue) as that Registrar may determine together with such documents as
are necessary for the purpose of hearing and disposing of the application.
(3) The application may then be heard and disposed of at
that temporary venue and, as soon as it has been disposed of, all documents
relating to it shall be re‑transmitted to the Registry at the proper place.
(4) In any of the cases mentioned in this rule, if the
application is to be made upon notice to any person, the notice shall specify
that the application will be made before the Court or a Judge at the temporary
venue on a day on which it is fixed to be heard.
9 Transmission
of documents
(1) In any such case as is mentioned in rule 8, any
party desiring to make an immediate application to the Court or a Judge may,
instead of requesting that the application be heard and disposed of at another
place require the Registrar at the proper place to transmit by telegraph to the
Registry at another place the contents of all such documents filed in the
Registry at the proper place as are necessary for the purpose of hearing and
disposing of the application, and the Registrar at the proper place shall, on
payment by such party of the expense of transmission, transmit them accordingly
to such other place (in this rule referred to as the temporary venue)
as that Registrar may determine.
(2) The copy so received by telegraph shall be filed in
the Registry at the temporary venue and shall be receivable in evidence for the
purpose of the application to the same extent as the original documents would
be admissible.
(3) If the application is to be made upon notice to any
person, the notice shall state that the documents will be transmitted by
telegraph to the Registry at the temporary venue.
(4) If any person to whom notice is given under subrule
(3) requires any other documents to be transmitted by telegraph to the Registry
at the temporary venue, they shall be transmitted accordingly and shall be
receivable in evidence in like manner.
(5) Evidence of service of the notice may also be so
transmitted.
10 Transmission
of order
When in any of the cases mentioned in rules 8 and 9
an order has been made by the Court or a Judge at a temporary venue, the
Registrar at the temporary venue shall at the request and expense of either
party and without payment of any further fee inform the Registrar at the proper
place by telegraph of the effect of the order, and thereupon and without
waiting for the receipt of the order, full effect shall be given to the order.
11 Summary
of order
In any of the cases aforesaid a Registrar may, by
consent of the parties, instead of transmitting by telegraph the full contents
of any document transmit a summary thereof certified by him to be complete and
correct, and the summary may be received and acted upon by the Court or Judge
as if it were a copy of the original document.
12 Facsimile
Documents transmitted by use of facsimile
transmitting equipment shall be deemed documents transmitted by telegraph for
the purposes of this Order.
Order 47 Sheriff
Division 1 General
1 Interpretation
In this Order, unless the context or subject matter
otherwise indicates or requires:
bill means bill of fees of the Sheriff.
fees includes charges and poundage.
person interested in relation to the fees of
the Sheriff in respect of the service or execution of any process, means:
(a) a party who lodges the process with the
Sheriff for service or execution;
(b) a solicitor who gives an undertaking to pay
the fees or is otherwise liable to pay the fees; or
(c) in the case of a writ of execution authorizing
the Sheriff to levy the fees on any property, the person upon whose property
the levy is authorized.
2 Suspension
of execution
(1) The Sheriff shall not suspend the execution of any
process, except upon an absolute instruction in writing to that effect lodged
with him by the party by whom the process is lodged.
(2) A party who has lodged an instruction to suspend the
execution of any process may withdraw the instruction by lodging with the
Sheriff an instruction to execute the process.
3 Default
Where the Sheriff defaults by not executing any
process according to its tenor, application may be made for an order directing
him to execute the same.
4 Execution:
motion for directions
The Sheriff may move the Court or a Judge ex
parte or on notice for directions as to whether process should be executed,
and the manner in which execution should be made.
Division 2 Fees
5 Security
(1) Where a party to any proceeding lodges any process
with the Sheriff for service or execution, the Sheriff may, upon lodgment and
from time to time after lodgment:
(a) require the party to deposit with the
Sheriff money in an amount fixed by the Sheriff to be applied in or towards
satisfaction of the Sheriff’s fees; or
(b) as to the whole or any part of the fees, take
an undertaking by the party’s solicitor to pay them instead of requiring a
deposit.
(2) Where a party required to make a deposit under
subrule (1) objects to the amount fixed by the Sheriff, the Court may, by
order, fix the amount to be deposited.
(3) The Sheriff may defer service or execution of any
process until a deposit is made or an undertaking is given in accordance with
this rule.
(4) Where it appears that the amount deposited under
this rule exceeds the fees of the Sheriff, the Sheriff must repay the excess to
the party depositing the money or to the party’s solicitor.
6 Liability
of solicitor
Where a party, by his solicitor, lodges with the
Sheriff any process for service or execution the solicitor shall be liable for
the fees of the Sheriff, whether or not the solicitor has given an undertaking
pursuant to paragraph 5 (1) (b).
7 Bill
(1) The Sheriff shall, on the request of a person
interested, furnish him with a bill.
(2) The Sheriff may serve a bill on any person
interested.
8 Taxation
(1) Subject to subrule (2), the Court may order that
fees be taxed.
(2) Where the Court orders that fees be taxed, an
application to proceed with the taxation shall be made by the Sheriff to a
taxing officer by motion in the proceeding.
9 Determination
(1) Where a bill is served on or furnished to a person
interested by the Sheriff, the amount of fees shown in the Bill shall, unless
the Court otherwise orders, be binding as between the Sheriff and the person
interested unless the person interested obtains an order for taxation under
rule 8.
(2) Where the fees are taxed pursuant to an application
by a person interested under rule 8, the amount fixed on taxation shall,
subject to any alteration on reconsideration review or appeal, be binding as
between the Sheriff and the person interested.
10 Default
by solicitor
Where in any proceeding a solicitor has given an
undertaking to pay, or is otherwise liable to pay, any fees of the Sheriff, and
the solicitor does not pay the fees within 7 days after the amount has become
binding under rule 9 as between the solicitor and the Sheriff, the Court may,
on motion in the proceeding by the Sheriff, order the solicitor to pay the fees
to the Sheriff.
Order 48 Workplace relations proceedings
Division 1 General
1 Definition
for Order 48
In this Order:
RAO Schedule means Schedule 1 to the
Workplace Relations Act.
Workplace Relations Act means the Workplace
Relations Act 1996.
2 Expressions
used in the Workplace Relations Act
Unless the contrary intention appears, an
expression used in this Order and in the Workplace Relations Act has the same
meaning in this Order as it has in the Workplace Relations Act.
3 Application
of Order 48
(1) This Order applies to a proceeding in the Court to
which the Workplace Relations Act applies.
(2) The other Orders of these Rules apply, so far as
they are relevant and not inconsistent with this Order, to a proceeding in the
Court to which the Workplace Relations Act applies.
Division 2 Unlawful
termination of employment
4 Application in relation to alleged
unlawful termination of employment (Workplace Relations Act s 663)
(1) This rule applies to an application by an employee
for an order in relation to an alleged unlawful termination of the employee’s
employment.
Note Section 665 of the Workplace
Relations Act states the orders the Court may make.
(2) The application must:
(a) be in accordance with Form 5; and
(b) be accompanied by a claim in accordance with
Form 5A; and
(c) have attached to it a certificate regarding
the failure, or likely failure, of conciliation issued by the Australian
Industrial Relations Commission under subsection 650 (2) of the Workplace
Relations Act.
Division 3 Rules to show cause
5 Definition
for Division 3
In this Division:
rule to show cause means a rule calling on a
person, or an organisation, to show cause why an order should not be made under
section 163, 164 or 164A, or subsection 167 (2) of the RAO Schedule in
relation to the person or organisation.
Note 1 Under section 163 of the RAO
Schedule, a member of an organisation may apply to the Court for an order
declaring that the whole or a part of a rule of the organisation contravenes
section 142 of the RAO Schedule (which states general requirements for rules),
or that the rules of the organisation contravene section 142 of the RAO
Schedule in a particular respect.
Note 2 Under section 164 of the RAO
Schedule, a member of an organisation may apply to the Court for an order
giving directions for the performance or observance of any of the rules of the
organisation by any person who is under an obligation to perform or observe the
rules.
Note 3 Under section 164A of the RAO
Schedule, a member of an organisation may apply to the Court for an order
directing 1 or more persons (who may be, or include, the person who has
breached the rule or rules) to do specified things that will, in the opinion of
the Court, as far as is reasonably practical, place the organisation in the
position in which it would have been if the breach of the rule or rules had not
occurred. The Court may make such an order if satisfied that a person who was
under an obligation to perform or observe the rule or rules of the organisation
has acted unreasonably in so breaching the rule or rules.
Note 4 Under subsection 167 (1) of
the RAO Schedule a person or organisation may apply to the Court for a
declaration as to the entitlement of a person to be admitted as a member of the
organisation or to remain a member of the organisation. Under subsection
167 (2) of the RAO Schedule, the Court may make an order to give effect to
a declaration made under that subsection.
6 Application
of Division 3
(1) This Division applies to an application for a rule
to show cause.
(2) However, this Division does not apply unless the
granting of a rule to show cause is necessary, under paragraph
324 (2) (a) or (q) of the RAO Schedule, for the Minister to authorise
payment of financial assistance to an applicant for an order under section 163,
164 or 164A, or subsection 167 (2) of the RAO Schedule.
7 Requirements of applications (RAO
Schedule s 163, 164, 164A and 167)
(1) An application may be made to a Judge ex
parte.
(2) The application must be accompanied by an affidavit
in accordance with subrule (3), (4) or (5).
(3) If the application is made under section 163 of the
RAO Schedule, the affidavit must state:
(a) the rule, or part of the rule, of the
organisation that is alleged to contravene section 142 of the RAO Schedule; and
(b) the ground on which the rule, or part of the
rule, is alleged to contravene the section; and
(c) the facts and other reasons relied on by the
applicant in support of the application.
(4) If the application is made under section 164 of the
RAO Schedule, the affidavit must state:
(a) the nature of the order sought by the applicant;
and
(b) each rule of the organisation the applicant
seeks to have performed or observed by a person who is under an obligation to
perform or observe the rule; and
(c) the ground relied on by the applicant to
establish the obligation of the person to perform or observe the rule.
(4A) If the application is made under section 164A of the
RAO Schedule, the affidavit must state:
(a) the nature of the order sought by the
applicant; and
(b) each rule of the organisation the breach of
which the application seeks to rectify; and
(c) the facts and other reasons relied on by the
applicant in support of the application.
(5) If the application is made under section 167 of the
RAO Schedule, the affidavit must state:
(a) the nature of the order sought by the applicant;
and
(b) each rule of the organisation on which the
application is based; and
(c) the facts and other reasons relied on by the
applicant in support of the application.
8 Form
of rule to show cause — Form 6
A rule to show cause must be in accordance
with Form 6.
9 Filing
of rule to show cause
If the Court grants a rule to show cause, the
applicant must file with the Court the rule and the supporting affidavit as
soon as practicable after the rule is granted.
Division 4 Inquiries and ballots in relation to registered organisations
10 Application
of Division 4
This Division applies to:
(a) an application, under section 200 of the RAO
Schedule, for an inquiry in relation to an election for an office in an
organisation, or branch of an organisation; or
(b) an application, under subsection 69 (1)
of the RAO Schedule, for an inquiry into an alleged irregularity in relation to
a ballot conducted under Part 2 of Chapter 3 of the RAO Schedule; or
(c) an application, under subsection 94 of the
RAO Schedule, for a ballot to be held to decide whether a constituent part of
an amalgamated organisation should withdraw from the organisation; or
(d) an application, under subsection 108 (1)
of the RAO Schedule, for an inquiry into an alleged irregularity in relation to
a ballot held under Part 3 of Chapter 3 of the RAO Schedule; or
(e) an application, under subsection
109 (1) of the RAO Schedule, for an order in relation to the withdrawal of
a constituent part of an amalgamated organisation from the organisation.
Note 1 Under regulation 82 of the Workplace
Relations (Registration and Accountability of Organisations) Regulations 2003,
an application mentioned in paragraph 10 (c) must be in accordance with
Form 2 of those Regulations.
Note 2 Under regulation 107 of the Workplace
Relations (Registration and Accountability of Organisations) Regulations 2003,
an application mentioned in paragraph 10 (e) must be in accordance with
Form 4 of those Regulations.
10A Form
of application for an inquiry or ballot
(1) An application mentioned in paragraph 10 (a) must:
(a) be in accordance with Form 50A; and
(b) be accompanied by an affidavit stating the
nature of the applicant’s claim and the material facts on which the claim is
based.
(2) An application mentioned in paragraph 10 (b) must:
(a) be in accordance with Form 50B; and
(b) be accompanied by an affidavit stating the
nature of the applicant’s claim and the material facts on which the claim is
based.
(3) An application mentioned in paragraph 10 (d) must:
(a) be in accordance with Form 50C; and
(b) be accompanied by an affidavit stating the
nature of the applicant’s claim and the material facts on which the claim is
based.
11 Duties
of District Registrar on receiving application
On receiving an application and any supporting
documents, the District Registrar must:
(a) sign and affix the stamp of the Court to the
application; and
(b) endorse on the application:
(i) the date, time and place fixed for
a directions hearing; and
(ii) if the Court or a Judge has
directed that a person be given notice of the application — the name and
address of the person; and
(c) provide the
applicant with a stamped copy of the application and a copy of any supporting
documents by:
(i) if the application was presented
to the Registry — giving them to the applicant; or
(ii) if the application was sent to the
Registry by post or document exchange — sending them to the applicant in
accordance with Order 1, subrule 5A (11); or
(iii) if the application was sent to the
Registry by facsimile transmission — sending them to the applicant in
accordance with Order 1, paragraph 5AB (4) (c); or
(iv) if the application was sent to the
Registry by electronic communication — sending them to the applicant in
accordance with Order 1, paragraph 5AC (5) (c).
12 Service
of application and supporting documents
(1) At least 2 days before the date fixed for the
directions hearing, the applicant must serve a stamped copy of the application,
and a copy of any supporting documents, on each other party (if any) to the
proceeding.
(2) The stamped copy of the application must:
(a) have endorsed on it the date, time and place
fixed for the directions hearing; and
(b) state that, if the party, or the party’s
counsel, solicitor or authorised representative, does not appear at the
directions hearing, the proceeding may be heard and orders may be made in the
absence of the party, or the party’s counsel, solicitor or authorised
representative.
13 Application
for interim orders
(1) This rule applies to:
(a) an application for an interim order to be
made, under section 204 of the RAO Schedule, in relation to an inquiry in
relation to an election for an office in an organisation, or a branch of an
organisation; or
(b) an application for an order to be made, under
subregulation 77 (1) of the Workplace Relations (Registration and
Accountability of Organisations) Regulations 2003, in relation to an
inquiry into an alleged irregularity in relation to a ballot conducted under
Part 2 of Chapter 3 of the RAO Schedule.
(2) An application may be made:
(a) ex parte; or
(b) in any other way directed by the Court or a
Judge.
14 Court
directions to issue subpoenas
(1) If the Court is of the opinion that an inquiry would
be assisted by the production of a document or other item, or by calling a
witness, the Court may direct the Registrar to issue a subpoena for the
production of the document or other item, or for the witness to attend the
inquiry.
(2) The Registrar must arrange for:
(a) service of each subpoena; and
(b) payment of attendance money and witness
expenses for each witness attending the inquiry.
Order 49 Proceedings for an offence
1 Prosecutions
(1) A prosecution for an offence shall be commenced by
summons upon information.
(2) The person bringing the prosecution shall be called
a prosecutor, and the person against whom the prosecution is brought shall be
called a defendant.
2 Form
of summons, Forms 51 and 52
(1) A summons shall:
(a) state the offence with which the defendant
is charged; and
(b) give particulars of the act or omission of
the defendant to which the prosecution relates.
(2) A summons and an information shall be in the forms
numbered 51 and 52 in Schedule 1.
3 Summons
in paragraphs
(1) A summons shall not be prolix and shall be divided
into paragraphs numbered consecutively.
(2) So far as convenient, each paragraph shall deal only
with one matter.
4 Appointment
of date
(1) The summons shall appoint a date on which the
defendant is to appear before the Court to answer the charge.
(2) Except where the defendant enters a plea of guilty
or the Court otherwise orders, on the day appointed under subrule (1), the
charge shall not be heard, but the Court shall:
(a) give any necessary directions as to the
conduct of the prosecution and defence; and
(b) fix a date for hearing or further directions.
Form
48
(3) If the defendant does not appear on the date
appointed pursuant to subrule (1), the Court may issue a warrant for his
arrest.
(4) The warrant shall be in the form numbered 48 in
Schedule 1.
5 Affidavits
as to fine or penalty
(1) Unless the Court otherwise directs, where the Court
is empowered to impose a fine or penalty under any Act, the prosecutor shall,
and the defendant may, file such affidavit evidence as each considers necessary
having regard to the terms of the relevant Act to assist the Court to determine
the appropriate fine or penalty.
(2) The provisions of Order 14 relating to affidavits
including requirement for cross‑examination apply in relation to affidavits
filed in accordance with subrule (1).
(3) This rule applies in a case where there has been a
plea of guilty or where after a finding of guilty the matter has been adjourned
to enable evidence as to the appropriate fine or penalty or where the defendant
proposes to plead guilty or not to deny the charge alleged in the summons and
has so advised the prosecutor at the directions hearing or within the time then
appointed.
Order 50 Case stated and questions reserved
1A Definition
for Order 50
In this Order:
Industrial Registrar:
(a) means the Industrial Registrar appointed
under section 67 of the Workplace Relations Act 1996; and
(b) includes a Deputy Industrial Registrar
appointed under section 75 of the Workplace Relations Act 1996.
1 Application
(1) A case to be stated, or a question to be reserved or
to be referred for the consideration of the Court, must be in the form of a
special case.
(2) The special case must:
(a) be divided into consecutively numbered
paragraphs; and
(b) state the facts concisely; and
(c) annex all documents necessary to enable the
Court to decide the questions raised by the special case.
(3) The Court may draw from the facts stated and the
documents annexed in the special case any inference, whether of fact or law,
which might have been drawn from them if proved at a trial.
2 Special
case to be prepared etc
Unless the Judge, Court, Tribunal, Commission,
Industrial Registrar or other authority stating the case or reserving the
question otherwise directs, the special case shall be:
(a) prepared in draft by the party having the
carriage of the proceeding after consultation with the other parties concerned
and shall contain an address for service of each of the parties concerned;
(b) settled by the Judge, Court, Tribunal, Commission,
Industrial Registrar or other authority stating the case or reserving the
question; and
(c) transmitted by the Judge, Court, Tribunal,
Commission, Industrial Registrar or other authority stating the case or
reserving the question, with four additional copies, to the Registry at the
proper place.
3 Setting
down for hearing
Where a special case has been referred, the
Registrar shall:
(a) set down the proceeding for a directions
hearing; and
(b) notify each party of the date appointed for
the directions hearing.
3A Setting
down for hearing (Workplace Relations Act 1996, s 82)
If a question is referred to the Court by
the Industrial Registrar under section 82 of the Workplace Relations Act
1996, the District Registrar must:
(a) set down the proceeding for a directions
hearing; and
(b) notify the Industrial Registrar, and each
party to the proceeding, of the date appointed for the directions hearing.
4 Party
having carriage of the proceedings
If a question is referred to the Court by a
Tribunal or the Australian Industrial Relations Commission, the party having
the carriage of the proceeding for the purpose of rule 2 must be:
(a) if the question is referred by the Tribunal
or the Commission at the request of a party — that party; and
(b) if the question is referred by a Tribunal of
its own motion — the person who made the decision to which the proceeding
before the Tribunal relates; and
(c) if the question is referred by the
Commission of its own motion — the party appointed by the Commission for
that purpose.
Order 51 Judiciary Act 1903 — section 78B
1 Notice
of a constitutional matter — Form 53
(1) Where a proceeding pending in the Court involves a
matter arising under the Constitution or involving its interpretation, within
the meaning of section 78B of the Judiciary Act 1903 the party whose
case raises the matter shall file a notice of a constitutional matter in the
Registry at the proper place.
(2) Notice of a constitutional matter shall state:
(a) specifically the nature of the matter; and
(b) the facts showing that the matter is one to
which subrule (1) applies.
(3) The notice of a constitutional matter shall be in or
substantially in the form numbered 53 in Schedule 1.
2 Notices
of a constitutional matter
The party whose case
raises the constitutional matter, or such other party as the Court may direct,
must file notice of a constitutional matter and serve a copy of the notice on
all other parties and the Attorneys‑General of the Commonwealth, the States,
the Australian Capital Territory and the Northern Territory:
(a) if the matter arises before the directions
hearing — not later than 2 days before the date of the directions hearing;
(b) if the matter arises at the directions
hearing — within such time as the Court or a Judge directs; or
(c) otherwise if the matter arises before the
date fixed for trial — not later than 10 days before that date.
3 Affidavit
of service
The party whose case raises the constitutional
matter shall file an affidavit of service of the notice of a constitutional
matter proving compliance with paragraph 2 (a), (b) or (c) not later than the
day before:
(a) the date appointed for the directions
hearing;
(b) the date ordered by the Court or a Judge at
the directions hearing; or
(c) the date fixed for trial.
4 Additional
papers for intervening Attorneys‑General
The party whose case raises the constitutional
matter shall provide copies of any additional papers filed in the matter to any
intervening Attorney‑General as soon as practicable after notice of the
intervention is given to the party.