Local Courts (Civil Claims) Rules 1988

Part 1 Preliminary

pt 1, rule 3: Am 23.8.1991; 18.12.1992; 28.7.1995; 22.11.1996; 19.10.2001.

pt 1, rule 8: Ins 23.8.1991.

1 Name of rules

These rules may be cited as the Local Courts (Civil Claims) Rules 1988.

pt 38B, div 2 (rules 1–7): Ins 19.10.2001.

2 Commencement

These rules take effect on the day on which Schedule 2 to the Local Courts (Civil Claims) Amendment Act 1987 commences.

Editorial note—

Schedule 2 to the Local Courts (Civil Claims) Amendment Act 1987 commenced on 1.7.1989. See Gazette No 37 of 31.3.1989, p 1603.

pt 38B, div 2 (rules 1–7): Ins 19.10.2001.

3 Interpretation

(1)  In these rules:

action means action in a court under the Act.

arbitrator means arbitrator appointed under section 5 (2) of the Arbitration (Civil Actions) Act 1983.

curator means:

(a)  in respect of a person:

(i)  the management of whose estate is, by the Protected Estates Act 1983 or by any order of the Supreme Court or the Guardianship Board under that Act, committed to the Protective Commissioner,

(ii)  of whose estate the Protective Commissioner has, in accordance with section 63 of that Act, undertaken the management, or

(iii)  in relation to whose property the Protective Commissioner is authorised as mentioned in section 66 (1) (a) of that Act,

the Protective Commissioner,

(b)  in respect of a person of whose estate a manager has been appointed by order of the Supreme Court or the Guardianship Board under section 22 or section 22A of the Protected Estates Act 1983—the manager appointed.

disable person means a minor or an incompetent person.

dismiss, in relation to any proceedings, means finally dispose of the proceedings, but (except where the proceedings consist of an appeal to a court) without prejudice to any right to commence fresh proceedings seeking the same, or substantially the same, relief.

document means any record of information, and includes:

(a)  anything on which there is writing,

(b)  anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them,

(c)  anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

(d)  a map, plan, drawing or photograph.

expert means a person who has specialised knowledge based on the person’s training, study or experience.

file, in relation to any proceedings, means lodge with the registrar of the court in which the proceedings are pending, for inclusion in the record of the court.

[District Court Act 1973 s 4 (1)]

incommunicate person means a person suffering from such a handicap of body or mind, by way of coma, paralysis or otherwise, whether or not induced by any drug or by medical or other treatment, that he or she is unable to receive communications respecting his or her property or affairs, or to express his or her will respecting his or her property or affairs.

incompetent person means:

(a)  a person who is not a minor and who is:

(i)  incapable of managing his or her affairs, or

(ii)  incommunicate, or

(b)  a minor who has a curator.

minor means person under the age of 18 years.

personal injuries includes any disease and any impairment of a person’s physical or mental condition.

place of business, in respect of a party, means a place of business of which the party is the master or one of the masters.

[District Court Rules 1973 Part 1 r 4 (1)]

proceedings means action or proceedings ancillary to an action.

proper court, in relation to any proceedings:

(a)  where there has been no change of venue in respect of the proceedings—means the court in which the proceedings were commenced,

(b)  where there has been only one change of venue in respect of the proceedings—means the court to which the venue was changed, or

(c)  where there have been 2 or more changes of venue in respect of the proceedings—means the court to which the venue was last changed.

[cf DCA s 4 (1)]

registrar, in relation to any proceedings, means the registrar of the proper court in relation to the proceedings.

statement of claim means ordinary statement of claim or statement of liquidated claim.

[DCR Pt 1 r 4 (1)]

the Act means the Local Courts (Civil Claims) Act 1970.

tutor means a next friend or guardian ad litem of a disable person.

(2)  A reference in these rules to a court is a reference to that court exercising civil jurisdiction under the Act and, with respect to any proceedings, is a reference to the proper court in relation to the proceedings.

(3)  A reference in these rules to:

(a)  the home court is a reference to the court from which is issued process returnable at, or for service or execution by the Sheriff’s officer or bailiff at, another court, or

(b)  a foreign court is a reference to the court at which process issued from the home court is returnable, or by the Sheriff’s officer or bailiff at which that process is to be served or executed.

[cf DCR Pt 1 r 4 (2)]

(4)  A reference in these rules to an address, other than an exchange box in a document exchange, is a reference to the address including the postcode number appropriate to that address.

[cf DCR Pt 1 r 4 (2A)]

(5)  The rules prescribed for the purposes of section 4 (3) of the Act are Part 11 rule 1 and Part 12 rules 2 and 3.

[DCR Pt 1 r 4 (3)]

(6)  Where under these rules a court or registrar may make an order or give any direction or leave or do any other thing, the court or registrar may make the order or give the direction or leave or do the thing on such terms and conditions (if any) as the court or registrar thinks fit.

[DCA s 6]

(7)  A function conferred on a court by these rules may be exercised:

(a)  in the case of matters relating to a court’s General Division—by a Magistrate or, if these rules so provide in respect of a particular matter, by the registrar, or

(b)  in the case of matters relating to a court’s Small Claims Division—by a Magistrate or an Assessor or, if these rules so provide in respect of a particular matter, by the registrar.

(8)  A reference in these rules to a stay of enforcement of a judgment includes a reference to a stay of the issue of:

(a)  an examination summons under section 41 (1), and

(b)  a warrant under section 42 (4),

of the Act in respect of the judgment debt.

[cf DCA s 4 (6)]

(9)  Any matter appearing in these rules in square brackets, being matter relating to:

(a)  the District Court Act 1973,

(b)  the District Court Rules 1973,

(c)  the Local Courts (Civil Claims) Rules,

(d)  the District Court (Fees) Regulations,

(e)  the Law Reform (Miscellaneous Provisions) Civil Claims Third Party Procedure Rule 1977, or

(f)  the Supreme Court Rules 1970,

shall be taken not to be part of these rules.

pt 38B, div 2 (rules 1–7): Ins 19.10.2001.

4 Repeal and transitional provisions

(1)  The Local Courts (Civil Claims) Rules are repealed.

(2)  A step validly taken, or any process issued, under the Local Courts (Civil Claims) Rules before the commencement of these rules shall be as valid as if taken or issued under these rules and shall be deemed, subject to subclause (3), to have been taken or issued under these rules.

(3)  These rules apply to any step taken, or process issued, in any proceedings after the commencement of these rules, and, in respect of an action which was commenced, but not completed, before that commencement, so apply as if:

(a)  an ordinary summons issued before that commencement were an ordinary statement of claim lodged under Part 5 rule 1 (1) (a),

(b)  a special summons issued before that commencement were an ordinary statement of claim lodged under Part 5 rule 1 (1) (a),

(c)  a default summons issued before that commencement were a statement of liquidated claim lodged under Part 5 rule 1 (1) (b),

(d)  a notice of defence filed before that commencement were a notice of grounds of defence filed under Part 9 rule 1,

(e)  a defence by way of set-off pleaded before that commencement were a cross-claim brought under section 15 of the Act,

(f)  an order for nonsuit made before that commencement were an order striking out proceedings made under Part 21 rule 3,

(g)  an order made under section 40 of the Act that a judgment debt be paid by instalments were an order that the judgment debt be paid by instalments made under Part 27 rule 2, and

(h)  an order for judgment made under section 25A of the Act were an order for judgment made under Part 10 rule 1.

pt 38B, div 2 (rules 1–7): Ins 19.10.2001.

5 Adherence to and relief from rules [cf DCR Pt 1 r 5]

(1)  Subject to subrule (2), the practice in a court shall be the practice provided by the Act or these rules.

(2)  A court may if it thinks fit, on terms, dispense with compliance with any of the requirements of these rules, either before or after the occasion for the compliance arises.

pt 38B, div 2 (rules 1–7): Ins 19.10.2001.

6 Procedure wanting or in doubt [DCR Pt 1 r 5A]

(1)  Where a person desires to commence proceedings or take any step in any proceedings, and the manner or form of procedure is not prescribed by the Act or these 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, on application by that person or of its own motion, give directions.

(2)  Proceedings 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.

pt 38B, div 2 (rules 1–7): Ins 19.10.2001.

7 Seal of a court [cf DCR Pt 1 r 6]

A registrar shall seal or stamp with the seal of the court any order, notice, warrant, certificate, judgment or process, or any copy thereof, made, given or issued by the registrar and not signed by the registrar, and the copies for service of any document filed before it is served.

pt 38B, div 2 (rules 1–7): Ins 19.10.2001.

8 Application of rules in General and Small Claims Divisions

These rules apply to actions in both the General Division and the Small Claims Division of a court except where the contrary intention appears.

Part 2 Administration

pt 2, rule 2: Am 22.12.1989; 21.12.1990; 2.8.1991; 1.9.1993; 23.12.1994; 22.12.1995; 29.3.1996; 5.7.1996; 20.12.1996; 30.10.1998; 29.10.1999; 30.6.2000. Rep 1.9.2000.

pt 2, rule 3: Ins 23.12.1994.

1 Control of registry [ Local Courts (Civil Claims) Rules r 38D]

Subject to the Act and these rules and to any direction given by the Chief Magistrate, the registrar of a court has the control and direction of the procedures to be followed, for the purposes of the Act and these rules, in the registry attached to that court.

2 (Repealed)

3 Pro bono cases

(1)  The taking of the fee for the filing of any statement of claim (or notice of cross-claim) on behalf of a pro bono party to proceedings is to be postponed until judgment has been given in the proceedings.

(2)  The fee is not to be taken at all, or if taken must be remitted, if in relation to the claim (or cross-claim):

(a)  judgment is against that party,

(b)  judgment is in favour of that party, but damages are not awarded (or only nominal damages are awarded) in his or her favour and costs are not awarded in his or her favour.

(3)  A registrar must not refuse to file or issue any document relevant to proceedings merely because, in accordance with this rule, a fee has not been taken for the filing of any statement of claim (or notice of cross-claim) on behalf of a pro bono party to those proceedings.

(4)  Under this rule, a party is to be treated as a pro bono party to proceedings if he or she is being represented under the pro bono scheme of the Law Society of New South Wales or the pro bono scheme of the New South Wales Bar Association and a solicitor (in the case of the Law Society’s scheme), or a barrister (in the case of the Bar Association’s scheme), acting for the party:

(a)  certifies in writing to the registrar with whom the statement of claim (or notice of cross-claim) is lodged on behalf of the party that the party is being so represented, and

(b)  undertakes in writing to the registrar to pay the filing fee for that document if, at the conclusion of the proceedings, subrule (2) does not apply.

Part 3 Venue

pt 3, rule 4: Am 27.4.1990; 17.6.1994.

pt 3, rules 6–8: Am 23.8.1991.

pt 3, rules 9, 10: Ins 23.8.1991. Am 22.9.2000.

pt 3, rule 11: Ins 23.8.1991. Subst 28.5.1993.

1 Authentication of order transferring to District Court [LC (CC) R r 7]

For the purposes of section 21B (5) of the Act, a copy of an order for removal is authenticated if it is certified by a registrar of the District Court to be such a copy.

2 Where actions may be commenced [cf DCR Pt 2A r 1 (1)]

Subject to these rules and to any provision made by or under any Act, an action may be commenced in any court.

3 Where proceedings may be heard [cf DCR Pt 2A r 2]

(1)  Except where otherwise provided by the Act or these rules, an action, and any proceedings ancillary to an action, shall be heard and disposed of by the proper court in relation to the action.

(2)  On application by a party to an action or of its own motion, a court may, if it thinks fit, order that any or all proceedings ancillary to the action be heard and disposed of by a court specified in the order, notwithstanding that the court so specified is not the proper court in relation to the action.

(3)  Where a court makes an order under subrule (2) in respect of any ancillary proceedings it may give to the registrar of the court specified in the order directions as to the hearing of the ancillary proceedings.

4 Objection by defendant

(1)  In this rule:

appropriate court, in relation to an action, means a court held for any one of the following districts:

(a)  the district in which the defendant is resident,

(b)  the district in which the defendant was resident at the time the cause of action arose,

(c)  the district in which the defendant has his or her place of business,

(d)  the district in which the defendant had his or her place of business at the time the cause of action arose,

(e)  the district in which the defendant has his or her place of employment,

(f)  the district in which the defendant had his or her place of employment at the time the cause of action arose,

(g)  the district in which the cause of action arose.

defendant includes, where there are 2 or more defendants, any one of those defendants.

(2)  Where the court in which an action is commenced is not an appropriate court, the defendant may, if the defendant files the notice of grounds of defence under Part 9 rule 1 or 6 within 28 days after service on the defendant of the statement of claim in the action, file within that time an affidavit by the defendant or the defendant’s solicitor or agent:

(a)  specifying all of the appropriate courts, and

(b)  specifying one of the courts specified pursuant to paragraph (a) as the court which the defendant desires to be the venue of the action.

(3)  The registrar shall, as soon as practicable after the filing of an affidavit under subrule (2), give or send a copy of the affidavit to the plaintiff or the plaintiff’s solicitor.

(4)  Where the defendant files the notice of grounds of defence and an affidavit in accordance with subrule (2), the plaintiff may, within 28 days after service on the plaintiff of a copy of the affidavit, file:

(a)  a notice, signed by the plaintiff or the plaintiff’s solicitor or agent, selecting as the venue of the action one of the courts specified in the defendant’s affidavit, or

(b)  an affidavit by the plaintiff or the plaintiff’s solicitor or agent stating that a notice under paragraph (a) is not filed on the ground that:

(i)  the court in which the action was commenced is an appropriate court,

(ii)  at least one of the courts specified as appropriate courts in the defendant’s affidavit is not an appropriate court, or

(iii)  not all of the appropriate courts were specified in the defendant’s affidavit,

and shortly stating and verifying the facts on the basis of which that ground is asserted.

(5)  The filing of a notice in accordance with subrule (4) (a) has the same effect as if the court had ordered a change of venue under section 18 of the Act to the court selected in the notice.

(6)  A registrar with whom an affidavit is filed under subrule (4) (b) shall as soon as practicable submit all documents filed in the action to a Magistrate, who shall:

(a)  direct that the proper court in relation to the action shall remain unchanged,

(b)  order that such court as the Magistrate thinks fit and as is specified in the order (whether or not that court is an appropriate court) shall be taken to be the proper court in relation to the action, or

(c)  give directions for bringing the parties before a court to argue the question of whether or not a change of venue should be ordered.

(7)  An order made under subrule (6) (b) has the same effect as if it were an order for a change of venue under section 18 of the Act to the court specified in the order.

(8)  Where the plaintiff files neither a notice nor an affidavit in accordance with subrule (4), the court shall be taken to have, at the expiration of the time prescribed under that subrule, ordered a change of venue under section 18 of the Act to the court specified by the defendant pursuant to subrule (2) (b) as the court which the defendant desires to be the venue of the action.

(9)  Nothing in this rule affects the right of any party to an action to apply for a change of venue under section 18 of the Act.

5 Change of venue under sec 18 [DCR Pt 2A r 4]

(1)  A court may make an order under section 18 of the Act if in all the circumstances of the case it appears to the court expedient to do so.

(2)  Where the venue of an action or proceedings ancillary to an action is changed under section 18 of the Act, the registrar of the court from which the venue is changed shall forthwith forward the whole record of the action to the registrar of the court to which the venue is changed.

(3)  As soon as practicable after receipt by a registrar of any record of an action forwarded under subrule (2) the registrar shall give or send to the parties notice of the receipt.

(4)  Where the venue of an action or proceedings ancillary to an action is changed from one court to another court, the action or proceedings shall go to a hearing according to the procedures prescribed in respect of actions or proceedings of the same class for hearing in the other court.

6 Adjournment to another court [DCR Pt 2A r 5]

A Magistrate or Assessor may, if the Magistrate or Assessor thinks fit, direct that proceedings commenced before the Magistrate or Assessor at one court be continued before the Magistrate or Assessor at another court at which the Magistrate or Assessor is authorised to sit.

7 Chambers [DCR Pt 2A r 6]

(1)  A Magistrate, Assessor or registrar in chambers may, in respect of any proceedings, give any judgment or decision, or make any order, which the Magistrate, Assessor or registrar could lawfully give in court and which the Magistrate, Assessor or registrar considers may be properly made or given in chambers, whether those chambers are situated at the proper court in relation to those proceedings or at any other court.

(2)  A Magistrate, Assessor or registrar shall not proceed in chambers under subrule (1) unless the Magistrate, Assessor or registrar is satisfied that all parties appearing and all other persons properly interested have adequate notice of the intention to so proceed and will have adequate notice of any judgment decision or order that the Magistrate, Assessor or registrar is likely to give or make in chambers.

8 Reserved decision [DCR Pt 2A r 7, Pt 31 r 10]

(1)  Where in any proceedings a Magistrate or Assessor reserves a judgment or decision on any question of fact or law, the Magistrate or Assessor may:

(a)  give the judgment or decision:

(i)  in court at the proper court in relation to those proceedings,

(ii)  in court at any other court at which the Magistrate or Assessor is authorised to hear or dispose of those proceedings, or

(iii)  in chambers in accordance with rule 7, or

(b)  draw up in writing the judgment or decision, sign it and forward it to the registrar of that proper court.

(2)  Where a registrar receives a judgment or decision forwarded under subrule (1) (b), the registrar shall, after giving at least 24 hours’ notice to the parties to the proceedings, read the judgment or decision at the court of which the registrar is registrar at a convenient time specified in the notice.

(3)  A judgment or decision given by a Magistrate or Assessor under subrule (1) (a) or read by a registrar under subrule (2) takes effect on the day on which it is so given or read and is as valid as if given by the Magistrate or Assessor at the hearing of the proceedings to which the judgment or decision relates.

9 Small Claims Division

(1)  If the amount claimed in an action and the amount claimed in any related cross-claim are each not more than $10,000, the action and any such cross-claim are each to be heard and determined in a court’s Small Claims Division unless the court orders otherwise.

(2)  Such an order may not be made unless the court is of the opinion that the issues likely to arise in the action or cross-claim are so complex or difficult as to law or fact, or that the action or cross-claim is of such unusual importance, that it should not be heard or determined in the court’s Small Claims Division.

(3)  Such an order may be made:

(a)  on the court’s own motion or on the application of any of the parties, and

(b)  at any time before judgment in the action concerned.

(4)  An application for the making of an order under this rule:

(a)  may be made by the plaintiff when the statement of claim in the action is lodged with the registrar, or

(b)  may be made to the court by any of the parties, in accordance with Part 15, at any time before the date fixed for the hearing of the action, or

(c)  may be made to the Magistrate or Assessor hearing the action by any of the parties, on reasonable notice to the other parties, at any time before judgment in the action concerned.

(5)  The jurisdiction of the court in relation to the making of an order under this rule may be exercised by the registrar if the application for the making of the order has been made as referred to in subrule (4) (a).

(6)  If the registrar makes an order under this rule as referred to in subrule (5), the registrar is to endorse the relevant statement of claim with the words “REMOVED INTO THE GENERAL DIVISION BY ORDER OF THE REGISTRAR”.

(7)  A court, sitting in its General Division, may make orders in respect of the continuance of an action that has been removed into that Division by virtue of an order under this rule (including orders for the amendment or substitution of any document filed in the action).

pt 9, div 3 (rule 9): Ins 7.8.1998.

10 Transfer of actions to the Small Claims Division

(1)  If the amount claimed in an action in a court’s General Division and the amount claimed in any related cross-claim are each not more than $10,000, the court may order that the action and any such cross-claim be heard and determined in the court’s Small Claims Division.

(2)  Such an order may be made:

(a)  on the court’s own motion or on the application of any of the parties, and

(b)  at any time before judgment in the action concerned.

(3)  An application for the making of an order under this rule may be made by any of the parties, in accordance with Part 15, at any time before the date fixed for the hearing of the action.

11 Applications concerning judgments in the Small Claims Division

(1)  Any application to a court concerning an action in respect of which judgment has been given or entered up in the court’s Small Claims Division must be heard and determined:

(a)  in the case of an application to set aside a judgment which was given after a hearing to which the court proceeded under Part 21 rule 2 (1) (a)—in the court’s Small Claims Division, and

(b)  in any other case—in the court’s General Division.

(2)  Where a court sitting in its General Division makes an order in respect of an application referred to in subrule (1), the court shall not order any party to pay costs in respect of the application in an amount greater than the amount which the court would have been able to order if the application had been heard and determined in the court’s Small Claims Division.

Part 4 Time

1 Reckoning of time [DCR Pt 3 r 1]

(1)  Any period of time fixed by the Act or these rules for the doing of any act in or in connection with any proceedings, or fixed by any judgment or order or by any document in any proceedings, 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 for the proper court in relation to the proceedings in which the period is to be reckoned is closed, that day shall be excluded.

(4)  Where the last day for doing a thing is a day on which the registry for the proper court in relation to the proceedings in which the thing is to be done is closed, the thing may be done on the next day on which the registry is open.

2 Extension and abridgement [DCR Pt 3 r 2]

(1)  A court may, on terms, by order extend or abridge any time fixed by these rules or by any judgment or order.

(2)  A court may extend time under subrule (1) after as well as before the time expires, whether or not an application for the extension is made before the time expires or at all.

(3)  The period within which a person is required by these rules or by any order to serve, file or amend any document may be extended by consent without an order for extension.

3 Fixing time [DCR Pt 3 r 3]

Where no time is fixed by the Act or these rules or by any judgment or order of a court for the doing of any thing in or in connection with any proceedings, the court or registrar may, by order, fix the time within which the thing is to be done.

Part 5 Commencement of actions

pt 5, rule 1: Am 18.12.1992.

pt 5, rule 2: Am 9.6.1989; 23.8.1991; 22.9.2000.

1 Statement of claim [DCR Pt 5 r 6]

(1)  An action shall be commenced by the lodging by the plaintiff with a registrar:

(a)  except in the case of an action for the recovery of a debt or liquidated demand—of an ordinary statement of claim, or

(b)  in the case of an action for the recovery of a debt or liquidated demand—of an ordinary statement of claim or a statement of liquidated claim.

(2)  In subrule (1), a reference to an action for the recovery of a debt or liquidated demand includes a reference to:

(a)  an action for the recovery of a debt or liquidated demand in which the plaintiff also claims, in accordance with these rules, interest, whether under section 39A of the Act or otherwise,

(b)  an action for the recovery of the cost of repairs to (or the value of, less any salvage value of), and any towing of, a motor vehicle within the meaning of the Motor Accidents Act 1988 or a trailer within the meaning of that Act, where the repairs (or the loss of the vehicle or trailer) and towing are a consequence of damage alleged to have been sustained as a result of the negligence of the defendant or the defendant’s servant or agent, or

(c)  an action for the recovery of the cost of repairs to (or the value of, less any salvage value of), property other than a motor vehicle or trailer, where the repairs (or the loss of the property) are, or is, a consequence of damage alleged to have been sustained as a result of the negligence of the defendant or the defendant’s servant or agent in driving or riding a motor vehicle within the meaning of the Motor Accidents Act 1988 or in controlling a trailer within the meaning of that Act.

2 Contents

(1)  In this rule:

(a)  a reference to the plaintiff is, in respect of an action in which there is more than one plaintiff, a reference to all of the plaintiffs, and

(b)  a reference to the defendant is, in respect of an action in which there is more than one defendant, a reference to all of the defendants.

(2)  A statement of claim lodged to commence an action shall be signed by the plaintiff or the plaintiff’s agent, or, where the plaintiff sues by a solicitor, by or on behalf of the solicitor in accordance with these rules, and shall contain:

(a)  a statement of each cause of action in respect of which the action is brought, and a statement of the amount of debt or damages claimed in respect of each such cause of action,

(b)  where a plaintiff sues or a defendant is sued in a representative capacity, particulars of that capacity,

(c)  where a plaintiff sues as assignee of a debt or other legal chose in action, the fact that the plaintiff is such an assignee, particulars of the assignment, and the name, address and occupation of the assignor,

(d)  in an action for detention of goods, a description of the property alleged to be detained, and a statement of its value,

(e)  where the plaintiff intends to claim interest, whether under section 39A of the Act or otherwise, a statement that that interest will be claimed, and the amount of that interest calculated to the date of issue of the statement of claim, or particulars of the period or periods for which, the rate or rates at which, and the amount or amounts on which, interest is intended to be claimed,

[cf DCR Pt 5 r 6A]

(f)  the full name, and the full address of the residence or place of business, of the plaintiff,

(g)  the full name of, and the full address at which service is to be effected on, the defendant to whatever extent these matters are known to the plaintiff,

(h)  where the full name of a defendant is not, but the sex of that defendant is, known to the plaintiff, the sex of that defendant,

(i)  where a defendant is a company registered under the Companies (New South Wales) Code, the address of the registered office of that defendant, so described,

(j)  an address for service as referred to in Part 7 rule 8, and

(k)  if the amount claimed in the action is not more than $10,000, either the words “SMALL CLAIMS DIVISION” or the words “THE PLAINTIFF APPLIES FOR THE REMOVAL OF THIS ACTION INTO THE GENERAL DIVISION”.

(3)  A statement of claim shall have subscribed to it:

(a)  where the plaintiff sues by a solicitor, the name, address and telephone number of the solicitor, and

(b)  where the plaintiff sues by a solicitor and that solicitor has another solicitor as agent in the action, the name, address and telephone number of the agent.

(4)  Where it appears from a statement of claim that the plaintiff sues by a solicitor:

(a)  the solicitor shall, on request in writing by a defendant, declare in writing whether the statement of claim was lodged by the solicitor, and

(b)  if the solicitor declares in writing that the statement of claim was not lodged by the solicitor, the court may, on application by the defendant, stay proceedings in the action.

[DCR Pt 5 r 2]

3 Filing and copies [cf DCR Pt 5 r 3]

(1)  A statement of claim shall be lodged in duplicate with the registrar of the court in which it is sought to commence the action to which the statement of claim relates, together with as many copies of the statement of claim as there are defendants to be served.

(2)  Where a statement of claim lodged complies with these rules, the original of the statement of claim shall be filed by the registrar and a sufficient number of copies for service and proof of service shall be sealed by the registrar and, at the request of the plaintiff, forwarded to a Sheriff’s officer or bailiff or returned to the plaintiff.

(3)  Each action commenced in a court shall be separately numbered by the registrar, and the registrar shall endorse the number allotted to an action:

(a)  on the original and every copy of the statement of claim in the action filed or sealed by the registrar, or

(b)  in the case of an action transferred from the District Court or another court, or the venue of which is changed from another court, on every document lodged with the registrar for the commencement of the action in the court of which that registrar is registrar.

(4)  A new series of numbers shall be commenced at the beginning of each calendar year.

4 Time of commencement

Subject to section 21G (1) of the Act, an action is commenced when the statement of claim in respect of the action is filed.

5 Validity for service [DCR Pt 5 r 5; cf LC (CC) R rr 81, 82]

(1)  For the purposes of service, a statement of claim is valid for 2 years from the date on which it is filed or such further period as the court may direct.

(2)  Nothing in this rule prevents the court from making an order striking out an action on the ground of undue delay by the plaintiff in serving the statement of claim.

(3)  Nothing in this rule prevents a plaintiff from commencing a fresh action by lodging another statement of claim.

Part 6 Causes of action and parties

pt 6, rule 8: Am 22.11.1996.

1 Joinder of causes of action [DCR Pt 7 r 1]

A plaintiff may, in one action, sue the same defendant in respect of more than one cause of action:

(a)  where the plaintiff sues, and the defendant is alleged to be liable, in the same capacity in respect of all the causes of action,

(b)  where the plaintiff sues, or the defendant is alleged to be liable, in the capacity of executor of the will, or administrator of the estate, of a deceased person in respect of one or more of the causes of action, and in the defendant’s personal capacity but with reference to the estate of the same deceased person in respect of all other causes of action, or

(c)  where the court gives leave so to do.

2 Joinder of parties generally [DCR Pt 7 r 2]

Two or more persons may be joined as plaintiffs or defendants in any action:

(a)  where:

(i)  if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and

(ii)  all rights claimed in the action (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 [DCR Pt 7 r 3]

(1)  Where, in any action, the plaintiff claims an amount to which any other person is entitled jointly with the plaintiff:

(a)  all persons so entitled shall be parties to the action, and

(b)  any of them who does not consent to being joined as a plaintiff shall be made a defendant.

(2)  Subrule (1) applies subject to any Act and subject to section 62 of the Bankruptcy Act 1966 of the Commonwealth, and applies unless the court gives leave to the contrary.

4 Leave under rules 1–3 [DCR Pt 7 r 4]

(1)  A court may grant leave under rule 1 or 2 before or after the joinder and may grant leave under rule 3 (2) before or after the non-joinder.

(2)  A plaintiff may apply for leave under rule 1, 2 or 3 (2) either before or after lodging the statement of claim and may apply without serving notice of the motion on any person on whom the statement of claim has not been served.

5 Common liability [DCR Pt 7 r 5]

(1)  Where, in any action, a defendant is jointly liable with some other person and also severally liable, that other person need not be made a defendant in the action.

(2)  Where the persons are jointly, but not severally, liable under a contract, and an action is commenced against some but not all of those persons in respect of that contract, the court may, on the application of any defendant in the action, by order stay the action until the other persons so liable are added as defendants.

6 Inconvenient joinder [DCR Pt 7 r 6]

Where any joinder of parties or causes of action may embarrass or delay hearing of an action or is otherwise inconvenient, the court may order separate hearings or make such other order as the court thinks fit.

7 Misjoinder and non-joinder of parties [DCR Pt 7 r 7]

(1)  An action 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 action determine the issues or questions in dispute so far as they affect the rights and interests of the parties.

8 Addition of parties [DCR Pt 7 r 8]

(1)  Where a person who is not a party to an action:

(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 action may be effectually and completely determined and adjudicated upon,

the court, on application by the person or by any party or of its own motion may, on terms, order that the person be added as a party and make orders for the further conduct of the action.

(2)  A person shall not be added as a plaintiff unless the person has consented in writing to be so added.

9 Removal of parties [DCR Pt 7 r 9]

Where a party:

(a)  has been improperly or unnecessarily joined, or

(b)  has ceased to be a proper or necessary part,

the court, on application by any party or of its own motion, may, on terms, order that he or she cease to be a party and make orders for the further conduct of the action.

10 Death, transmission etc [DCR Pt 7 r 10]

(1)  Where a party dies or becomes bankrupt but a cause of action in the action survives, the action 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 rearrangement of parties and may make orders for the further conduct of the action.

(3)  The court may act under subrule (2) on application by a party or by a person to whom the interest or liability passes or of its own motion.

11 Further conduct of action [DCR Pt 7 r 11]

(1)  Without limiting the generality of the powers of the court under rules 8–10, orders under those rules for the further conduct of the action may include orders relating to:

(a)  service of the order and other documents in the action,

(b)  amendment,

(c)  the filing of notice of grounds of defence by added defendants, and

(d)  substitution of one party for another party or a former party.

(2)  Where the court orders that a party be substituted for another party or a former party, all things done in the action 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 the filing of notice of grounds of defence by the old party shall not dispense with the filing of notice of grounds of defence by the new.

(3)  Subject to subrule (2), where a party is added pursuant to an order under rule 8 or 10, the date of commencement of the action so far as concerns the party is the date of filing of the statement of claim amended so as to add that party as a party or, where an amended statement of claim is not filed, the date of the amendment adding that party as a party.

12 Failure to proceed after death of party [DCR Pt 7 r 12]

(1)  Where:

(a)  a party dies but a cause of action in the action survives the death, and

(b)  an order under rule 10 for the addition of a party in substitution for the deceased party is not made within 3 months after the death,

the court may, on application by a party or by a person to whom liability on the cause of action survives on the death, 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 action be dismissed so far as concerns any claim on the cause of action for or against the person to whom the cause of action or the liability on the cause of action, 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 action.

13 Executors and administrators [DCR Pt 7 r 12A]

An executor or administrator may sue or be sued in any action in like manner as if the executor or administrator were a party suing or being sued in his or her own right.

14 Deceased persons [DCR Pt 7 r 13]

(1)  Where in any action 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 action and that the deceased person has no personal representative, the court may, on the application of any party:

(a)  order that the action 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 action.

(2)  An order under subrule (1), and any judgment or order subsequently given or entered up or made in the action, 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 action.

(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.

15 Conduct [DCR Pt 7 r 14]

The court may give the conduct of the whole or any part of any action to such person as it thinks fit.

Part 7 Service

pt 7, rule 19: Subst 9.6.1989. Rep 22.9.1995.

pt 7, rule 20: Ins 16.12.1994.

1 Definitions [DCR Pt 8 r 1]

In this Part:

copy means a true copy of a document to be served and, where the document is filed before service, means a true copy of the document sealed with the seal of the court.

party means the person to be served with a document.

service means service of a document required or permitted by the Act or these rules or any order of the court to be served in the conduct of any proceedings.

2 Who may serve process [DCR Pt 8 r 2; cf LC (CC) R r 67]

Except where otherwise provided by or under any Act or in these rules, service may be effected by any person over the age of 16 years.

3 Mode of service [DCR Pt 8 r 3]

(1)  Service may be personal, but need not be personal unless required by these rules or by any order.

(2)  Personal service may be effected by delivering a copy to the party personally.

(3)  A copy may be delivered to a person by handing it to the person or by leaving it in the person’s presence and informing the person of its nature.

(4)  Except where personal service is required, service may be effected by delivering a copy at the residence or place of business of the party to a person apparently not less than 16 years old and apparently residing at that residence or employed at that place of business.

(5)  It is not necessary to the regular service of any document that the original of the document be produced to any person.

4 When service may not be effected [cf DCR Pt 8 r 4]

(1)  Service may not be effected on Christmas Day or Good Friday.

(2)  A Sheriff’s officer or bailiff shall not be required to effect service on any Saturday, Sunday or other holiday.

5 Doubtful service [DCR Pt 8 r 5]

(1)  Where service of any document has not been personal, and the court or registrar is satisfied on the evidence before the court or registrar that the service did not come to the knowledge of the party within a reasonable time, or on that evidence is in doubt, the court or registrar shall not allow any fresh step in the proceedings to be taken against the party, but shall adjourn or strike out the proceedings, or order fresh process to issue, as to the court or registrar may seem just.

(2)  Where it is impracticable for any reason to effect service of any document, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of the party, the court may, if it thinks fit, by order direct that the service be deemed to have been effected on a date specified in the order.

(3)  Where a party lodges any document for filing in reply to a document alleged to have been served on the party, the party shall be taken to have waived any objection the party may have to the service unless the party lodges and serves notice of the objection at the time when the party lodges the document.

6 Service on solicitor—statement of claim [cf DCR Pt 8 r 6]

Where a solicitor makes on a copy of a statement of claim a note that the solicitor accepts service of the statement of claim on behalf of any defendant, the statement of claim shall be taken to have been duly served on that defendant on the date on which a copy of the statement of claim was delivered to the solicitor or left at the solicitor’s office.

7 Service on solicitor—other documents [DCR Pt 8 r 7]

(1)  This rule does not apply to or in respect of the service of any statement of claim, examination summons or document as to which personal service is required.

(2)  Where a party has, on the record of the court, a solicitor acting for the party, delivery of a copy to the solicitor, or leaving a copy at the solicitor’s office, or sending a copy by post addressed to the solicitor at the solicitor’s office, shall be taken to be good service on the party.

8 Address for service [DCR Pt 8 r 8]

(1)  The first document lodged by a party for filing in an action shall contain the address for service of the party.

(2)  An address for service shall be the address of a place at which documents in the action in which the address is notified may, during ordinary business hours, be left for the person whose address for service it is, and to which documents in the action may be posted for the person.

(3)  The address for service in any action of a person who has, on the record of the court, a solicitor acting for the person in the action shall be the office of the solicitor, or of the solicitor’s agent in the place where the proper court in relation to the action is situated.

(4)  A person may change the person’s address for service by filing and serving a notice of the change showing the new address for service.

9 Service at address for service [DCR Pt 8 r 9]

(1)  This rule does not apply to or in respect of the service of any statement of claim, examination summons or document as to which personal service is required.

(2)  Where a person notifies an address for service in any document filed by the person leaving a copy at, or sending a copy by post addressed to the person at, that address shall be taken to be good service on the person.

(3)  Where the address for service of a person to be served is the office of a solicitor who has an exchange box in a document exchange, in the State, of Australian Document Exchange Pty Limited, leaving a copy, addressed to that solicitor, in that exchange box or at another exchange box for transmission to that exchange box shall be taken to be good service on the person on a day 2 days after the copy is so left.

10 Husband and wife [DCR Pt 8 r 10]

(1)  Where husband and wife are parties to any action, service on one of them shall not have effect as service on the other unless the court otherwise orders.

(2)  Subrule (1) does not limit the operation of rule 3 (4).

11 Prisoner [cf DCR Pt 8 r 11]

Where a person confined in a prison is a party, personal service on the person may be effected by delivering a copy at the prison to the officer in charge of the prison.

12 Corporation [DCR Pt 8 r 12]

Where a party is a corporation and no provision of or under any Act regulates service on it, personal service may be effected by delivering a copy to the mayor, chairman or president of the corporation, or to the town clerk, secretary, treasurer or other similar officer of the corporation.

13 Where party “keeps house” [DCR Pt 8 r 13]

Where a party or other person keeps the place of residence or place of business of a party closed, or by any means prevents access being obtained to that place, and remains in that place in order to obstruct or hinder the delivering to the party or other person of a copy which would take effect as service on the party, service on the party may be effected by:

(a)  placing the copy in the mail-box appropriate to, or affixing the copy on any outer door of, the place of residence or place of business or, if access cannot be obtained to any such mail-box or door, affixing the copy on some part of the place of residence or place of business or on any fence or wall surrounding it, as near as practicable to the principal door or entrance, and

(b)  within 24 hours after placing or affixing the copy sending by post to the party at the place of residence or place of business a notice informing the party of the placing or affixing.

14 Where violence threatened [DCR Pt 8 r 14]

Where the person attempting service is prevented by the violence or threat of violence of any person from delivering a copy for the purpose of effecting service, the person attempting service may deliver the copy by leaving it as near as practicable to the person to whom it was intended to be delivered.

15 Service under contract [DCR Pt 8 r 15]

Where a party has, before or after the commencement of any proceedings, agreed that any document in the proceedings may be served on the party or on some other person on the party’s behalf in a manner or at a place specified in the agreement, service in accordance with the agreement shall be sufficient service on the party.

16 Substituted service [DCR Pt 8 r 16]

(1)  Where for any reason it is impracticable to effect service of any document in any of the modes prescribed for that service, the court may, on application supported by an affidavit showing grounds, by order direct 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 party.

(2)  Where the court makes an order under subrule (1) it may order that service be taken to be effected on the happening of any specified event or on the expiry of any specified time.

17 Identity [DCR Pt 8 r 17]

For the purposes of the proof of service, evidence of a statement by a person of the person’s identity, or that the person holds some office, is evidence of the person’s identity or that the person holds the office, as the case may be.

18 Service by Sheriff’s officer or bailiff

(1)  Where a party requires that process issued on the party’s behalf be served by an officer of a court, it shall be served by the Sheriff or by the bailiff at the nearest court to the place of service, unless the registrar of the home court shall, on the grounds of greater convenience or reduced costs, direct that the process be served by the Sheriff or by another bailiff.

(2)  A person (other than a registrar) requiring any process to be served by an officer of a court:

(a)  shall make the requirement of the registrar of the home court,

(b)  shall, when requiring service, deposit with that registrar, unless that registrar otherwise directs, a sum of money sufficient to meet the probable amount of the person’s liability under paragraph (c), and

(c)  is liable to the registrar for any fees properly incurred by the Sheriff’s officer or the bailiff in serving or attempting to serve the process, but the liability shall be reduced to the extent of any money paid under paragraph (b) in respect of the liability.

(3)  Where any process is required to be served by an officer of a court, the registrar of the home court shall, as soon as practicable, hand the process together with any necessary copies to the Sheriff or, where there is a bailiff for that court, to that bailiff, and where the process is required to be served by the bailiff at a foreign court the Sheriff or the bailiff at the home court shall as soon as practicable forward the process and copies to the bailiff at the foreign court.

[cf DCR Pt 43 r 7]

(4)  A Sheriff’s officer or bailiff shall serve process required to be served by that officer or bailiff as soon as practicable.

(5)  Where a Sheriff’s officer required to serve any process ascertains that the person to be served is not at the address shown in the process but at another address within New South Wales, the Sheriff shall, unless the party requiring the service otherwise directs, arrange for the process to be served at that other address, and inform that party that he or she has so arranged.

[cf DCR Pt 44 r 3 (1A)]

(6)  Where the bailiff required to serve any process ascertains that the person to be served is not at the address shown in the process but at another address, the bailiff shall, if the court at which he or she is bailiff is the nearest or otherwise most convenient court to that other address, serve the process at that other address.

[cf DCR Pt 44 r 3]

(7)  Within 2 days after serving any process, a Sheriff’s officer or bailiff shall forward an affidavit of service of the process to the person (other than a registrar) who require the service.

(8)  Where process delivered to a Sheriff’s officer or bailiff for service cannot be expeditiously served, the Sheriff’s officer or bailiff shall:

(a)  forthwith after becoming aware that there is no likelihood of effecting service for the process,

(b)  forthwith after the last day on which the process may, under the Act or these rules, be served, or

(c)  upon the expiration of one month after the last attempt made to serve the process,

whichever is the soonest, forward the process to the person (other than a registrar) who required the service, together with a notice stating why it has not been served.

[DCR Pt 44 r 4]

19 (Repealed)

20 Service by post—statement of claim

(1)  Service of a statement of claim may be effected by ordinary post addressed to the defendant at the address of the defendant shown in the statement of claim if:

(a)  the address is at the time of posting the address of the defendant’s residence or place of business, and

(b)  the posting is done by or at the direction of an officer in the registry, in an envelope marked with a return address which is the address of the court but is not so described.

(2)  Where the envelope containing a statement of claim posted as required by subrule (1) is returned unopened to the court by the postal authority as not having been delivered to the addressee:

(a)  service of the statement of claim shall be deemed not to have been effected, and

(b)  any judgment given or entered up on the basis of that service shall be deemed to have been set aside,

and the registrar shall so advise the plaintiff.

Part 8 Particulars

1 Definition

In this Part:

relevant document means a statement of claim, a notice of grounds of defence, a notice of cross-claim or a third party notice.

2 Particulars—general [cf DCR Pt 9 r 19]

(1)  A party lodging a relevant document shall include in the document such particulars of any claim, defence or other matter as are necessary to enable the opposite party to identify the case the opposite party is required by the document to meet.

(2)  Rules 3, 4, 5 and 7 do not affect the generality of subrule (1).

3 Embarrassment etc [cf DCR Pt 9 r 17]

(1)  Where a relevant document:

(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the document,

(b)  has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)  is otherwise an abuse of the process of the court,

the court may at any stage of the proceedings, on terms, order that the whole or any part of the document be struck out.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

(3)  Where the court makes an order under subrule (1) it may make such further order as it thinks fit as to:

(a)  subsequent steps in the proceedings being taken as though the matter so struck out had not been included,

(b)  granting time to any party to file amended documents,

(c)  granting leave to a plaintiff to have judgment entered up after the striking out of grounds of defence, despite the effluxion of any time limited for entering up judgment,

(d)  costs, and

(e)  any other matter consequent on the order.

4 Negligence and breach of statutory duty [DCR Pt 9 r 22]

(1)  In an action on a claim for damages in tort, a party alleging negligence (whether contributory or otherwise) or breach of a statutory duty shall give particulars of the matter alleged.

(2)  The particulars required by subrule (1) shall be a statement of the facts, but not of the evidence by which the facts are to be proved, on which the party relies as constituting the negligent act or omission or the breach of statutory duty alleged.

(3)  If the party relies on more than one negligent act or omission or breach of statutory duty, the particulars required by subrule (1) shall, so far as practicable, state separately each negligent act or omission or breach of statutory duty on which the party relies.

5 Out-of-pocket expenses etc [DCR Pt 9 r 23]

Where a party claims damages and seeks to include in the claim money which the party has paid, or is liable to pay, or has failed to receive, in consequence of the act or omission of the opposite party on which the claim is founded, the party shall give the best particulars the party can give of that money.

6 Manner of giving particulars [DCR Pt 9 r 25]

(1)  Where any of rules 2–5 require particulars to be given of any matter contained in a relevant document, the particulars shall be set out in the relevant document or, if that is inconvenient, shall be set out in a separate document referred to in the relevant document and that separate document shall be filed and served with the relevant document.

(2)  Notwithstanding subrule (1), where the necessary particulars of debt, expenses or damages exceed one page and have, before the date on which the relevant document is filed, been given to the party on whom the document is required to be served (or to whom a copy of the document is required to be given or sent), and the document shows the date on which the particulars were given:

(a)  subrule (1) does not require that the particulars be filed or served; but

(b)  the court may order that a copy of the particulars be filed and served.

7 “Scott Schedule” [cf DCR Pt 9 r 19A]

(1)  In building and other technical actions where a claim of defective workmanship or materials or for extras is made, the party who makes the claim shall, as soon as practicable, serve on each other party a copy of the claim in one of the approved forms (in these rules called a Scott Schedule), prepared on brief paper used lengthwise, and shall forthwith file a notice that the Scott Schedule has been served.

(2)  Each other party to the action shall, within 21 days after service on the party of a Scott Schedule, complete and file the Schedule and serve a copy of the Schedule so completed on the party who makes the claim.

(3)  Where this rule has not been complied with, the court may refuse to hear the action, or the court or registrar may refuse to fix a date for the hearing of the action.

8 Order for particulars [DCR Pt 9 r 26]

(1)  The court may, on terms, order a party to an action to file and serve on any other party:

(a)  particulars of any claim, defence or other matter stated in a relevant document filed by the party,

(b)  a statement of the nature of the case on which the party relies, or

(c)  a completed Scott Schedule.

(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, on terms, order that party to file and serve on any other party:

(a)  where that party alleges knowledge, particulars of the facts on which that party relies, and

(b)  where that party alleges notice, particulars of the notice.

(3)  Where the court makes an order under subrule (1), it may, if it thinks fit, by the same or any subsequent order direct that, if the order made under subrule (1) is not complied with within a period of time stated by the court, any proceedings brought, or any relevant document filed, by the party in default shall be struck out, or that any such proceedings shall be stayed until the order made under subrule (1) is complied with.

(4)  The court shall not in any action make an order under subrule (1) before the filing of notice of grounds of defence in the action unless, in the opinion of the court, the order is necessary or desirable to enable the defendant to complete a notice of grounds of defence, or for some other special reason.

Part 9 Notice of grounds of defence, setting down and call-over

pt 9, rule 1A: Ins 23.8.1991.

pt 9, rule 1: Am 31.8.1990.

pt 9, rule 2A: Ins 31.8.1990.

pt 9, rule 2B: Ins 18.12.1992. Am 22.11.1996.

pt 9, rule 3: Am 31.8.1990.

pt 9, rule 4: Am 5.3.1993; 17.6.1994.

pt 9, rules 5–7: Ins 23.8.1991.

pt 9, rule 8: Ins 23.8.1991. Am 18.12.1992; 5.3.1993; 28.7.1995.

Division 1 General Division

pt 9, div 1, hdg: Ins 23.8.1991.

1A Application of Division

This Division applies to actions in a court’s General Division but not to actions in a court’s Small Claims Division.

1 Notice of grounds of defence [cf DCR Pt 10 r 1]

(1)  A defendant in an action commenced by the lodging of an ordinary statement of claim may at any time before judgment file, in duplicate, notice of grounds of defence, signed by the defendant or the defendant’s solicitor.

(2)  A defendant in an action commenced by the lodging of a statement of liquidated claim may at any time before judgment file, in duplicate, notice of grounds of defence, signed by the defendant or the defendant’s solicitor, and verified by affidavit in accordance with rule 2.

(3)  The registrar shall, as soon as practicable after the filing of any notice of grounds of defence under this rule, give or send a copy of the notice and any affidavit filed with it, together with a notice calling attention to the provisions of rule 2A (1), to the plaintiff or the plaintiff’s solicitor.

(4)  A defendant shall not, at the hearing of an action, except by consent of the plaintiff or by leave, given on terms, of the court, set up any ground of defence not included in a notice of grounds of defence filed by the defendant under this rule.

(5)  Where in any action a defence of tender before the commencement of the action is included in a notice of grounds of defence, the defendant shall bring into the court the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until the amount has been brought into the court.

2 Verification of defences

(1)  Subject to this rule, a defendant in an action commenced by the lodging of a statement of liquidated claim shall verify by affidavit in accordance with this rule any notice of grounds of defence filed by the defendant.

(2)  An affidavit verifying a notice of grounds of defence may, subject to this rule, be made:

(a)  by the defendant,

(b)  where the action is an action referred to in Part 5 rule 1 (2) (b) or (c)—by the defendant or the defendant’s solicitor,

(c)  where the defendant is a disable person—by the defendant’s tutor,

(d)  where the defendant is a corporation—by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation,

(e)  where the defendant is a body of persons lawfully 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 having knowledge of the facts so far as they are known to the body, or

(f)  where the defendant is the State of New South Wales or an officer of the Crown being sued in the officer’s official capacity—by an officer of the Crown having knowledge of the facts so far as they are known to the Crown.

[DCR Pt 10 r 2 (1), (2)]

(3)  Subject to subrule (5), an affidavit verifying a notice of grounds of defence shall:

(a)  set out the facts entitling the deponent under subrule (2) to make the affidavit, and

(b)  verify the facts on which the defendant intends to rely by way of defence to the plaintiff’s claim.

[cf DCR Pt 10 r 2 (3)]

(4)  An affidavit verifying a notice of grounds of defence shall be filed with, or subscribed to, the notice.

[DCR Pt 10 r 2 (4)]

(5)  The court may, by order, give leave to a defendant to file, instead of an affidavit complying with subrule (3), an affidavit by such deponent and as to such facts as the court may determine.

(6)  A defendant may apply for an order under subrule (5) without serving notice of the motion.

(7)  In subrule (2) (e):

Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.

[DCR Pt 10 r 2 (9), (10), (11)]

2A Certificate of readiness

(1)  Unless the court otherwise orders, an action is not to be set down for hearing or call-over under rule 3 unless the plaintiff has filed a certificate of readiness.

(2)  A plaintiff is not to file a certificate of readiness before notice of grounds of defence has been filed:

(a)  by the defendant, or

(b)  if there is more than one defendant, by at least one of the defendants.

(3)  A plaintiff must, prior to filing a certificate of readiness, serve a copy of the certificate:

(a)  on the defendant or on the defendant’s solicitor, or

(b)  if there is more than one defendant, on each of the defendants by whom notice of grounds of defence has been filed or on that defendant’s solicitor,

and must endorse and sign, on the certificate to be filed, a statement to the effect that the provisions of this subrule have been complied with.

2B Particulars in personal injuries actions

(1)  This rule applies to an action in which a claim is made for damages in respect of personal injuries.

(2)  In an action to which this rule applies the plaintiff shall, before filing a certificate of readiness, serve on every defendant (or other party) who has filed notice of grounds of defence a statement setting out:

(a)  particulars of injuries received,

(b)  particulars of continuing disabilities,

(c)  details of out-of-pocket expenses, and

(d)  where any claim is made in respect of loss of income:

(i)  the name and address of each employer during the 12 months preceding the accident together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,

(ii)  the name and address of each employer since the accident together with details of the periods of employment, capacity in which employed and net earnings,

(iii)  the amount claimed in respect of loss of income to the date of the statement by comparison between what the plaintiff has earned since the accident and what he would have earned but for the accident, setting out, in respect of what the plaintiff would have earned but for the accident, particulars thereof, including, where appropriate, particulars of the earnings of comparable employees and the identity of those employees, or, where appropriate, particulars of payment which the plaintiff would have received under a relevant award or industrial agreement and the description of that award or industrial agreement,

(iv)  particulars of any alleged loss of earning capacity and future economic loss,

(v)  where self-employed, such additional particulars as will achieve full disclosure of the basis of the claim for loss of income, and

(vi)  particulars of any claim for domestic assistance or attendant care,

together with:

(e)  copies or originals of all documents available to the plaintiff in support of a claim for special damage and economic loss, whether past, present or continuing, including:

(i)  hospital, medical and similar accounts,

(ii)  letters from a workers’ compensation insurer indicating moneys paid to or on behalf of the plaintiff, and

(iii)  letters from employers, wage records, income records and group certificates, and

(iv)  reports, award rates and correspondence relied on to support any claims for domestic assistance or attendant care, and

(f)  copies or originals of all hospital and medical reports available at the time of serving the statement upon which the plaintiff intends to rely at the hearing.

(3)  The plaintiff shall, either before or when filing a certificate of readiness in the action, file a copy of the statement mentioned in subrule (2) endorsed with a certificate by the plaintiff or his solicitor to the effect that the statement and the documents mentioned in paragraphs (e) and (f) of that subrule have been served as required by that subrule.

(4)  The statement, documents and reports required under subrule (2) to be served shall be final and complete as to the plaintiff’s case except as regards any medical examination to be conducted after the date of service, and shall contain such details as the plaintiff can then provide as to the arrangements for any such medical examination.

(5)  Where, after service of any statement, document or report mentioned in subrule (2) and before the hearing of the action, the plaintiff becomes aware that any information contained in the statement, document or report is no longer accurate and complete information as regards the plaintiff’s claim, the plaintiff shall as soon as practicable give to all other parties who have filed notice of grounds of defence such advice as is necessary to make that information accurate and complete.

3 Setting down for hearing or call-over

(1)  Where notice of grounds of defence is filed under rule 1 (1) or (2), and a certificate of readiness is filed under rule 2A, in an action to which subrule (2) does not apply, and no affidavit is filed in the action under Part 3 rule 4 (2), the registrar shall set the action down for hearing on the earliest day which is convenient to the court and of which reasonable notice may be given to the parties.

[cf LC (CC) R r 20]

(2)  Where notice of grounds of defence is filed under rule 1 (1) or (2), and a certificate of readiness is filed under rule 2A, in an action in a court which is:

(a)  prescribed for the purposes of section 21H of the Act, or

(b)  the subject of a direction given by the Chief Magistrate for the purposes of this subrule,

and no affidavit is filed in the action under Part 3 rule 4 (2), the registrar shall set the action down for call-over on the earliest day which is convenient to the court and of which reasonable notice may be given to the parties.

(3)  Where the registrar sets an action down for hearing under subrule (1) or for call-over under subrule (2), the registrar shall as soon as practicable give or send notice of the setting down to the plaintiff or the plaintiff’s solicitor and to each defendant who has filed notice of grounds of defence or that defendant’s solicitor.

4 Call-over [cf LC (CC) R r 102]

(1)  Where the registrar sets an action down under rule 3 (2) for call-over on a day, the action shall be called over before a Magistrate or the registrar on that day.

(2)  Where, at the call-over of an action, the court is not precluded from making an order under section 21H (1) of the Act, the court shall:

(a)  make such an order,

(b)  fix a date for the hearing of the action before the court,

(c)  make an order adjourning the call-over of the action, which order may be made on terms, including terms as to costs,

(d)  strike out the action or any defence, cross-claim, or third or subsequent party notice filed in the action,

as the court thinks fit.

(3)  Where, at the call-over of an action, the court is precluded from making an order under section 21H (1) of the Act, the court shall:

(a)  fix a date for the hearing of the action before the court,

(b)  make an order adjourning the call-over of the action, which order may be made on terms, including terms as to costs, or

(c)  strike out the action or any defence, cross-claim, or third or subsequent party notice filed in the action,

as the court thinks fit.

(4)  Where the court strikes an action out under subrule (2) (d) or (3) (c), it shall, on the application of a party, fix another date for the call-over of the action, not being a date prior to the date already fixed (otherwise than on an adjournment) for the call-over of any other action.

(4A)  Where the court strikes out an action, defence, cross-claim, or third or subsequent party notice under subrule (2) (d) or (3) (c), it may make an order for costs consequential on the striking out.

(5)  Where the court strikes out a defence, cross-claim, or third or subsequent party notice under subrule (2) (d) or (3) (c) and default judgment is entered in the action, subrule (4) does not operate to enable the court to fix another date for the call-over of the action.

(6)  Where an action is called over before a registrar the registrar may exercise the functions of the court mentioned in this rule.

Division 2 Small Claims Division

pt 9, div 2, hdg: Ins 23.8.1991.

5 Application of Division

This Division applies to actions in a court’s Small Claims Division but not to actions in a court’s General Division.

6 Notice of grounds of defence

(1)  A defendant in an action in a court’s Small Claims Division may, at any time before judgment, file (in duplicate) notice of grounds of defence, signed by the defendant or the defendant’s solicitor.

(2)  The registrar must, as soon as practicable after the filing of any notice of grounds of defence under this rule, give or send a copy of the notice to the plaintiff or the plaintiff’s solicitor.

(3)  At the hearing of an action, a defendant may not set up any ground of defence that has not been included in a notice of defence filed under this rule, except by consent of the plaintiff or by leave of the court, given on terms.

7 Setting down for pre-trial review or for hearing

(1)  If notice of grounds of defence has been filed under rule 6, and no affidavit has been filed under Part 3 rule 4, the registrar must, unless a direction is given under subrule (2), set the action down for pre-trial review on the earliest day which is convenient to the court and of which reasonable notice can be given to the parties.

(2)  The court may, if it considers appropriate in the circumstances, direct the registrar that an action be set down for hearing instead of for pre-trial review.

(3)  If an action is set down for pre-trial review or for hearing under this rule, the registrar must, as soon as practicable, give or send notice to:

(a)  the plaintiff or the plaintiff’s solicitor, and

(b)  each defendant who has filed notice of grounds of defence or that defendant’s solicitor,

of the day set down for the review or hearing.

8 Pre-trial review

(1)  A pre-trial review of an action must be held, on the day set down under rule 7, before:

(a)  the Magistrate or Assessor who is expected to hear the action, or

(b)  some other Magistrate or Assessor, or

(c)  the registrar.

(2)  The person before whom the pre-trial review of an action is held:

(a)  must use his or her best endeavours:

(i)  to identify to the court and to the parties the issues in dispute between the parties, and

(ii)  to bring the parties to a settlement that is acceptable to them, and

(b)  must consider whether the issues in dispute between the parties should be referred to a community justice centre and, if so, must make any necessary orders as a consequence of such a referral, and

(c)  if the action is to proceed to a hearing:

(i)  must consider the preparations that the parties have made for the trial of the action and must give to the parties such advice concerning those preparations as seems reasonably necessary to ensure that a fair and quick trial of the action can be completed, and

(ii)  must give such directions as to evidence, admissions, amendments and otherwise as seems reasonably necessary to ensure that a fair and quick trial of the action can be completed, and

(iii)  must fix a date for the hearing and must cause notice of the date so fixed to be given to each of the parties.

(2A)  Nothing in this rule prevents the court from proceeding immediately after a pre-trial review to the hearing of the action if the court is satisfied that the action is ready for hearing and that all parties consent to an immediate hearing.

(3)  Nothing in this rule prevents the person before whom the pre-trial review of an action is held from adjourning the action for a further pre-trial review if an adjournment seems necessary and can be granted without causing injustice to any of the parties.

(4)  If a party fails, without reasonable explanation:

(a)  to attend a pre-trial review of an action, or

(b)  to comply with any direction given by the court on or in respect of a pre-trial review of an action,

the person before whom the review is held may make such orders (including orders fixing or vacating a date for hearing, orders adjourning the action for a further pre-trial review and orders striking out any claim or defence) as he or she considers appropriate in relation to the action.

(5)  If an action is struck out under this rule, the action may subsequently be reinstated by the court if the court is satisfied that the action is ready for pre-trial review or for hearing.

(6)  The person before whom the pre-trial review of an action is held may make any order which the court might make as to any costs which are recoverable under Part 31A rule 12.

Division 3 Case management powers

pt 9, div 3 (rule 9): Ins 7.8.1998.

9 Powers in relation to case management

(1)  The court or the registrar may make such orders as the court or registrar thinks fit for the just, efficient, effective or timely management of proceedings before the court.

(2)  Without limiting subrule (1), the court or registrar may make any one or more of the following orders:

(a)  an order fixing a timetable for the taking of steps to prepare the matter for hearing,

(b)  an order that a document may be filed with the court in electronic form,

(c)  an order that there be an exchange of written statements of the intended evidence of each witness,

(d)  an order as to how statements referred to in paragraph (c) can be used,

(e)  an order for the preparation and filing of a statement of agreed facts and agreed issues,

(f)  an order for the preparation and filing of an agreed list of exhibits that are page numbered and indexed (in appropriate order),

(g)  an order for the preparation of written submissions on a question of law raised, and the filing of copies of authorities relied on.

(3)  An order made under this rule has effect despite anything to the contrary in any other provision of these rules.

Part 10 Order for judgment

pt 10, rule 1: Am 23.8.1991; 5.3.1993; 16.12.1994.

pt 10, rule 2: Am 23.8.1991.

1 Order for judgment [cf DCR Pt 11 r 1]

(1)  Where, in an action commenced by the lodging of an ordinary statement of claim:

(a)  a defendant has not filed a notice of grounds of defence under Part 9 rule 1 (1) or 6 (1), or has filed such a notice which the court has ordered to be struck out,

(b)  judgment has not been given against that defendant, and

(c)  a period of 28 days after service of the statement of claim on that defendant has elapsed,

the plaintiff may, within 12 months after the expiration of that period, or at such later time as the court may, on sufficient cause being shown, allow, and on filing a form of order for judgment and an affidavit of service of the statement of claim on that defendant, have an order for judgment made by the court or registrar against that defendant.

(1A)  Where:

(a)  a defendant seeks an order for judgment under subrule (1) in respect of a cross-claim, and

(b)  a notation has been made, by an officer in the registry, on the filed notice of the cross-claim:

(i)  to the effect that a copy of the notice has been given or sent by post to the plaintiff or the plaintiff’s solicitor, and

(ii)  stating the date of that giving or sending,

that giving or sending shall be deemed to be service of the notice on the plaintiff and that notation shall be taken to satisfy the requirement in subrule (1) for the filing of an affidavit of service.

(1B)  Where a notation has been made, by an officer in the registry, on the court record of an action:

(a)  to the effect that the statement of claim in the action has been served by posting under Part 7 rule 20 (1), and

(b)  stating the date of that posting,

that notation shall be taken to satisfy the requirement in subrule (1) for the filing of an affidavit of service of the statement of claim.

(2)  Subject to rule 2 (2), where an order for judgment is made in an action against a defendant:

(a)  that defendant shall be taken to have admitted liability, and

(b)  the action shall go to trial, in accordance with rule 3 and Part 22 rule 1, only as to the assessment of the amount to be recovered by the plaintiff against that defendant.

2 Setting aside order [DCR Pt 11 r 2]

(1)  An order for judgment against a defendant:

(a)  may be set aside, on terms, by order of the court at any time before judgment, and

(b)  shall, without order, be set aside on the filing of a notice of grounds of defence by that defendant under Part 9 rule 1 (1) or 6 (1).

(2)  Rule 1 (2) shall, on the setting aside of an order for judgment against a defendant in an action, cease to have any operation on or in respect of the action as against that defendant.

(3)  Where an order for judgment is set aside, the court may, at the same time or subsequently, make such orders as it thinks fit as to the continuance of the action and as to the costs incurred by any party by the making or setting aside of the order for judgment or by any adjournment of the hearing of the action.

3 Trial

(1)  Where an order for judgment is made by the registrar in an action, the registrar shall:

(a)  fix a date for the trial of the action as to the assessment of the amount to be recovered by the plaintiff, and advise the plaintiff of that date, and

(b)  at least 14 days before the date so fixed give to the defendant, or send to the defendant by post addressed to the defendant at the last address known to the registrar, notice of the order for judgment and the date so fixed.

(2)  The trial of the action as to assessment shall, unless the order for judgment is set aside or the trial is adjourned, proceed on the date fixed and notified as mentioned in subrule (1), but it shall not be necessary to prove compliance by the registrar with the requirements of that subrule.

[DCR Pt 11 r 3]

(3)  Without limiting the generality of Part 3 rule 7 and Part 22 rule 1, and unless the court or registrar otherwise orders, the trial of the action as to assessment shall be held in chambers, and any evidence in the action shall be given by affidavit.

Part 10A Summary disposal

pt 10A: Ins 18.12.1992.

pt 10A, rules 1, 2: Ins 18.12.1992. Am 22.11.1996.

pt 10A, rule 3, headnote: Ins 18.12.1992. Subst 22.11.1996.

pt 10A, rule 3: Ins 18.12.1992. Am 22.11.1996 (see also 6.12.1996).

pt 10A, rule 4: Ins 18.12.1992. Am 22.11.1996.

Division 1 Summary judgment

pt 10A, div 1, hdg: Ins 22.11.1996.

1 Application and interpretation

(1)  This Part applies to actions, but not to proceedings other than actions, in a court’s General Division, and not to actions or other proceedings in a court’s Small Claims Division.

(1A)  This Part does not apply to an action in which there is an issue of fact on a charge of fraud against a party.

(2)  In this Part:

claim for relief means any claim which the court has jurisdiction to determine in an action.

defendant includes any person against whom a claim for relief is made.

plaintiff includes any person making a claim for relief.

2 Summary judgment

(1)  Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff:

(a)  there is evidence of the facts on which the claim or part is based, and

(b)  there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,

the court may, at any time, give such judgment for the plaintiff on that claim or part as the nature of the case requires.

(2)  Without limiting subrule (1), the court may, under that subrule, give judgment for the plaintiff for damages to be assessed, and where the court gives such a judgment the action shall go to trial only as to the assessment of damages.

(3)  A judgment under this rule may, on sufficient cause being shown, be set aside, on terms, by order of the court.

(4)  In this rule, damages includes the value of goods.

(5)  Evidence in support of an application under subrule (1) shall be by affidavit unless the court otherwise orders, and the provisions of Part 15 apply to any such application.

Division 2 Summary stay or dismissal

pt 10A, div 2, hdg: Ins 22.11.1996.

3 Frivolity etc

(1)  Where in any action it appears to the court that in relation to the action generally or in relation to any claim for relief in the action:

(a)  no reasonable cause of action is disclosed,

(b)  the action is frivolous or vexatious, or

(c)  the action is an abuse of the process of the court,

the court may order that the action be stayed or dismissed generally or in relation to any claim for relief in the action.

(2)  Evidence in support of an application for an order under subrule (1) shall be by affidavit unless the court otherwise orders, and the provisions of Part 15 apply to any such application.

Division 3 General

pt 10A, div 3, hdg: Ins 22.11.1996.

4 Residue of proceedings

Where, in any action:

(a)  a party applies under this Part for:

(i)  judgment pursuant to Division 1, or

(ii)  an order for stay or dismissal pursuant to Division 2, and

(b)  the action is not wholly disposed of by judgment or dismissal or the action is not wholly stayed,

the action may be continued as regards any claim or part of a claim not disposed of by judgment or dismissal and not stayed.

Part 11 Default judgment

pt 11, rule 1: Am 9.6.1989; 23.8.1991; 5.3.1993; 16.12.1994.

1 Default judgment [DCR Pt 13 r 1]

(1)  Where, in an action commenced by the lodging of a statement of liquidated claim:

(a)  a defendant has not filed a notice of grounds of defence under Part 9 rule 1 (2) or 6 (1), or has filed such a notice which the court has ordered to be struck out,

(ai)  that defendant has not filed a statement of confession to which Part 12 rule 2 (5) (b) refers,

(b)  judgment has not been entered up against that defendant, and

(c)  a period of 28 days after service of the statement of claim on that defendant has elapsed,

the plaintiff may, within 12 months after the expiration of that period, or at such later time as the court may, on sufficient cause being shown, allow, and on filing:

(d)  an affidavit of service of the statement of claim on that defendant, and

(e)  a statement of:

(i)  the amount then due to the plaintiff in respect of the cause of action for which the action was commenced, and

(ii)  any payments made or credits accrued since the commencement of the action in reduction of the amount of the plaintiff’s claim and costs,

verified by the oath of the plaintiff, or the plaintiff’s solicitor or agent,

have default judgment entered up by the court or the registrar against that defendant for the amount referred to in paragraph (e) (i) or the amount specified in the statement of claim (whichever is the lesser), and such amount (if any) as may be prescribed as costs.

(1A)  Where:

(a)  a defendant seeks the entry of default judgment under subrule (1) in respect of a cross-claim, and

(b)  a notation has been made, by an officer in the registry, on the filed notice of the cross-claim:

(i)  to the effect that a copy of the notice has been given or sent by post to the plaintiff or the plaintiff’s solicitor, and

(ii)  stating the date of that giving or sending,

that giving or sending shall be deemed to be service of the notice on the plaintiff and that notation shall be taken to satisfy the requirement in subrule (1) for the filing of an affidavit of service.

(1B)  Where a notation has been made, by an officer in the registry, on the court record of an action:

(a)  to the effect that the statement of claim in the action has been served by posting under Part 7 rule 20 (1), and

(b)  stating the date of that posting,

that notation shall be taken to satisfy the requirement in subrule (1) for the filing of an affidavit of service of the statement of claim.

(2)  A default judgment under this rule may, on sufficient cause being shown or if the parties consent, be set aside, on terms, by order of the court.

(3)  Without limiting subrule (2), a default judgment under this rule may be set aside, on terms, by order of the court if:

(a)  service of the statement of claim in the action was effected by posting under Part 7 rule 20 (1), and

(b)  the defendant satisfies the court that:

(i)  he did not receive the statement of claim in due time,

(ii)  he has a defence on the merits to the plaintiff’s claim, or there is other reason why it would be unjust or unconscionable for the judgment to stand.

2 Where defence as to part of claim [DCR Pt 13 r 2]

(1)  Where, in an action commenced by the lodging of a statement of liquidated claim, the defendant files notice of grounds of defence to part only of the plaintiff’s claim, the plaintiff may, on filing notice admitting the truth of the grounds of defence, have default judgment entered up under rule 1 as if the unanswered part of the plaintiff’s claim were the total amount claimed in the action.

(2)  A plaintiff who has default judgment entered up as mentioned in subrule (1) shall serve on the defendant a copy of the notice mentioned in that subrule and a notice advising that default judgment has been entered up, and shall not take any step for the enforcement of the default judgment until the expiration of 7 days after that service.

(3)  The court may if it thinks fit, on the application of a defendant referred to in subrule (1), order the plaintiff to pay the costs reasonably incurred by the defendant in respect of the part of the plaintiff’s claim answered by the notice of grounds of defence.

Part 12 Judgment by confession or agreement

pt 12, rule 5: Subst 27.4.1990. Rep 22.11.1996.

1 Definitions [DCR Pt 14 r 1]

In this Part:

defendant, in relation to an action in which there are 2 or more defendants, means all or any of the defendants.

plaintiff, in relation to an action in which there are 2 or more plaintiffs, means all of the plaintiffs.

2 Judgment by confession

(1)  At any time before judgment in an action, the defendant may sign a statement confessing to the amount, or part of the amount, of the claim of the plaintiff.

(2)  Where a statement under subrule (1) is filed before judgment, the registrar shall as soon as practicable thereafter give or send to the plaintiff or the plaintiff’s solicitor notice of the amount to which the defendant has confessed.

(3)  Subject to subrule (6), where the confession is to the whole of the amount of the claim of the plaintiff and the plaintiff has not in the action claimed damages in respect of any personal injuries, the registrar shall forthwith after giving or sending the notice under subrule (2) enter up judgment for the plaintiff for that amount.

(4)  Subject to subrule (6), where the confession is to the whole of the amount of the claim of the plaintiff and the plaintiff has in the action claimed damages in respect of personal injuries, and the plaintiff, within 14 days after notice was given by the registrar under subrule (2), or, where that notice was sent by post, within 14 days after the notice is deemed under Part 7 rule 19 to have been received, does not:

(a)  make application for leave to amend the claim by increasing the amount of damages claimed, or

(b)  make application to the District Court for an order under section 21B of the Act removing the action into the District Court and give notice to the registrar that the plaintiff has so applied,

the registrar shall forthwith after the expiration of that time enter up judgment for the plaintiff for the amount to which the defendant has confessed.

(5)  Where:

(a)  the claim of the plaintiff includes interest accruing after the date of issue of the statement of claim, and

(b)  the confession is to the whole of the amount of that claim, including that interest, but does not specify the amount of that interest,

the plaintiff may, within 14 days after notice was given by the registrar under subrule (2), or, where that notice was sent by post, within 14 days after the notice is deemed under Part 7 rule 19 to have been received, file, and serve on the defendant by post or otherwise, an affidavit verifying the amount of that interest due as at the date of filing of the confession.

(6)  Where, in an action to which subrule (5) applies:

(a)  the plaintiff within the time prescribed files an affidavit referred to in that subrule, the registrar shall forthwith enter up judgment for the plaintiff for the amount to which the defendant has confessed, including the amount of interest verified by the affidavit, or

(b)  the plaintiff does not within the time prescribed file an affidavit referred to in that subrule, the registrar shall forthwith after the expiration of that time enter up judgment for the plaintiff for the amount to which the defendant has confessed, excluding any interest the amount of which is not specified in the confession.

(7)  Where the confession is to part only of the amount of the claim of the plaintiff, and the plaintiff, within 14 days after notice was given by the registrar under subrule (2), or, where that notice was sent by post, within 14 days after the notice is deemed under Part 7 rule 19 to have been received, does not file a notice refusing to accept in full satisfaction of the claim the amount so confessed to, the registrar shall forthwith after the expiration of that time enter up judgment for the plaintiff for the amount to which the defendant has confessed.

[DCR Pt 14 r 2 (1)–(5)]

(8)  Where the plaintiff files a notice of refusal referred to in subrule (7), the plaintiff shall do so in duplicate and the registrar shall, as soon as practicable after the filing of any such notice, give or send a copy thereof to the defendant or the defendant’s solicitor.

[DCR Pt 14 r 2 (10)]

(9)  A defendant who files a statement under subrule (1) may at the same time file an application, supported by an affidavit as to the defendant’s property and means, to the registrar for leave to pay the amount confessed to, if judgment is entered up for that amount, by such instalments payable at such times as may be specified in the application, and where such an application and affidavit are filed the registrar shall, when giving or sending notice under subrule (2), give or send a copy of the application and affidavit to the plaintiff or the plaintiff’s solicitor.

(10)  Where a defendant has filed an application and affidavit under subrule (9), and the registrar enters up judgment for the plaintiff under subrule (3), (4), (7) or (12), the application shall thereupon be deemed to be an application under Part 27 rule 2 in respect of the judgment debt so arising, and the registrar shall forthwith consider and determine the application, and forward notice of the registrar’s order, accordingly.

(11)  Where the plaintiff makes application, on the ground that the plaintiff did not receive in sufficient time any notice required to be given or sent to the plaintiff by the registrar under subrule (2), for the setting aside of any judgment entered up by the registrar under subrule (4) or (7), the court or registrar may, if the court or registrar thinks fit, on terms, set aside the judgment.

[DCR Pt 14 r 2 (6)–(8)]

(12)  Where the plaintiff makes an application as referred to in subrule (4) (a) or (b), and the application is refused, the registrar shall as soon as practicable thereafter enter up judgment for the plaintiff for the amount to which the defendant has confessed.

[DCR Pt 14 r 2 (9)]

3 Judgment by agreement [DCR Pt 14 r 3]

(1)  At any time before judgment in an action:

(a)  where there are parties joined otherwise than as plaintiff or defendant:

(i)  all the parties, or

(ii)  the plaintiff and the defendant, or

(b)  where there are no parties joined otherwise than as plaintiff or defendant—the plaintiff and the defendant,

may enter into an agreement as to the judgment to be entered in the action as between the parties to the agreement and as to the terms and conditions (if any) on which the judgment is to be satisfied.

(2)  Where an agreement under subrule (1) is filed before judgment, the registrar shall forthwith enter up judgment in accordance with that agreement.

(3)  Where:

(a)  the registrar enters up a judgment under subrule (2),

(b)  a judgment debt arises by virtue of the judgment, and

(c)  the agreement specifies by what instalments payable at what times the judgment debt or part of the debt is to be paid,

the registrar shall forthwith order that the judgment debt or part be paid by such instalments payable at such times as are so specified.

(4)  An order made under subrule (3) shall be deemed to be an order made under Part 27 rule 2 (7) pursuant to an agreement referred to in Part 27 rule 2 (1) (b).

(5)  A judgment entered up under subrule (2) pursuant to an agreement under subrule (1) may be set aside, on terms, by the court on sufficient cause being shown on the application of any party to the action who was not a party to the agreement.

4 Machinery as to statements of confession and agreements [DCR Pt 14 r 3A]

(1)  A statement under rule 2 (1) may, instead of being signed by the defendant, be signed by the defendant’s solicitor or barrister on the defendant’s behalf.

(2)  An agreement under rule 3 (1) may, instead of being entered into personally by a party to the action, be entered into by the party’s solicitor or barrister on the party’s behalf.

(3)  A statement under rule 2 (1) or an agreement under rule 3 (1) shall have no force or effect for the purposes of this Part unless the signature of every person executing it, other than a solicitor or barrister, is witnessed by a registrar, a clerk employed in a registry, a solicitor or a justice of the peace.

(4)  A judgment entered up:

(a)  under rule 2 pursuant to a statement under rule 2 (1) shall, as between the plaintiff and the defendant signing the statement, or

(b)  under rule 3 pursuant to an agreement under rule 3 (1) shall, as between the parties to the agreement,

be in full discharge of all demands in respect of the cause of action in respect of which the statement was signed or the agreement was entered into.

5 (Repealed)

Part 13 Interest

pt 13, rule 2: Am 9.6.1989; 14.2.1992; 5.3.1993; 28.5.1993.

pt 13, rule 3: Ins 9.6.1989. Am 14.2.1992; 28.5.1993.

1 Interest under section 39A of the Act [LC (CC) R r 32A]

The provisions of section 39A (1) and (2) of the Act do not apply to any action in which the amount claimed is less than $1,000.

2 Interest ordered by court

(1)  Where interest has been claimed in an action and judgment is entered up in the action under Part 11 rule 1 or Part 12 rule 2 or 3, the amount of interest deemed in accordance with subrule (4) to have been claimed shall for the purposes of those rules be deemed to be part of the amount claimed in respect of the cause of action for which the action was commenced, and may be included in the amount for which judgment is so entered up.

[DCR Pt 14A r 1 (1)]

(2)  Subrule (1) does not apply to any action in which the amount claimed is less than $1,000.

[cf LC (CC) R r 32A]

(3)  Where the court orders under section 39A of the Act that interest be paid, that interest shall, unless the court otherwise orders, be calculated at the rate or rates at which it is deemed in accordance with subrule (4) to have been claimed.

[DCR Pt 14A r 1 (2)]

(4)  For the purposes of subrules (1) and (3), interest shall be deemed to have been claimed, in respect of any period mentioned in Column 1 of the Table below, at the rate per cent yearly specified in Column 2 of that Table in respect of that period, or at the rate or rates specified in the claim in respect of that period, whichever is lesser.

Table

Column 1	Column 2
1 July 1972 to 31 December 1973	5
1 January 1974 to 31 December 1980	10
1 January 1981 to 30 June 1981	13.5
1 July 1981 to 30 June 1982	14.5
1 July 1982 to 31 December 1983	15.5
1 January 1984 to 31 December 1984	14.5
1 January 1985 to 2 January 1986	13.5
3 January 1986 to 31 July 1986	18.25
1 August 1986 to 1 November 1987	19.5
2 November 1987 to 1 March 1988	18
2 March 1988 to 16 February 1992	15
17 February 1992 to 27 May 1993	11.25
After 27 May 1993	the rate prescribed for the purposes of Section 95 (1) of the Supreme Court Act 1970

(5)  This rule does not apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.

3 Interest on judgment debt [cf DCR Pt 14A r 1 (3)]

For the purposes of section 39 (2) (b) of the Act, the prescribed rate per cent yearly, in respect of any period mentioned in Column 1 of the Table below, is the rate specified in Column 2 of that Table in respect of that period.

Table

Column 1	Column 2
On or before 3 April 1977	5
4 April 1977 to 31 December 1982	10
1 January 1983 to 5 January 1984	15.5
6 January 1984 to 31 December 1984	14.5
1 January 1985 to 2 January 1986	13.5
3 January 1986 to 31 July 1986	18.25
1 August 1986 to 1 November 1987	19.5
2 November 1987 to 1 March 1988	18
2 March 1988 to 16 February 1992	15
17 February 1992 to 27 May 1993	11.25
After 27 May 1993	the rate prescribed for the purposes of Section 95 (1) of the Supreme Court Act 1970

Part 14 Admissions

pt 14, rules 2, 3: Am 23.8.1991.

pt 14, rule 6: Am 22.11.1996.

pt 14, rule 7: Rep 22.11.1996.

1 Voluntary admissions [DCR Pt 15 r 1; cf LC (CC) R r 94]

(1)  A party to proceedings may, by notice served on another party, admit, in favour of the other party, but for the purpose of the proceedings only, the facts specified in the notice.

(2)  A party may, with the leave of the court, withdraw an admission made under subrule (1).

2 Notice to admit facts [cf DCR Pt 15 r 2; cf LC (CC) R r 96]

(1)  This rule does not apply to an action in a court’s Small Claims Division.

(2)  A party to proceedings which are contested by the filing of either a notice of grounds of defence, a notice of cross-claim, a third party notice or an affidavit in reply may, by notice served on another party, require the other party to admit, for the purpose of the proceedings only, the facts specified in the notice.

(3)  If, as to any fact 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, a notice disputing that fact, that fact shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit facts is served in favour of the party serving the notice to admit facts.

(4)  A party may, with the leave of the court, withdraw an admission made by virtue of the operation of subrule (3).

3 Notice to admit documents [cf DCR Pt 15 r 4; cf LC (CC) R r 97]

(1)  This rule does not apply to an action in a court’s Small Claims Division.

(2)  A party to proceedings which are contested by the filing of either a notice of grounds of defence, a notice of cross-claim, a third party notice or an affidavit in reply may, by notice served on another party, require the other party to admit, for the purpose of the proceedings only, the authenticity of the documents specified in the notice.

(3)  If, as to any 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 documents, a notice disputing the authenticity of the document, the document shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit documents is served.

(4)  A party may, with the leave of the court, withdraw an admission made by virtue of the operation of subrule (3).

4 Court may order admissions [cf DCR Pt 15 r 2A]

(1)  The court may at any stage of any proceedings require any party to the proceedings (not being a disable person) to make admissions with respect to any document or any question of fact, and in case of refusal or neglect to make the admissions may, unless the court is of opinion that the refusal or neglect is reasonable, order that such amount as it determines in respect of the costs of proof occasioned by the refusal or neglect shall be paid by the party.

(2)  An admission made as required by the court under subrule (1):

(a)  shall be for the purposes of the proceedings in which it is made and for no other purpose,

(b)  shall be subject to all just exceptions, and

(c)  may, with the leave of the court, given on terms, be amended or withdrawn.

5 Judgment on admissions [DCR Pt 15 r 3; cf LC (CC) R r 95]

(1)  Where admissions are made by a party the court may, on the application of any other party, give or direct the entry of any judgment or make any order to which the applicant is entitled on the admissions.

(2)  The court may if it thinks fit exercise its powers under subrule (1) notwithstanding that other questions in the proceedings have not been determined.

6 Restricted effect of admission [DCR Pt 15 r 6]

An admission under this Part for the purpose of any proceedings shall not be used:

(a)  against the admitting party in any other proceedings, or

(b)  in favour of any person other than the party in whose favour the admission is made.

7 (Repealed)

Part 15 Motions

pt 15, rule 1: Am 23.8.1991; 22.11.1996.

pt 15, rule 2: Am 9.6.1989; 22.11.1996.

pt 15, rule 4: Rep 22.11.1996.

pt 15, rule 5: Am 22.11.1996.

pt 15, rule 6: Am 22.7.1994. Rep 22.11.1996.

1 Application of this Part

(1)  An interlocutory application, in or for the purposes of or in relation to an action, shall be made by motion.

[cf DCR Pt 16 r 1]

(1A)  In this Part, the person making the application is referred to as the applicant and any other party to the application is referred to as a respondent.

(2)  The provisions of this Part do not apply to an action in a court’s Small Claims Division except in relation to:

(a)  an application under Part 3 rule 9 (4) (b), Part 20 rule 8, Part 26 rule 3 or Part 32 rule 2 (1), or

(b)  a motion under Part 35 rule 6.

(3)  Subrule (2) does not prevent a court from making any order or giving any direction.

2 Notice [DCR Pt 16 r 2]

(1)  Subject to subrule (2), a person shall not move the court for any order unless before moving the person has filed notice of the motion and the person or the registrar has served the notice on each respondent.

(2)  A person may move the court 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 respondent consents to the order,

(c)  where, under these rules or the practice of the court for the time being, 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 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 has made an order under rule 3, bear a note of the order made,

(c)  state concisely the nature of the order which is sought,

(d)  state concisely the grounds on which the order is sought, or refer to the affidavit in which those grounds are contained,

(e)  name (or, if a party to the action, identify) the applicant and each respondent, and

(f)  where the applicant does not already have an address for service in the action, state an address for service.

(3A)  Costs need not be specifically claimed.

(4)  As soon as practicable after notice of a motion is filed, the registrar shall, for the purposes of subrule (3) (a), insert in the notice the date and time when the motion is to be made and shall, unless service of the notice has been dispensed with:

(a)  serve the notice by post or otherwise on each interested party, or

(b)  return copies of the notice to the applicant for service on each interested party.

3 Time for service of notice [DCR Pt 16 r 3]

Where notice of a motion is required to be served, it shall, unless the court otherwise orders, be served not less than 3 days before the date fixed for the motion.

4 (Repealed)

5 Hearing [DCR Pt 16 r 5]

(1)  The court upon the hearing or adjourned hearing of any motion may make or refuse the order sought and may make such other order or give such directions as may be just.

(2)  A motion in relation to any action shall include, so far as is practicable, all or as many applications as the applicant may desire to make in relation to the action and as, having regard to the nature of the action, can conveniently be dealt with at the one time, and on the hearing or adjourned hearing of the motion any respondent shall be at liberty to make any application in relation to the action.

(2A)  The court may hear and dispose of a motion in the absence of any party to the motion where notice of the motion has been duly served on the absent party.

(3)  Where a respondent makes any application as mentioned in subrule (2) the court may either grant or refuse the order sought by the respondent, and give such directions as may be just, or may adjourn the hearing of the application and direct any necessary notice to be given.

(4)    (Repealed)

6 (Repealed)

Part 16 Amendment

pt 16, rule 1A: Ins 23.8.1991.

pt 16, rules 1–4: Am 22.11.1996.

pt 16, rule 5, headnote: Subst 22.11.1996.

pt 16, rules 5–10: Am 22.11.1996.

pt 16, rule 11: Rep 22.11.1996.

1A Application of Part

(1)  The provisions of this Part (rule 1 excepted) do not apply to an action in a court’s Small Claims Division except in relation to an amendment under Part 35 rule 4.

(2)  Subrule (1) does not prevent a court from making any order or giving any direction.

1 General [DCR Pt 17 r 1; cf LC (CC) R r 84]

(1)  The court may, at any stage of any action, on application by any party or of its own motion, order that any document in the action be amended, or that any party have leave to amend any document in the action, 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 action, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

(3)  Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if the person were a party.

(3A)  An order may be made, or leave may be granted, under subrule (1) notwithstanding that the effect of the amendment is, or would be, to add or substitute a cause of action arising after the commencement of the action, but in such a case the date of commencement of the action, so far as concerns that cause of action, shall, subject to rule 4, be the date on which the amendment is made.

(4)  This rule does not apply to the amendment of a judgment order or certificate.

2 Amendment without leave [cf DCR Pt 17 r 2]

(1)  A party may, without leave, at any time before a date is fixed for the trial of the action, amend once any document filed by the party.

(2)  A party may, subject to subrules (3A) and (3B), by consent of the parties at any stage of the action, amend any document filed by the party.

(3)  Subject to subrules (3A) and (3B), this rule applies to an amendment which would have the effect that a person is added as, or ceases to be, a party, as it applies to other amendments.

(3A)  This rule does not apply to an amendment which would have the effect of adding a person as a plaintiff unless:

(a)  the plaintiff immediately before the amendment is made acts by a solicitor, and

(b)  that solicitor at the time the amendment is made certifies on the amended document:

(i)  that he acts for the person added as a plaintiff, and

(ii)  that the person consents to being added as a plaintiff.

(3B)  This rule does not apply to an amendment which would have the effect that a person ceases to be a party unless that person consents to ceasing to be a party.

(4)  Where a plaintiff amends a statement of claim:

(a)  if the defendant has filed notice of grounds of defence, the defendant may amend the notice, and

(b)  the time for filing or amending the notice of grounds of defence, as the case may be, shall be either 28 days after service of the statement of claim on that defendant or 14 days after service on that defendant under rule 9, whichever expires later.

(5)  The rights to amend under subrules (2) and (4) are in addition to the right to amend under subrule (1).

3 Disallowance of amendment [DCR Pt 17 r 3]

(1)  Where a party amends a document under rule 2 (1) or (4), the court, on application by an opposite party, may, subject to subrule (2), by order disallow the amendment.

(2)  Notice of a motion under subrule (1) shall be filed and served within 14 days after the date of service on the applicant under rule 9.

(3)  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 rule 1 (1) on the date on which the amendment was made under rule 2 (1) 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.

4 Statutes of limitation [DCR Pt 17 r 4]

(1)  Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the court may, in the circumstances mentioned in that subrule, make an order giving leave accordingly, notwithstanding that that period has expired.

(2)    (Repealed)

(3)  Where there has been a mistake in the name of a party and the court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.

(4)  Where, on or after the date of filing a statement of claim, the plaintiff is or becomes entitled to sue in any capacity, the court may order that the plaintiff have leave to make an amendment having the effect that the plaintiff sues in that capacity.

(5)  Where a plaintiff, in a statement of claim, makes a claim on a cause of action arising out of any facts, the court may order that the plaintiff have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim on that new cause of action.

(5A)  An amendment made pursuant to an order made under this rule shall, unless the court otherwise orders, relate back to the date of filing of the statement of claim.

(6)  This rule does not limit the powers of the court under rule 1.

5 Duration of leave or consent

(1)  Subject to Part 4 rule 2, where the court makes an 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.

[DCR Pt 17 r 5]

(2)  Subject to Part 4 rule 2, where, at the request of a party, each other party gives consent to amend a document, then, if the requesting party does not amend the document in accordance with the consent or consents before the expiration of 14 days after the date on which the consent or the first of the consents is given the consent or consents shall cease to have effect.

6 Mode of amendment—directions [DCR Pt 17 r 6]

(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 7, 8 and 9 have effect subject to subrule (1).

7 Mode of amendment—simple amendments [DCR Pt 17 r 7]

(1)  Where the amendments 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 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:

(a)  if the amendment is made pursuant to an order, the date of the order, or

(b)  otherwise, a reference to the rule authorising the amendment.

(3)  The marking mentioned in subrule (2) shall:

(a)  where the amendment is made pursuant to an order, be carried out by the registrar and sealed with the seal of the court, or

(b)  where the amendment is made by a party without leave, be carried out by the party and initialled by the party.

8 Mode of amendment—fresh document [DCR Pt 17 r 8]

Subject to rule 7 (1), amendments to a filed document shall be made by filing a fresh document, amended as so authorised, and bearing a statement specifying the matters mentioned in rule 7 (2).

9 Service after amendment [DCR Pt 17 r 9]

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, or so soon thereafter as is practicable, serve on the parties on whom the document was served:

(a)  if the amendment is made under rule 7—a notice specifying the amendment and the matters mentioned in rule 7 (2), or

(b)  if the amendment is made under rule 8—the fresh document.

10 Judgment order or certificate [DCR Pt 17 r 10]

(1)  Where there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

(2)  Rules 7, 8 and 9 do not apply to a correction made under subrule (1).

11 (Repealed)

Part 17 Withdrawal and discontinuance

pt 17, rule 1: Am 22.11.1996.

pt 17, rule 3: Rep 22.11.1996.

pt 17, rules 4–6: Am 22.11.1996.

pt 17, rule 7: Rep 22.11.1996.

pt 17, rules 8, 9: Am 22.11.1996.

1 Discontinuance [cf DCR Pt 18 r 1]

(1)  In this rule:

proceedings means action, cross-claim or third party proceedings.

(2)  A party making a claim for relief may, before the beginning of the trial or hearing of the proceedings on the claim (but not otherwise), discontinue the proceedings so far as concerns the whole or any part of any claim for relief made by him:

(a)  where the party or the party’s solicitor certifies that the party does not represent any other person and all other parties having an address for service in the proceedings consent, or

(b)  with the leave of the court.

2 Withdrawal of defence [DCR Pt 18 r 2]

(1)  A party raising any matter in a notice of grounds of defence may withdraw that matter at any time.

(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.

3 (Repealed)

4 Want of prosecution [DCR Pt 18 r 3]

(1)  Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the court may, on application by any party or of its own motion, dismiss the proceedings or make such other order as the court thinks fit.

(2)  Where an action is dismissed under subrule (1), rules 8 and 9 apply as though the dismissal were a discontinuance.

5 Mode of discontinuance or withdrawal [DCR Pt 18 r 4]

(1)  A discontinuance or withdrawal under rule 1 or 2 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.

(3)  A notice under subrule (1) effecting a discontinuance under rule 1 (2) (a) may contain a statement that no order will be sought as to the costs occasioned by the discontinued claim and incurred before service of the notice.

6 Service [DCR Pt 18 r 5]

A party filing a notice under rule 5 shall, as soon as practicable, serve the notice on each other party.

7 (Repealed)

8 Effect of discontinuance [DCR Pt 18 r 7]

A discontinuance under this Part as to any cause of action shall not, subject to the terms of any consent to the discontinuance or any leave to discontinue, prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings.

9 Stay to secure costs [DCR Pt 18 r 8]

Where:

(a)  a party discontinues proceedings so far as concerns the whole or any part of any claim for relief,

(b)  the party is, by reason of the discontinuance, liable to pay costs of another party occasioned by the proceedings, and

(c)  before payment of the costs, the party brings against that other party further proceedings on the same or substantially the same cause of action as that on which the discontinued proceedings were brought,

the court may stay the further proceedings until those costs are paid.

Part 17A Offer of compromise

pt 17A, rules 1–4: Ins 22.4.1994.

pt 17A, rule 5: Ins 22.4.1994. Am 29.3.1996; 22.11.1996.

pt 17A, rules 6–8: Ins 22.4.1994.

pt 17A, rule 9: Ins 22.4.1994. Am 22.11.1996.

pt 17A, rule 10: Ins 22.4.1994.

pt 17A, rule 11: Ins 22.4.1994. Rep 22.11.1996.

pt 17A, rule 12: Ins 22.4.1994. Am 22.11.1996.

pt 17A, rule 13: Ins 22.4.1994. Am 28.7.1995. Subst 22.11.1996.

1 Application of Part

(1)  This Part applies to actions in a court’s General Division but not to actions in a court’s Small Claims Division.

(2)  Subrule (1) does not prevent a court from making any order or giving any direction.

2 Mode of making offer

(1)  An offer of compromise is made to a party under this Part by serving a notice of the offer on the party.

(2)  A notice of offer shall:

(a)  be prepared in accordance with Part 36 rules 2–6, and

(b)  bear a statement to the effect that the offer is made in accordance with this Part.

(3)  The notice of an offer to a party who acts other than by a solicitor shall contain the words “You should seek advice from a solicitor or a Chamber Magistrate as to the possible consequences in costs of this document”, or words to a like effect.

3 Application

(1)  Subject to this rule, in any action each of the plaintiff and the defendant may make to the other an offer to compromise any claim in the action on the terms specified in the offer.

(2)  A plaintiff may not make an offer under subrule (1) unless the plaintiff has supplied to the defendant such particulars of the plaintiff’s claim, and copies or originals of such documents available to the plaintiff, as are necessary to enable the defendant to fully consider the offer.

(3)  Unless the court otherwise orders, where a plaintiff makes an offer under subrule (1), no order shall be made in favour of the defendant on the ground that the plaintiff has not supplied, or has not supplied sufficient, particulars or documents as required by subrule (2) unless the defendant has informed the plaintiff in writing of that ground within 14 days after receipt of the offer.

4 Offer with further offer as to costs

(1)  An offer of an amount expressed to be inclusive of costs is not an offer for the purposes of this Part.

(2)  A party may make an offer under rule 3 (1) (a principal offer) to compromise any claim in an action and, at the same or a subsequent time, an offer (a costs offer) to compromise any claim of the plaintiff for costs incurred in the action up to the date of any acceptance of the principal offer by paying or accepting an amount specified in the costs offer.

(3)  Where a principal offer and a costs offer are made under subrule (2) and the offeree accepts the principal offer, the offeree may accept or fail to accept the costs offer.

(4)  A costs offer is of no effect for the purposes of this rule if the principal offer is not accepted.

(5)  Where:

(a)  a plaintiff accepts a principal offer and fails to accept a costs offer, and

(b)  the plaintiff applies to the court for an order for costs of the action, and

(c)  the court is of opinion that the costs offer was in an amount not less than the costs reasonably incurred (on a party and party basis) by the plaintiff up to and including the day when the principal offer was accepted,

the court may in its discretion award the costs of the application to the defendant.

5 Time for making or accepting offer

(1)  An offer may be made at any time before the time prescribed by subrule (8) 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 it is open to be accepted but the time expressed shall not be less than 28 days after the offer is made.

(4)  An offeree may accept the offer by serving notice of acceptance on the offeror before:

(a)  the expiration of the time specified in accordance with subrule (3) or, if no time is specified, the expiration of 28 days after the offer is made, or

(b)  the time prescribed by subrule (8) in respect of the claim to which the offer relates,

(c)    (Repealed)

whichever event is the soonest.

(5)  An offer shall not be withdrawn during the time it is open to be accepted, unless the court otherwise orders.

(6)  An offer is open to be accepted within the period referred to in subrule (4) notwithstanding that during that period the party to whom the offer (the first offer) is made makes an offer (the second offer) to the party who made the first offer whether or not the second offer is made in accordance with this Part.

(7)  Where an offer is accepted under this rule, any party to the compromise may apply to the court to enter judgment accordingly.

(8)  The time prescribed for the purposes of subrules (1) and (4) and Part 31A rule 20 is:

(a)  where the action has been referred under section 21H of the Act for determination pursuant to the Arbitration (Civil Actions) Act 1983—after the conclusion of the arbitration hearing, or

(b)  in any other case—after the Magistrate gives his or her decision or begins to give reasons for his or her decision on a judgment (except an interlocutory judgment), whichever is the sooner.

6 Time for compliance

An offer providing for the payment of a sum of money, or for the doing of any other act, shall, unless the notice of offer otherwise provides, be taken to provide for the payment of that sum or the doing of that act within 28 days after acceptance of the offer.

7 Withdrawal of acceptance

(1)  A party who accepts an offer may, by serving a notice of withdrawal on the offeror, withdraw the acceptance:

(a)  where the offer provides for payment of a sum of money or the doing of any other act and the sum is not paid to the offeree or into court or the act is not done within 28 days after acceptance of the offer or within such other time as the offer provides, or

(b)  where the court gives leave so to do.

(2)  On withdrawal of an acceptance all steps in the action taken in consequence of the acceptance shall have such 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),

(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 action.

8 Offer without prejudice

An offer made in accordance with this Part shall be taken to have been made without prejudice, unless the notice of offer otherwise provides.

9 Disclosure of offer to court

(1)  No statement of the fact that an offer has been made shall be contained in any document filed in the action.

(2)  Where an offer has not been accepted, then, subject to subrule (3), no communication with respect to the offer shall be made to the court at the hearing, or, as the case may require, to the arbitrator.

(3)  An offer made in accordance with this Part may be disclosed to the court or, as the case may require, to the arbitrator:

(a)  for the purposes of Part 31A rule 20 (4) or (6)—after all questions of liability and the relief to be granted have been determined,

(b)  as provided by Part 31A rule 20 (9),

(c)  where a notice of offer provides that the offer is not made without prejudice, or

(d)  in so far as disclosure is necessary to enable the offer to be taken into account for the purposes of section 73 (4) of the Motor Accidents Act 1988 or section 151M of the Workers Compensation Act 1987.

10 Failure to comply with accepted offer

(1)  Where a party to an accepted offer fails to comply with the terms of the offer, then, unless for special cause the court otherwise orders, the other party shall be entitled, as he may elect, to:

(a)  such judgment or order as is appropriate to give effect to the terms of the accepted offer, or

(b)  where the party in default is the plaintiff, an order that the action be dismissed, and, where the party in default is the defendant, an order that the defence be struck out, and in either case to judgment accordingly.

(2)  Where a party to an accepted offer fails to comply with the terms of the offer, and a defendant in the action has brought a cross-claim, or filed a third party notice, which is not the subject of the accepted offer, the court may make such order or give such judgment under subrule (1) and make such order that the action, cross-claim, or claim on the third party notice be continued as it thinks fit.

11 (Repealed)

12 Multiple defendants

Where 2 or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a debt or damages and rights of contribution or indemnity appear to exist between the defendants, Part 31A rule 20 shall not apply to an offer unless:

(a)  in the case of an offer made by the plaintiff—the offer is made to all defendants, and is an offer to compromise the claim against all of them,

(b)  in the case of an offer made to the plaintiff:

(i)  the offer is to compromise the claim against all defendants, and

(ii)  where the offer is made by 2 or more defendants—by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the plaintiff for the whole amount of the offer.

13 Offer of contribution

(1)  Where in an action:

(a)  a party (the first party) stands to be held liable to another party (the second party) to contribute towards any debt or damages which may be recovered against the second party in the action,

(b)  the first party, at any time after filing a defence, makes an offer to the second party to contribute to a specified extent to the debt or damages, and

(c)  the offer is made without prejudice to the first party’s defence,

the offer shall not be brought to the attention of the court or, as the case may require, of the arbitrator, until all questions of liability or amount of debt or damages have been decided.

(2)  In subrule (1), a reference to debt or damages includes a reference to interest claimed:

(a)  under section 39A of the Act, on the debt, or

(b)  under section 39A of the Act or section 73 of the Motor Accidents Act 1988 or section 151M or the Workers Compensation Act 1987, on the damages.

Part 18 Cross-claims

pt 18, rule 1: Am 23.8.1991; 22.9.2000.

1 Commencement

(1)  A defendant may bring a cross-claim under section 15 of the Act by filing notice of the cross-claim in duplicate not later than the filing of the notice of grounds of defence in the action, or, where no notice of grounds of defence is filed, within 28 days after service of the statement of claim in the action.

(2)  The notice of a cross-claim referred to in subrule (1) shall contain such particulars of and in respect of the cause of action on which the cross-claim is brought as would be required to be contained in the statement of claim if the defendant brought a separate action on that cause of action.

(3)  The registrar shall, as soon as practicable after the filing of a notice of cross-claim, give or send by post a copy thereof to the plaintiff or the plaintiff’s solicitor.

[cf DCR Pt 20 r 1 (2)–(4)]

(4)  If a cross-claim for an amount of more than $10,000 is brought in an action that would otherwise have been heard and determined in a court’s Small Claims Division, the registrar must, as soon as practicable, remove the action to the General Division and give or send to the parties notice of the fact that the action has been removed into that Division.

2 Multiple cross-claims [cf DCR Pt 20 r 3]

A defendant who has more than one cause of action against the plaintiff may bring more than one cross-claim in answer to the same action, but may not in answer to that action claim a total amount in excess of the amount for which an action may be brought under the Act on the causes of action on which the cross-claims are brought.

3 Conduct of proceedings generally [cf DCR Pt 20 r 4]

(1)  Subject to this Part, the proceedings on a cross-claim shall follow as nearly as may be the course of proceedings in an action.

(2)  Subject to this Part, and without limiting the generality of subrule (1), these rules apply to a cross-claim and the proceedings arising from it as they apply to an action.

(3)  Subrules (1) and (2) apply as if:

(a)  the notice of cross-claim were a statement of claim,

(b)  the cross-claimant were a plaintiff, and

(c)  the defendant to the cross-claim were a defendant.

(4)  A plaintiff in answer to a cross-claim shall have the same rights as a defendant has in answer to an action, but shall not at the hearing be entitled to rely on any ground of defence to the cross-claim unless the plaintiff has within such reasonable time as the circumstances of the case permit given to the court and the defendant notice of that ground.

(5)  Withdrawal, discontinuance, or striking out, of:

(a)  the whole or part of an action shall not prevent the continuance of a cross-claim, or

(b)  the whole or part of a cross-claim shall not prevent the continuance of an action.

4 Separate trials [DCR Pt 20 r 5 (1)]

Where a defendant brings a cross-claim the court may, if the trial in one proceedings of the action and the cross-claim would in its opinion embarrass or delay the trial of the proceedings or be otherwise inconvenient, order separate trials or make such other order as it thinks fit.

Part 19 Third party procedure

1 Third party notice [cf DCR Pt 21 r 1; cf Law Reform (Miscellaneous Provisions) Civil Claims Third Party Procedure Rule 1977 cl 5]

(1)  Where a defendant in any action claims as against any person (in this Part called the third party) that the defendant is entitled to:

(a)  contribution towards or indemnity for any judgment recovered against the defendant by the plaintiff in the action, or

(b)  any other relief or remedy relating to or connected with the subject of the action,

the defendant may, not later than the filing of the notice of the grounds of defence in the action, or, where no notice of grounds of defence is filed, within 28 days after service on the defendant of the statement of claim in the action, file a third party notice.

(2)  A third party notice shall contain such particulars of the defendant’s claim against the third party as the statement of claim would be required to contain if the defendant had separately sued the third party on that claim.

(3)  The defendant shall when filing a third party notice lodge with the registrar as many copies of the notice as there are parties in the action prior to the joining of the third party.

(4)  The registrar shall, as soon as practicable after any copies are lodged with the registrar under subrule (3):

(a)  seal the copies,

(b)  give or send by post one of the copies to the plaintiff or the plaintiff’s solicitor, and

(c)  return the others of the copies to the defendant.

2 Stay of proceedings [DCR Pt 21 r 2; cf LR (MP) CCTPPR cl 6]

(1)  Where a defendant who has filed notice of grounds of defence in an action files a third party notice, proceedings in the action shall be stayed until the third party files notice of grounds of defence to the defendant’s claim against the third party or until the expiration of 28 days after service on the third party of the third party notice, whichever first occurs.

(2)  Where proceedings are stayed under subrule (1) and the third party notice is not served on the third party, or an affidavit of that service is not filed, within a reasonable time, the court may, on the application of the plaintiff, remove the stay of proceedings.

3 Service [cf DCR Pt 21 r 3; cf LR (MP) CCTPPR cl 7]

(1)  A defendant who files a third party notice shall as soon as practicable thereafter serve, or cause to be served, the third party notice on the third party and on every other party to the action other than the plaintiff, and where the third party was not a party to the action before the filing of the third party notice, shall also serve on the third party a copy of the statement of claim in the action and of any notice of grounds of defence filed in the action before the filing of the third party notice.

(2)  A defendant who has served, or caused to be served, a third party notice on the third party shall as soon as practicable thereafter file an affidavit of that service and inform each party to the action, other than the defendant and the third party, in writing, of the date of that service.

4 Rights and liabilities of third party [DCR Pt 21 r 4; cf LR (MP) CCTPPR cll 4, 8 (1)]

(1)  A third party shall, as from the time of service on the third party of a third party notice, be a party to the action in which the notice was filed, and, subject to these rules, the third party shall have the same rights, and be subject to the same liabilities, in respect of the action as the third party would have had and been subject to if the third party had been sued in a separate action by the defendant.

(2)  Without limiting the generality of subrule (1), the third party shall include in the third party’s notice of grounds of defence any grounds on which the third party disputes the plaintiff’s claim against the defendant or the defendant’s claim against the third party.

5 Trial [cf DCR Pt 21 r 5; cf LR (MP) CCTPPR cl 10]

(1)  The court may direct what part the third party shall take in the trial and generally the extent to which the usual procedures at a trial shall be modified because of the joinder of the third party.

(2)  As between the defendant by whom the third party notice has been served and the third party, the court may give any judgment or make any order which might properly have been given or made if the claim against the third party had been made in a separate action.

(3)  A defendant shall not, except by leave of the court (which leave may be granted on terms), enforce any judgment given in the defendant’s favour against a third party until any judgment given in favour of the plaintiff against the defendant in the same action has been satisfied.

6 Separate trials [DCR Pt 21 r 6; LR (MP) CCTPPR cl 11]

The court may, if the trial in the one action of the issues between the plaintiff and the defendant and the issues between the defendant and the third party would in its opinion embarrass or delay the trial of the action or be otherwise inconvenient, order separate trials or make such other order as it thinks fit.

7 Fourth and subsequent parties [DCR Pt 21 r 7; cf LR (MP) CCTPPR cll 13, 14]

(1)  Where a third party makes against any person such a claim as is mentioned in rule 1 (1) the third party may join the person as a fourth party in the action, and subsequent parties may be joined in succession in the like circumstances, each by the party previous to that party in order of joinder.

(2)  The provisions of this Part apply to parties joined subsequently to the third party as though in each group of 3 parties subsequently joined the first of those parties were a plaintiff, the second a defendant, and the third a third party.

8 Co-defendants [cf DCR Pt 21 r 7A; LR (MP) CCTPPR cl 9]

Where a defendant makes against any other defendant in the same action a claim referred to in rule 1 (1), the defendant may file and serve on that other defendant a notice making that claim, and the same procedure shall apply as would be applicable under this Part if that other defendant were a third party, but nothing in this rule shall prejudice the rights of the plaintiff against any other defendant.

9 Costs [cf DCR Pt 21 r 8 (1); cf LR (MP) CCTPPR cl 16]

Where a third party has been joined in an action, the court:

(a)  may order any party to pay the costs incurred by any other party,

(b)  may order any party to pay any costs which would otherwise be payable by any other party, and

(c)  may make such other order as to costs as the justice of the case may require.

Part 20 Medical examination, inspection of property etc

pt 20, hdg: Subst 31.8.1990.

pt 20, rule 6: Rep 31.8.1990.

pt 20, rule 8: Ins 31.8.1990. Am 22.9.1995.

pt 20, rule 9: Ins 31.8.1990. Rep 22.9.1995.

pt 20, rule 10: Ins 31.8.1990.

Division 1 Medical examination

pt 20, div 1, hdg: Ins 31.8.1990.

1 Application and definitions [DCR Pt 23 r 1]

(1)  This Part applies to any action in which:

(a)  the physical or mental condition of a person is relevant to any matter in question, and

(b)  either:

(i)  that person is a party, or

(ii)  a party claims relief for the benefit of that person pursuant to the Compensation to Relatives Act 1897.

(2)  In this Part:

first party means the party mentioned in subrule (1) (b).

medical examination includes any examination by a medical expert.

medical expert includes dentist, medical practitioner, occupational therapist, optometrist, physiotherapist and psychologist.

person concerned means the person mentioned in subrule (1) (a).

2 Notice for examination [DCR Pt 23 r 2]

(1)  Any party other than the first party may serve on the first party a notice in accordance with this rule for the medical examination of the person concerned.

(2)  A notice for medical examination shall be a reasonable request by the party giving the notice that the person concerned submit to examination by a specified medical expert at a specified time and place.

3 Expenses [DCR Pt 23 r 3]

A party who serves a notice for medical examination shall, on request by the first party, pay to the first party a reasonable sum to meet the travelling and other expenses of the person concerned of and incidental to the medical examination including the expenses of having a medical expert chosen by the person concerned attend that person’s examination pursuant to rule 7.

4 Non-compliance with notice [DCR Pt 23 r 4 (1)]

Where a notice for medical examination of a person concerned is served pursuant to rule 2 and the person concerned does not submit to examination in accordance with the notice, the court may, on terms, stay proceedings as to any claim in the action by or for the benefit of the person concerned.

5 Order for examination [DCR Pt 23 r 5]

(1)  The court may, on terms, make orders for the medical examination of a person concerned, including an order that a person concerned submit to examination by a specified medical expert at a specified time and place.

(2)  Where the court orders that a person concerned submit to examination by a medical expert, the person concerned shall do all things reasonably requested and answer all questions reasonably asked of that person by the medical expert for the purposes of the examination.

6 (Repealed)

7 Medical expert for person concerned [DCR Pt 23 r 6]

The person concerned may have a medical expert chosen by the person attend the person’s examination.

Division 2 Inspection of property etc

pt 20, div 2, hdg: Ins 31.8.1990.

8 Inspection

(1)  The court may, for the purpose of enabling the proper determination of any matter in question in any action, make orders, on terms, for:

(a)  the inspection of any property, or

(b)  the taking of samples of any property, or

(c)  the making of any observation of any property, or

(d)  the trying of any experiment on or with any property, or

(e)  the observation of any process.

(2)  An order under this rule may authorise any person to enter any land or to do any other thing for the purpose of gaining access to the property.

(3)  A party applying for an order under this rule must, so far as practicable, serve notice of the motion on each person who would be affected by the order if made.

(4)  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.

(5)  The court shall not make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995.

9 (Repealed)

Division 3 Default

pt 20, div 3, hdg: Ins 31.8.1990.

10 Default

(1)  Where a party fails to comply with an order under this Part, or with the requirements of rule 5 (2), the court may make such order as it thinks fit, including:

(a)  an order that the party in default pay the costs of any other party occasioned by the default, and

(b)  if the party in default is a plaintiff, an order that proceedings in the action be stayed or the action be dismissed as to the whole or any part thereof, and

(c)  if the party in default is a defendant, an order that the party’s defence be struck out and that an order for judgment be made or default judgment be entered, as the case requires.

(2)  Where a person concerned, not being a party, fails to comply with an order under this Part, or with the requirements of rule 5 (2), the court may order that proceedings in the action be stayed or the action be dismissed as to any claim for the benefit of that person.

(3)  This rule does not limit the powers of a court to punish for contempt.

Part 21 Hearing

pt 21, rule 1AA: Ins 23.8.1991. Am 28.5.1993.

pt 21, rule 1A: Ins 27.4.1990.

pt 21, rule 3: Am 27.4.1990.

pt 21, rule 4: Am 27.4.1990.

pt 21, rules 5–7: Ins 27.4.1990.

pt 21, rules 8–10: Ins 23.8.1991.

Division 1 General Division

pt 21, div 1, hdg: Ins 23.8.1991.

1AA Application of Division

(1)  This Division applies to actions in a court’s General Division but, subject to subrule (1A), not to actions in a court’s Small Claims Division.

(1A)  Rule 2 applies to actions in a court’s Small Claims Division.

(2)  Subrule (1) does not prevent a court from making any order or giving any direction.

1A Definition

For the purposes of this Part:

(a)  where the burden of proof on any issue lies on the plaintiff, the plaintiff is the beginning party and the defendant is the opposite party, and

(b)  where the burden of proof on all the issues lies on the defendant, the defendant is the beginning party and the plaintiff is the opposite party.

1 Time of hearing [cf DCR Pt 26 r 4]

(1)  Where a date for the hearing of an action has been fixed under Part 9 rule 3 (1) or Part 9 rule 4 (2) (b) or (3) (a), the hearing may be held on that or any later date.

(2)  Notwithstanding subrule (1) and notwithstanding the fixing of a date for the hearing of an action as referred to in that subrule, the court may make such order as it thinks fit for fixing the date and time of the hearing.

2 Action called on for hearing [DCR Pt 26 r 5A]

(1)  Subject to these rules, where an action that has been set down for hearing is called on for hearing:

(a)  if the plaintiff and a defendant appear, the court may proceed to hear and dispose of the action as against that defendant,

(b)  if the plaintiff does, but a defendant does not, appear, the court may proceed to the hearing of the action against that defendant on the part of the plaintiff only, or

(c)  if, in the case of an action commenced by the lodging of a statement of liquidated claim, the plaintiff does, but a defendant does not, appear, the court may, without proceeding to the hearing of the action, give judgment against that defendant on evidence of:

(i)  the amount then due to the plaintiff in respect of the cause of action for which the action was commenced, and

(ii)  any payments made or credits accrued since the commencement of the action in reduction of the amount of the plaintiff’s claim or costs.

(2)  Where the court proceeds to the hearing of the action on the part of the plaintiff only, as referred to in subrule (1) (b), or gives judgment as referred to in subrule (1) (c), its judgment:

(a)  may, on sufficient cause being shown, be set aside by order of the court on terms, and

(b)  shall, if not set aside, be as final and conclusive between the parties to the action as if both parties had appeared.

3 Striking out proceedings

(1)  The court may, if it thinks fit, strike out any proceedings at any time on terms, and without affecting the generality of the foregoing provisions of this subrule, the court may so strike out any proceedings if:

(a)  no party appears,

(b)  a defendant does, but the plaintiff does not, appear, or

(c)  a respondent does, but the applicant does not, appear.

(2)  Where proceedings are struck out under subrule (1), the court may, on the application of any party, order that the proceedings be reinstated on terms, and without affecting the generality of the foregoing provisions of this subrule, the proceedings may be so reinstated on such terms and conditions as to costs, the staying of the proceedings, and of any subsequent proceedings brought on the same or substantially the same cause of action, until payment of costs, and the priority of the hearing of the proceedings as the court thinks fit.

[cf DCR Pt 26 r 5B]

(3)  In this rule:

proceedings includes any part of any proceedings.

4 Conduct of the hearing [DCR Pt 26 r 6]

(1)    (Repealed)

(2)  The court may give directions as to the order of evidence and addresses and generally as to the conduct of the hearing of any action.

(3)  Subject to subrule (2):

(a)  where the only parties to any action are one plaintiff and one defendant, 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.

(4)  The beginning party may make an address opening the party’s case and may then adduce the party’s evidence.

(5)  Where, at the conclusion of the evidence for the beginning party, 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.

(6)  If, pursuant to subrule (5), the opposite party elects not to adduce evidence, the beginning party may make an address closing the beginning party’s case and then the opposite party may make an address stating the opposite party’s case.

(7)  If, pursuant to subrule (5), the opposite party elects to adduce evidence, the opposite party may make an opening address before adducing the opposite party’s evidence and after adducing the evidence the opposite party may make an address closing the opposite party’s case and thereupon the beginning party may make an address closing the beginning party’s case.

5 Dismissal

(1)  The court, on the application of the plaintiff in any action, may, at any time before judgment is given, make an order, on terms, for the dismissal of the action so far as concerns any cause of action on which the action is brought.

(2)  Where the plaintiff is the beginning party and no judgment has been given, a defendant may, at any time after the conclusion of the evidence in the plaintiff’s case in chief, move for an order for the dismissal of the plaintiff’s action, or of the action so far as concerns any cause of action on which the plaintiff claims against that defendant, on the ground that, on the evidence given, a judgment for the plaintiff could not be supported.

(3)  The plaintiff may decline to argue the question raised by a defendant’s motion.

(4)  Unless the plaintiff declines to argue the question so raised, the court shall, if the ground of the defendant’s motion is established, make an order for the dismissal of the plaintiff’s action, or of the action so far as concerns the cause of action in question, as the nature of the case requires.

(5)  If the plaintiff declines to argue the question, or if the defendant’s motion is refused, the defendant may adduce evidence or further evidence or may make an application for judgment under rule 6.

(6)  If the court makes an order for the dismissal of the plaintiff’s action, or of the action so far as concerns a cause of action, the plaintiff shall pay the defendant’s costs of the action, or of the action so far as concerns the cause of action in question, as the case may be.

(7)  If fewer than all defendants move the court under this rule, the court shall not entertain the motion before the conclusion of the evidence given for all parties.

6 Judgment by direction

(1)  This rule applies to the hearing of an action.

(2)  An opposite party may:

(a)  after the conclusion of the evidence in the beginning party’s case in chief, or

(b)  after the conclusion of the evidence given for all parties,

move the court for judgment for that opposite party in the action generally, or on any claim for relief in the action, on the ground that, on the evidence given, a judgment for the beginning party could not be supported.

(3)  If the ground of an opposite party’s motion is established, the court shall give judgment for the opposite party accordingly.

(4)  If an opposite party moves the court under this rule, that party may not adduce evidence or further evidence in the action generally (where the motion is for judgment in the action generally) or on the claim for relief in question (where the motion is for judgment in the action on a particular claim).

(5)  If fewer than all opposite parties move the court under this rule, the court shall not entertain the motion before the conclusion of the evidence given for all parties.

7 Stay to secure costs

Where:

(a)  the court makes an order for the dismissal of an action or striking proceedings out,

(b)  a party is, by reason of the order, liable to pay the costs of another party occasioned by the action or proceedings, and

(c)  before payment of the costs, the party brings against that other party further proceedings on the same, or substantially the same, cause of action as that on which the action was, or the proceedings were, brought,

the court may, on the application of that other party, stay the further proceedings until those costs are paid.

Division 2 Small Claims Division

pt 21, div 2, hdg: Ins 23.8.1991.

8 Application of Division

This Division applies to actions in a court’s Small Claims Division but not to actions in a court’s General Division.

9 Procedure

Except to the extent to which the Act and these rules otherwise provide, the procedure at and in respect of the hearing of an action are to be as determined by the court.

10 Dismissal and striking out

(1)  Without limiting the generality of rule 9, a court may, if it considers appropriate, make an order, on terms, for the dismissal of an action or for the striking out of an action.

(2)  If an action is struck out under this rule, the court may, at the request of any of the parties, make an order, on terms, for the reinstatement of the action.

(3)  If:

(a)  a court makes an order for the dismissal of an action or for the striking out of an action and orders any of the parties to pay the whole or any part of the costs of another party, and

(b)  before making such a payment, the party so ordered brings a further action against the other party on the same, or on substantially the same, cause of action,

the court may, at the request of the other party, stay proceedings on the further action until that payment has been made.

Part 22 Assessment

1 Separate claims [DCR Pt 27 r 1]

Where an order for judgment is made against any party and the action is carried on against that party on any cause of action liability on which is not deemed to be admitted on the making of the order, or against any other party, the hearing of the action as to the assessment of the amount to be recovered by the plaintiff in consequence of the order for judgment shall, unless the court otherwise orders, be held together with any other hearing in the action and the action shall be set down for hearing accordingly.

2 Damages to time of assessment [DCR Pt 27 r 2]

(1)  Where damages are to be assessed in respect of:

(a)  any continuing cause of action,

(b)  repeated breaches of recurring obligations, or

(c)  intermittent breaches of a continuing obligation,

the damages shall be assessed down to the time of assessment, including damages for breaches occurring after the commencement of the action.

(2)  Subrule (1) applies to the assessment of damages after an order for judgment has been made or otherwise.

Part 23 Evidence: general

pt 23, rule 1A: Ins 23.8.1991.

pt 23, rule 1B: Ins 18.12.1992. Rep 22.11.1996.

pt 23, rule 1C: Ins 18.12.1992. Subst 29.3.1996.

pt 23, rules 1D, 1E: Ins 19.10.2001.

pt 23, rule 2: Am 22.9.1995; 19.10.2001.

pt 23, rule 3: Am 22.9.1995.

pt 23, rule 3A: Ins 22.9.1995.

1A Application of Part

(1)  This Part applies to actions in a court’s General Division but not to actions in a court’s Small Claims Division.

(2)  Subrule (1) does not prevent a court from making any order or giving any direction.

1 Informal proof

The court may at any stage of any action dispense with the rules of evidence for proving any matter that is not genuinely in dispute, and may dispense with such rules of evidence as might cause expense or delay which would, in the opinion of the court, outweigh the value of those rules in assisting the court to reach a just decision in the action.

1B (Repealed)

1C Evidence by telephone, video link etc

A court may in any proceedings order, on terms, that evidence or submissions may be received by telephone, video link or other form of communication.

1D Expert witnesses

(1)  For the purposes of this rule and rule 1E:

expert witness means an expert engaged for the purpose of:

(a)  providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or

(b)  giving opinion evidence in proceedings or proposed proceedings.

the code means the expert witness code of conduct in Schedule 1.

(2)  Unless a court otherwise orders:

(a)  at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert must provide the expert with a copy of the code, and

(b)  unless an expert witness’s report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it:

(i)  service of the report by the party who engaged the expert witness is not valid service for the purposes of these rules or of any order or practice note, and

(ii)  the report is not to be admitted into evidence, and

(c)  oral evidence is not be received from an expert witness unless:

(i)  he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and

(ii)  a copy of the acknowledgment has been served on all parties affected by the evidence.

(3)  If an expert witness furnishes to the engaging party a supplementary report, including any report indicating that the expert witness has changed his or her opinion on a material matter expressed in an earlier report by the expert witness:

(a)  the engaging party must forthwith serve the supplementary report on all parties on whom the engaging party has served the earlier report, and

(b)  the earlier report must not be used in the proceedings by the engaging party, or by any party in the same interest as the engaging party on the question to which the earlier report relates, unless paragraph (a) is complied with.

(4)  This rule does not apply to an expert engaged before this rule commences.

1E Conference between experts

(1)  A court may, on application by a party or of its own motion, direct expert witnesses to:

(a)  confer and may specify the matters on which they are to confer, and

(b)  endeavour to reach agreement on outstanding matters, and

(c)  provide the court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement.

(2)  An expert so directed may apply to the court for further directions.

(3)  The court may direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively.

(4)  The content of the conference between the expert witnesses is not to be referred to at the hearing or trial unless the parties affected agree.

(5)  The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.

2 Report by expert [cf DCR Pt 28 r 8; cf LC (CC) R r 99]

(1)  This rule applies in respect of any action subject to:

(a)  any order made by the court at any time,

(b)  any order made by the registrar at any call-over of the action, and

(c)  any agreement between the parties.

(2)  Subject to rule 1D (2) (b) (ii), a written report made by an expert witness shall be admissible in evidence in an action as to:

(a)  any matter of the expert opinion of the maker of the report contained in it, and

(b)  any fact stated in it which is known to the maker as a result either of the maker’s own observations or of the maker’s general professional knowledge or experience,

if the party tendering the report, at least 14 days before the hearing, serves the report on each other party who is a plaintiff or who has filed notice of grounds of defence.

(3)  A party may require the attendance for cross-examination of a person making a report mentioned in subrule (2).

(4)  A requirement under subrule (3) shall be made to the party tendering the report.

(5)  Where the attendance of a person is required under subrule (3), the person’s report shall not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the person attends or is dead or the court grants leave to use the report.

(6)  Where a person making a report is cross-examined, the party tendering the report may re-examine the person.

3 Expert evidence and hospital reports [DCR Pt 28 r 9]

(1)  This rule applies:

(a)  to an action in which damages are claimed in respect of the death of a person or in respect of personal injuries, and

(b)  to any other action in which the court may at any time, on the application of a party or of its own motion, direct that it shall apply.

(2)  In this rule:

expert’s report means a statement by an expert in writing which sets out the expert’s opinion and the facts on which the opinion is formed and which contains the substance of the expert’s evidence which the party serving the statement intends to adduce in evidence in chief at the hearing.

hospital report means a statement in writing concerning a patient made by or on behalf of a hospital which the party serving the statement intends to adduce in evidence in chief at the hearing.

(3)  Unless the court otherwise orders, in an action to which this rule applies, each party shall, at least 14 days before the hearing, serve experts’ reports and hospital reports on each other party who has an address for service in the action.

(4)  Where any action to which this rule applies is listed for call-over, the Magistrate or registrar may if the Magistrate or registrar thinks fit fix an exchange date, which shall not be later than 14 days before the day fixed for the hearing of the action, and where an exchange date is so fixed each party who is required under subrule (3) to serve a report shall serve it on the exchange date.

(5)  An application to the court for an order under subrule (3) (other than an order solely for abridgement or extension of time) may be made without serving notice of the motion.

(6)  In an action to which this rule applies, except with the leave of the court or by consent of the parties:

(a)  the oral evidence in chief of any expert is not admissible unless that evidence is covered by the expert’s report served in accordance with this rule, and

(b)  neither an expert’s report nor a hospital report is admissible when tendered under section 63, 64 or 69 of the Evidence Act 1995 unless it has been served in accordance with this rule.

(7)  For the purposes of subrule (6), evidence is covered by a report if the report contains the substance of the matters sought to be adduced in evidence.

3A Notice under section 67 or 99 of the Evidence Act 1995

(1)  Notice for the purposes of section 67 or 99 of the Evidence Act 1995 shall, unless the court otherwise orders, be given 14 days before the hearing.

(2)  If an intended witness to whose evidence a notice mentioned in this rule relates does not give evidence, no party may put the notice in evidence at the hearing without the leave of the court.

(3)  Where the party serving the notice calls the witness at the hearing:

(a)  the party may not, except with the leave of the court, adduce, in respect of matters the subject of the notice, evidence from the witness which is not included in the notice served, except in relation to new matters which have arisen in the course of the hearing,

(b)  the court may direct that the notice served, or part of it, shall stand as the evidence, or part of the evidence, in chief of the witness, and

(c)  whether or not the notice or any part of it is referred to during the evidence in chief of the witness, any party may put the notice or any part of it in cross-examination of the witness.

4 Plans, photographs and models [DCR Pt 28 r 11]

(1)  Where a party intends to tender any plan, photograph or model at a hearing, the party shall, not less than 7 days before the commencement of the 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.

5 Proof of court documents [DCR Pt 28 r 12]

(1)  A document purporting to be marked with the seal of the court is admissible in evidence without further proof.

(2)  An office copy of a document filed in or issued out of the court is admissible in evidence in all actions and between all parties to the same extent as the original document would be admissible.

(3)  A document purporting to be marked with the seal of the court and to be a copy of a document filed in or issued out of the court it admissible as an office copy of the latter document without further proof.

6 Production of court documents [DCR Pt 28 r 13]

Where, for the purpose of any action, a person, by request in writing, requires the registrar to produce to 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.

7 Attendance and production [cf DCR Pt 28 r 14]

(1)  The court may make orders for:

(a)  the attendance of any party for the purpose of being examined, or

(b)  the attendance of any party and production by the party 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 party before, and production by the party to, the court or any registrar or arbitrator authorised to take evidence, on any hearing or other occasion.

(3)  Subrules (1) and (2) apply whether or not the party for whose attendance the order is made has been required to attend by subpoena.

8 Leading questions to witness [DCR Pt 28 r 15]

Where a person is examined in relation to an investigation, inspection or report made by the person 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 that person leading questions.

9 Production on notice [DCR Pt 28 r 18]

Where a party to any action serves on another party notice requiring the party served to produce at any hearing of the action, or before any registrar or arbitrator having authority to take evidence in the action, 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.

10 Default [cf DCR Pt 22 r 15]

Where a party makes default in compliance with an order made under rule 7 (1) or a notice served under rule 9, the court may make such order as it thinks fit, including:

(a)  an order that the party in default pay the costs of any other party occasioned by the default,

(b)  if the party in default is a plaintiff, an order that the action be stayed or dismissed as to the whole or any part of the plaintiff’s claim, or

(c)  if the party in default is a defendant, an order that his or her defence be struck out and that judgment be given accordingly.

Part 24 Subpoenas

pt 24, rule 3: Am 27.4.1990.

pt 24, rule 4: Rep 22.9.1995.

pt 24, rule 5: Am 18.2.1994; 17.6.1994.

pt 24, rule 6: Am 18.2.1994.

pt 24, rule 7: Subst 22.11.1996.

1 Definition [DCR Pt 29 r 1]

In this Part:

person named means, in relation to a subpoena, the person to whom the subpoena is addressed.

2 Conduct money [cf DCR Pt 29 r 2]

(1)  A subpoena shall not require the person named to attend or produce any document or thing on any day on which the person’s attendance is required unless an amount sufficient to meet the person’s reasonable expenses of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.

(2)  Subject to any direction by the court or registrar, the amount which would be payable in respect of the person named if the party issuing the subpoena were entitled to claim witness’ expenses in respect of that person as costs in the action shall be deemed to be the amount of the reasonable expenses of the person for the purposes of section 72 (9) of the Act.

3 Production by non-party [cf DCR Pt 29 r 3]

(1)  Where the person named in a subpoena for production of any document or thing is not a party to the proceedings, the subpoena shall, unless the court otherwise orders, permit the person to produce the document or thing to the registrar not later than the day before the first day on which the person’s attendance is required, instead of attending and producing the document or thing as required by the subpoena.

(2)  Where a document or thing is produced to the registrar pursuant to subrule (1), the registrar shall:

(a)  if the person producing the document or thing requires a receipt, give such a receipt to the person, and

(b)  produce the document or thing as the nature of the case requires or as the court may direct.

(3)  Where a document or thing is produced to the registrar pursuant to subrule (1) and before the document or thing is tendered to the court the hearing of the proceedings is adjourned, other than to a date then fixed, the subpoena shall no longer be of any force or effect, and the registrar shall be at liberty to return the document or thing to the person who produced it to the registrar.

(4)  Where a document or thing is produced to the registrar pursuant to subrule (1) in compliance with a subpoena which is returnable on a day mentioned in rule 5 (5) (b), (c) or (d), the registrar may, if the registrar thinks fit, at a reasonable time order that the subpoena shall no longer be of any force or effect and return the document or thing to the person who produced it to the registrar.

(5)  Subrules (3) and (4) do not operate to prevent the issue of a further subpoena requiring the production of a document or thing returned by the registrar under either of those subrules.

(6)  This rule does not apply to so much of a subpoena as requires the person named to attend to testify in any proceedings.

(7)  Where an action has been referred to an arbitrator in accordance with section 21H of the Act, this rule shall apply so that a reference to the registrar shall be taken to be a reference to the arbitrator.

4 (Repealed)

5 Issue [cf DCR Pt 29 r 6]

(1)  On request by a party, the registrar shall, unless the court otherwise orders, issue a subpoena to give evidence or a subpoena for production or a subpoena both to give evidence and for production.

(2)  Subrule (1) does not prevent the issue of a subpoena to give evidence and a subpoena for production to the same person in the same proceedings.

(3)  Subject to subrule (4), a party requesting the issue of a subpoena shall produce the subpoena to the registrar in duplicate.

(4)  Where a party requests in any proceedings the issue of several subpoenas to give evidence in similar terms but addressed to different persons, the party need produce only one original, but that original must contain the name of each person to whom any of the subpoenas is addressed.

(5)  A subpoena for production may, with the leave of the court or registrar, be made returnable on any day.

(6)  A party or the party’s solicitor or barrister may:

(a)  inspect documents produced in compliance with a subpoena, and

(b)  take copies of any documents so inspected,

if the court so orders, and any such order may be made on terms.

6 Time for service

(1)  A subpoena shall be served within a reasonable time.

(2)  Without affecting the generality of subrule (1), where a subpoena requires attendance or production or both on a specified date, the subpoena may not be served on the person named later than 5 days before the date so specified unless the court or registrar otherwise orders.

[DCR Pt 29 r 7]

(3)  Subject to subrule (4), service of a subpoena for production which requires production on a specified date, being a date not later than 21 days before the hearing of the action in which the subpoena is issued, may be effected by sending a copy of the subpoena by pre-paid post addressed to the person named at that person’s usual or last known residence or place of business.

(4)  Service pursuant to subrule (3) shall not be effective unless and until the subpoena is actually received by the person named.

7 Setting aside [DCR Pt 29 r 8]

The court may, of its own motion or on the motion of any person having a sufficient interest, set aside a subpoena wholly or in part.

8 Return of exhibits [cf DCR Pt 29 r 5]

(1)  Exhibits in any proceedings, whether produced on subpoena or otherwise, may be returned to the person who produced them to the court or registrar:

(a)  where the court makes an order for the return of the exhibits, forthwith, and

(b)  where, within a period of 35 days after judgment is given or a final order is made, the court makes no order for the return of the exhibits, and no application is made for a case to be stated, forthwith after the expiration of that period.

(2)  A person to whom exhibits may be returned under subrule (1) shall obtain the return of, and give to the registrar a receipt for, the exhibits as soon as practicable, and the registrar shall be responsible for the safe custody of any exhibits in the registrar’s keeping for a period only of 14 days after the first day on which the exhibits may be so returned.

9 Recognizances [LC (CC) R r 66]

For the purposes of section 72 (6) of the Act, a recognizance may be entered into before any member of the Police Force who is of or above the rank of sergeant or is for the time being in charge of a police station, any gaoler, any justice of the peace or any registrar.

Part 25 Affidavits

pt 25, rule 7: Subst 22.11.1996.

pt 25, rule 11: Am 22.11.1996.

1 Time for swearing [DCR Pt 30 r 1; cf LC (CC) R r 33]

(1)  An affidavit for use in any proceedings may be sworn before or after the commencement of the proceedings.

(2)  Notwithstanding the provisions of subrule (1), an affidavit:

(a)  verifying a statement under Part 11 rule 1 (1) (e) and filed to procure the entry of default judgment, or

(b)  filed to procure the issue of any process to enforce a judgment,

shall not be used for the purpose for which it is filed if it is sworn more than 14 days before it is filed.

2 Form [DCR Pt 30 r 2]

(1)  An affidavit shall be 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.

[cf LC (CC) R r 93]

(3)  Where it appears to the person before whom an affidavit is sworn that the deponent is illiterate or blind the person shall certify in or below the jurat that:

(a)  the affidavit was read in the person’s presence to the deponent, and

(b)  the deponent seemed to understand the affidavit.

(4)  Where an affidavit is made by an illiterate or blind deponent and a certificate in accordance with subrule (3) does not appear on the affidavit, the affidavit may not be used unless the court is satisfied that the affidavit was read to the deponent and that the deponent seemed to understand it.

(5)  Each page of an affidavit shall be signed by the deponent and by the person before whom it is sworn.

3 Alterations [DCR Pt 30 r 3]

(1)  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 or registrar 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, rewrites in the margin of the affidavit any words or figures written on the erasure and signs or initials them.

(2)  Subrule (1) applies to a document verified by affidavit as if the document were part of the affidavit.

4 Annexures and exhibits [DCR Pt 30 r 4]

(1)  A document to be used in conjunction with an affidavit shall, where convenient, be annexed to the affidavit.

(2)  Where annexure is inconvenient, the document may be made an exhibit to the affidavit.

(3)  An exhibit to an affidavit shall be identified by a certificate entitled in the same manner as the affidavit and made by the person before whom the affidavit is sworn.

5 Irregularity [DCR Pt 30 r 5; cf LC (CC) R r 93]

(1)  An affidavit may, unless the court or registrar otherwise orders, be filed notwithstanding any irregularity in form.

(2)  An affidavit may, with the leave of the court, be used notwithstanding any irregularity in form.

6 Filing [DCR Pt 30 r 6]

An affidavit may not be used without leave of the court unless it has been filed.

7 Service [DCR Pt 30 r 7]

(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)  A party who fails to serve an affidavit in accordance with the requirements of these rules or of any direction of the court may not use the affidavit without the leave of the court.

8 Scandal etc [DCR Pt 30 r 8]

Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, the court or registrar may order that:

(a)  the matter be struck out, or

(b)  the affidavit be taken off the file.

9 Evidence by affidavit

(1)  The court may, on terms, order in any proceedings that evidence of particular facts may be given by affidavit.

(2)  On an assessment of the amount to be recovered by a plaintiff after an order for judgment has been made, evidence of the identity of any motor vehicle, the damage sustained by a motor vehicle in a particular collision and the reasonable cost of repairing that damage shall be given by affidavit.

[cf LC (CC) R r 89]

(3)  Where the only matters in question in an action are a claim for interest under section 39A of the Act and costs, evidence of facts relating to the matter of interest may, unless the court otherwise orders, be given by affidavit.

[DCR Pt 28 r 4; cf LC (CC) R r 90A]

10 Cross-examination [DCR Pt 30 r 9; cf LC (CC) R r 91]

(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 the person does not attend, the 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 the person.

11 Affidavits of service [DCR Pt 30 r 10]

(1)  An affidavit of service shall contain:

(a)  a statement as to when, where, how and by whom service was effected,

(b)  a statement, using as nearly as practicable the actual words used by the person to whom the process was delivered, as to what, if anything, that person said, on the occasion of service, concerning the service or the subject-matter of the proceedings, and

(c)  a statement that the deponent is over the age of 16 years, or is of a named class of persons who by virtue of their status, occupation or otherwise must be over that age.

(2)  A document (other than a statement of claim) which is filed in the proceedings and has been served may be identified in an affidavit of service by:

(a)  exhibiting to the affidavit of service a copy of the document served, or

(b)  including in the affidavit of service a sufficient description of the document served.

(3)  A copy of a document (other than a statement of claim) which is filed in the proceedings and has been served shall not be annexed to an affidavit of service.

Part 26 Judgments and orders

pt 26, rule 2A: Ins 22.4.1994.

1 General relief [DCR Pt 31 r 8]

The court may, at any stage of any proceedings, on the application of any party, give such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim extending to that judgment or order in any originating process.

2 Written opinion [cf DCR Pt 31 r 9]

Where the court gives any judgment or makes any order and the opinion of the court is reduced to writing, it shall be sufficient to state orally the opinion without stating the reasons for the opinion, but the written opinion shall be then given by delivering it to a specified officer of the court for delivery to the parties.

2A Judgment in an action relating to the detention of goods

(1)  Where a plaintiff, under section 28A (2) of the Act, chooses between the forms of relief prescribed in section 28A (1) (b) and (c) of the Act, the plaintiff shall notify the choice to the court before judgment in the action is given.

(2)  Where a court gives judgment under section 28A (1) (a) or (b) of the Act, it shall in its judgment specify a time within which any delivery of the goods the subject of the judgment must take place.

(3)  Where a judgment debtor delivers or tenders goods in satisfaction or part satisfaction of a judgment given under section 28A (1) (a) or (b) of the Act, and the judgment creditor refuses to accept the goods on the ground that they are not the goods the subject of the judgment or that they are substantially damaged, the judgment creditor may apply to the court:

(a)  in the case of a judgment given under section 28A (1) (a) or an order under section 28A (3), subject to Part 30 rule 10A for committal of the judgment debtor, or, where the judgment debtor is a corporation, an officer of the judgment debtor, or

(b)  in the case of a judgment given under section 28A (1) (b), for an order that the judgment may be enforced as though it had been given under section 28A (1) (c).

3 Setting aside of judgment or order [DCR Pt 31 r 12A]

(1)  A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside, on terms, by order of the court, if the judgment was given or entered up, or the order was made, irregularly, illegally or against good faith.

(2)  A judgment or order of the court in any proceedings may, on terms, be set aside by order of the court if the parties to the proceedings consent.

4 Judgment for costs alone [cf DCR Pt 31 r 13]

(1)  Where a plaintiff would have been entitled to have default judgment entered up against a defendant, but it appears by affidavit filed by the plaintiff that the defendant has satisfied, or caused to be satisfied, the claim of the plaintiff after the commencement of the action, the plaintiff may have default judgment entered up against the defendant for costs alone.

(2)  Where in any action a defendant satisfies, or causes to be satisfied, the claim of the plaintiff after the commencement of the action, the court may, on the action being called on for hearing or on application by the plaintiff, give judgment for costs alone against the defendant.

5 Judicial notice of order [DCR Pt 31 r 14]

(1)  In any proceedings, the court may take judicial notice of any order of the court.

(2)  In any proceedings, the court may be informed of an order of the court by (among other things) reference to a note made by, or by the direction of, the Magistrate or registrar making the order.

6 Form of judgment or order [DCR Pt 31 r 16]

(1)  A form of judgment, and a form of order for signature by the registrar, shall when filed be sealed with the seal of the court.

(2)  Except where otherwise provided by these rules or required by the court, it shall not be necessary to file a form of judgment or order unless application is made for a certificate or certified copy thereof.

7 Copies and certificates [DCR Pt 31 r 16]

(1)  Subject to subrule (3), the registrar shall, on the filing of a request therefor, furnish to any party to any action a certificate of any judgment, or a certified copy of any judgment or order, a form of which is filed in the action.

(2)  A party applying for a certificate of a judgment shall include in the request filed therefor a statement of any amount paid in respect of the judgment.

(3)  While enforcement of a judgment is stayed the registrar shall not issue a certificate or certified copy of the judgment except by order of the court.

8 Service [DCR Pt 31 r 17]

A form of judgment or order need not be served unless these rules require service or the court directs service.

9 Payment of part of judgment debt

(1)  A judgment debtor shall not, except with the consent of the judgment creditor or the order of the court or registrar, be at liberty to pay into court under any judgment or order any lesser amount than that required to be paid under the judgment or order.

(2)  Where a registrar inadvertently receives into court any lesser amount mentioned in subrule (1) the registrar shall, if the judgment creditor so requests in writing, return the amount to the judgment debtor.

Part 27 Payment of judgment debt

pt 27, rule 1: Am 27.4.1990.

pt 27, rule 2: Am 27.4.1990; 9.11.1990; 22.11.1996.

1 Payment of judgment debt generally [DCR Pt 31A r 1]

(1)  The court may, on the application of any party to an action, or without any such application being made, when giving judgment in the action, order that the judgment debt (if any) be paid at such time, or by such instalments payable at such times, as it thinks fit.

(2)  Subject to this Part, every judgment debt shall be payable forthwith.

(3)    (Repealed)

(4)  Where the court or registrar orders payment of a judgment debt by instalments and does not require payment of the instalments to the registrar, the instalments are payable to the judgment creditor or at the judgment creditor’s direction.

(5)  Any payment by or on behalf of a judgment debtor made on account of a judgment debt to or at the direction of the judgment creditor shall, if accepted by or on behalf of the judgment creditor, operate to reduce the judgment debt by the amount of the payment.

(6)  Where the court makes an order under subrule (1) the order shall, while it remains in force, operate as a stay of enforcement of the judgment.

(7)  Where a judgment creditor files an affidavit for the purpose of requiring the issue of any document for or in connection with the enforcement of a judgment, the affidavit shall, in any action (whether in a court or in any other Court) by the judgment debtor against the registrar for the wrongful issue of the document, be conclusive evidence in favour of the registrar that at the time of the issue of the document:

(a)  where an amount is stated in the affidavit as having been paid in reduction of the judgment debt—that amount and no other amount had been paid, or

(b)  where there is a statement in the affidavit that no amount has been paid in reduction of the judgment debt—no amount had been paid,

by or on behalf of the judgment debtor in reduction of the judgment debt.

2 Order for instalments subsequently [cf DCR Pt 31A r 2; as to subrr (15), (16), cf DCR Pt 31A r 2 (11); LC (CC) R r 38A]

(1)  Whether or not an order in respect of a judgment debt has been made under rule 1 (1):

(a)  the judgment debtor may make an application in writing, supported by an affidavit as to the judgment debtor’s property and means, to the registrar for leave to pay the judgment debt then owing to the judgment creditor by such instalments payable at such times as may be specified in the application, or

(b)  the judgment creditor and the judgment debtor may enter into an agreement specifying the amount agreed to be then owing to the judgment creditor, and may in that agreement specify by what instalments payable at what times that amount is to be paid.

(2)  An application under subrule (1) (a) may, instead of being made personally by a judgment debtor, be made on the judgment debtor’s behalf by the spouse or de facto partner of the judgment debtor.

(3)  In subrule (2):

de facto partner has the meaning given to it by section 3 (1) of the De Facto Relationships Act 1984.

(4)  Where an application under subrule (1) (a) is made on behalf of a judgment debtor under subrule (2), the person making the application, or the judgment debtor, may swear the affidavit supporting the application.

(5)  An agreement under subrule (1) (b) may, instead of being entered into personally by the judgment creditor or the judgment debtor, be entered into by the party’s solicitor or barrister on the party’s behalf.

(6)  An agreement under subrule (1) (b) shall have no force or effect for the purposes of this rule unless the signature of every person executing it, other than a solicitor or barrister, is witnessed by a registrar, a solicitor or a justice of the peace.

(7)  Where:

(a)  an application is made by or on behalf of a judgment debtor under subrule (1) (a), the registrar shall forthwith consider and determine the application and may:

(i)  order that the judgment debt be paid by such instalments payable at such times as are specified in the application, or

(ii)  refuse to make such an order, or

(b)  an agreement under subrule (1) (b) is filed, the registrar shall forthwith order that the judgment debt be paid by such instalments payable at such times as are specified in the agreement,

and where the registrar makes an order under paragraph (a) or (b) the registrar shall, as soon as practicable thereafter, give or send to the judgment creditor and judgment debtor notice of the order and to the judgment creditor a copy of any affidavit lodged under subrule (1) (a).

(8)  Where an order is made by a registrar under subrule (7) pursuant to an application made by or on behalf of the judgment debtor under subrule (1) (a), the judgment creditor may, within 14 days after notice of the order and a copy of the affidavit were given to the judgment creditor under subrule (7) by the registrar, or, where that notice and copy were sent by post, within 14 days after they are deemed under Part 7 rule 19 to have been received, file notice of objection to the payment of the judgment debt by the instalments specified in the order.

(9)  Where under subrule (7) the registrar refuses to make an order, or where the judgment creditor files with the registrar a notice of objection in accordance with subrule (8), the registrar shall set down the judgment debtor’s application for hearing by the court, and shall as soon as practicable thereafter forward to the judgment creditor and the judgment debtor notice of the time and place set down for the hearing of the judgment debtor’s application, and, in the case of the registrar refusing to make the order, shall forward to the judgment creditor a copy of any affidavit lodged under subrule (1) (a).

(10)  Where an application has been set down for hearing under subrule (9), the court may, after hearing the judgment debtor and the judgment creditor, or such of them as appears, deal with the application and:

(a)  where the registrar refused to make the order:

(i)  make an order that the judgment debt, or the balance of the judgment debt then owing to the judgment creditor, be paid by such instalments payable at such times as the court thinks fit, or

(ii)  refuse to make such an order, or

(b)  where the judgment creditor has filed a notice of objection in accordance with subrule (8), confirm, vary or rescind the order of the registrar.

(11)  Where the court under subrule (10) makes, refuses to make, confirms, varies or rescinds an order, it may, if it is of the opinion that a party has acted unreasonably in respect of the application, order that party to pay to the other party such amount as it determines in respect of the costs or expenses of the other party incurred by reason of the application.

(12)  Where:

(a)  an application is made by or on behalf of a judgment debtor under subrule (1) and no application in respect of the judgment debt has previously been made by or on behalf of the judgment debtor under that subrule or under rule 1 (1), and

(b)  the registrar refuses under subrule (7) to make an order pursuant to the application,

the application shall, until it is dealt with under subrule (10), and unless the court otherwise orders, operate as a stay of enforcement of the judgment in respect of which the application is made, except enforcement by way of a garnishee order to which section 48 of the Act applies made before the application was made to the registrar.

(13)  Where the court or the registrar makes an instalment order under this rule, the order shall, while it remains in force, operate as a stay of enforcement of the judgment in respect of which the order was made, except enforcement by way of a garnishee order to which section 48 of the Act applies made before the order under this rule was made.

(14)  An order may be made under this rule in respect of a judgment debt, notwithstanding that at the time when the application for the order or the order is made there is in force an order under rule 1 (1) or under this rule, but where there is in force such an order any subsequent order made under this rule in respect of the same judgment debt supersedes the former order.

(15)  At a court prescribed for the purposes of this subrule, the jurisdiction and functions of the court under this rule may be exercised by the registrar, and any order made by the registrar in the exercise of that jurisdiction may, on application made by the judgment creditor or the judgment debtor, be confirmed, varied or vacated by the court.

(16)  The courts prescribed for the purposes of subrule (15) are the courts held at the Downing Centre, Sydney, Albury, Bankstown, Bathurst, Blacktown, Broken Hill, Burwood, Campbelltown, Campsie, Coffs Harbour, Dubbo, Fairfield, Gosford, Goulburn, Hornsby, Kogarah, Lismore, Liverpool, Manly, Newcastle, Newtown, North Sydney, Orange, Parramatta, Penrith, Queanbeyan, Redfern, Sutherland, Tamworth, Taree, Wagga Wagga, Wollongong, Wyong.

3 Miscellaneous provisions

(1)  Upon an application, supported by affidavit, made by the judgment creditor on the grounds that there has been a substantial increase in the property or means of the judgment debtor, the court may, if satisfied as to the truth of those grounds, vary or rescind any order under rule 1 or 2 in respect of the judgment debt and, where the court is of the opinion that a party has acted unreasonably in respect of the application, it may order that party to pay to the other party such amount as it determines in respect of the costs or expenses of the other party incurred by reason of the application.

(2)  An order made under rule 1 or 2 in respect of a judgment debt shall, subject to the agreement (if any) consequent on the filing of which the order was made under rule 2 (7) (b), cease to be in force if the judgment debtor fails to make any payment in accordance with the order, and thereafter the judgment may, except where otherwise directed by the court or provided in the agreement (if any), be enforced for the balance of the judgment debt owing to the judgment creditor.

[cf DCR Pt 31A r 3]

(3)  Where an order under rule 1 or 2 in respect of a judgment debt has ceased to be in force through the operation of subrule (2), process for the enforcement of the judgment shall not be issued except on affidavit evidence as to how the order came to cease to be in force.

[cf LC (CC) R r 38]

Part 28 Examination summonses

pt 28, rules 1, 3: Am 18.2.1994.

pt 28, rule 9: Am 9.6.1989. Rep 27.4.1990.

1 Issue

(1)  Where a judgment creditor files an examination summons under section 41 (1) of the Act the judgment creditor shall lodge with the registrar a copy of the summons, together with a further copy to be sealed for each judgment debtor to be served, and a further copy for any other registrar before whom the summons is returnable.

[cf DCR Pt 32 r 1 (1)]

(2)  Where the judgment creditor does not have an address for service at, and does not carry on business or have an agent at, a place within 30 kilometres from the court at which the judgment debtor is required to attend, the judgment creditor may file with the examination summons a request that the registrar of that court orally examine the judgment debtor as provided in section 41 (4) (b) of the Act, together with a copy of the request for that registrar if that registrar is not the issuing registrar.

(2A)  Where the judgment creditor has an address for service at, or carries on business or has an agent at, a place within 30 kilometres from the court at which the judgment debtor is required to attend, the registrar of that court is not required to orally examine the judgment debtor.

(3)  The judgment creditor may in a request filed pursuant to subrule (2) specify particular property or matters on which the judgment creditor wishes the judgment debtor to be examined.

[LC (CC) R r 39]

(4)  Where an examination summons is issued returnable before a registrar other than the issuing registrar, the issuing registrar shall as soon as practicable send to the other registrar a copy of the summons and where applicable a copy of the request filed under subrule (2).

[DCR Pt 32 r 1 (3)]

2 Service [DCR Pt 32 r 3; cf LC (CC) R r 21 (2)]

An examination summons shall be served on a person 14 days before the day on which the attendance of the person is required by the summons.

3 Examination [cf DCR Pt 32 r 5]

(1)  An examination under an examination summons may be conducted in open court or in chambers, as the registrar directs.

(2)    (Repealed)

(3)  Where a registrar examines a person in compliance with a request filed pursuant to rule 1 (2), or otherwise in the absence of the judgment creditor, the registrar, notwithstanding rule 1 (3), may, but is not by these rules required to, confine the examination to the matters mentioned in the approved form of the examination notice mentioned in section 43A (1) of the Act.

4 Instalment order after examination [DCR Pt 32 r 5A]

(1)  Where a person has attended for examination under an examination summons in relation to a judgment debt, the registrar before or by whom the examination is conducted may make an order for the payment of the judgment debt or the balance of the judgment debt then owing to the judgment creditor by such instalments payable at such times as may be specified in the order.

(2)  Where the registrar who makes an order under subrule (1) is not the registrar of the proper court in relation to the action in which the order is made, the registrar who makes the order shall as soon as practicable notify the registrar of the proper court in writing of the contents of the order.

(3)  An order made under subrule (1) shall be deemed to be an order made under Part 27 rule 2 (7) pursuant to an application made by the judgment debtor under Part 27 rule 2 (1) (a).

5 Report of certain examinations [DCR Pt 32 r 5B; cf LC (CC) R r 46]

Where a person is examined by a registrar under an examination summons in relation to a judgment debt, the results of the examination and any order made shall be reported by the registrar to the judgment creditor as soon as practicable.

6 Adjournment of examination [DCR Pt 32 r 5C]

A registrar may from time to time adjourn any examination being or to be conducted before or by the registrar under an examination summons.

7 Expiry of warrant [DCR Pt 32 r 6]

A warrant issued under section 42 of the Act shall expire on the expiration of 3 months after the warrant is issued.

8 Execution of warrant [cf DCR Pt 43 r 8]

(1)  A warrant issued under section 42 of the Act shall be executed by the Sheriff or by the bailiff at the nearest court to the place of execution, unless the registrar of the home court shall, on the grounds of greater convenience or reduced costs, direct that the warrant be executed by the Sheriff or by another bailiff.

(2)  As soon as practicable after the issue of a warrant under section 42 of the Act, the registrar of the home court shall hand the warrant to the Sheriff, or, where there is a bailiff at that court, to that bailiff, and where the warrant is to be executed by the bailiff at a foreign court the Sheriff or the bailiff at the home court shall as soon as practicable forward the warrant to the bailiff at the foreign court.

9 (Repealed)

Part 29 Attachment of debts

1 Procedure to issue garnishee order [DCR Pt 33 r 1]

The judgment creditor shall at the time of making an application for a garnishee order lodge with the registrar the order in duplicate, together with as many copies as there are parties to be served.

2 Garnishee order [cf DCR Pt 33 r 3]

A garnishee order shall include such particulars of the debt attached as are known to, or reasonably capable of ascertainment by, the judgment creditor and as are necessary to enable the garnishee to identify the debt, including, where the garnishee is a deposit-taking institution or other person carrying on business at more than one place, the place of keeping of the account on which the debt is due or accruing.

3 Garnishee’s costs [LC (CC) R r 47]

The amount prescribed for the purposes of section 47D (a) of the Act is $13.

Part 30 Writs of execution

pt 30, rule 1: Subst 27.4.1990.

pt 30, rule 2: Am 9.6.1989.

pt 30, rule 3: Am 18.2.1994.

pt 30, rule 6: Am 19.10.2001.

pt 30, rule 10: Rep 22.11.1996.

pt 30, rules 10A, 10B: Ins 22.4.1994.

pt 30, rule 13A: Ins 27.4.1990.

pt 30, rules 16–18: Am 27.4.1990.

pt 30, rule 19: Am 27.4.1990. Subst 5.11.1993.

pt 30, rule 20: Am 9.6.1989.

1 Duration of writ

(1)  A writ of execution is to be endorsed by the registrar with the date of its issue.

(2)  The period for which a writ of execution is in force is, for the purposes of section 58 (2) of the Act, the period commencing on the date of issue of the writ and ending:

(a)  if, within 6 months after its date of issue, application is made to the registrar for an office copy of the writ—on the date occurring 12 months after its date of issue,

(b)  if, within 6 months after its date of issue, the sale of land under the writ is postponed under Part 30A rule 11—on the date to which the sale is postponed, or

(c)  in any other case—on the date occurring 6 months after its date of issue.

2 Application for writ

(1)  An application by a judgment creditor for the issue of a writ of execution shall contain:

(a)  the date of the judgment to enforce which the writ of execution is sought to be issued,

(b)  the amount payable under the judgment on the date of signing of the application,

(c)  the interest (if any) payable under section 39 of the Act as at the date of signing of the application, and

(d)  the address at which it is alleged that goods of the judgment debtor are situated.

[cf DCR Pt 34 r 4]

(2)  An application mentioned in subrule (1) shall be signed by the judgment creditor or the judgment creditor’s solicitor or agent, and shall not be effectual for the issue of a writ of execution unless the application was signed within 14 days preceding the day on which it is filed, unless the court or registrar otherwise orders.

[cf LC (CC) R r 33]

3 Form and notice [DCR Pt 34 r 5; cf LC (CC) R r 52]

(1)  A writ of execution shall be prepared by the registrar.

(2)  The registrar shall prepare, and forward to the Sheriff’s officer or bailiff with a writ of execution, a notice of execution, and the Sheriff’s officer or bailiff shall, on executing or attempting to execute the writ of execution, deliver the notice to the judgment debtor or leave it at the place where the levy is made.

4 Subsequent writs [cf DCR Pt 34 r 6]

Where execution has been issued to enforce a judgment and the writ has been returned unsatisfied to the registrar, a person otherwise entitled to enforce the judgment by execution without leave may require the issue of a further writ of execution.

5 Deposit to secure costs of execution [DCR Pt 34 r 7; cf LC (CC) R r 55]

(1)  The registrar of a home court may before issuing a writ of execution, and at any time, and from time to time, during the execution of a writ, require the judgment creditor to make a deposit with the registrar of a sum sufficient to meet the costs incurred or likely to be incurred by the Sheriff’s officer or bailiff in executing the writ.

(2)  Where a registrar requires a deposit to be made under subrule (1) and the deposit is not made forthwith:

(a)  the registrar may refuse to issue the writ of execution, or

(b)  the Sheriff’s officer or bailiff may withdraw from any possession into which the Sheriff’s officer or bailiff may have entered under the writ and may return the writ of execution,

as the case may require.

6 Execution

(1)  A writ of execution shall be executed by the Sheriff or by the bailiff at the nearest court to the place of execution, unless the registrar of the home court shall, on the grounds of greater convenience or reduced costs, direct that the writ be executed by the Sheriff or by another bailiff.

(2)  A person requiring a writ of execution to be issued shall become liable to the registrar of the home court for any fees and disbursements properly incurred by the sheriff’s officer or bailiff in executing or attempting to execute the writ, but the liability shall be reduced to the extent of:

(a)  any money paid by the person to the registrar under rule 5 in respect of the liability, and

(b)  any money recovered under the writ and applied to the Sheriff’s officer’s or bailiff’s costs of the execution.

(3)  As soon as practicable after the issue of a writ of execution, the registrar shall forward the writ and any notice accompanying it to the Sheriff’s office or bailiff for the district in which the writ is to be executed.

(4)  A Sheriff’s officer or bailiff shall execute a writ required to be executed by the Sheriff’s officer or bailiff as soon as practicable.

(5)  Where a Sheriff’s officer required to execute a writ of execution ascertains that the goods of the judgment debtor are not at the address shown in the writ but at another address within New South Wales, the Sheriff shall, unless the judgment creditor otherwise directs, arrange for the writ to be executed at that other address, and inform the judgment creditor that execution of the writ has been so arranged.

[cf DCR Pt 44 r 3 (1A)]

(6)  Where the bailiff required to execute a writ of execution ascertains that the goods of the judgment debtor are not at the address shown in the writ but at another address, the bailiff shall, if the court at which that bailiff is the bailiff is the nearest or otherwise most convenient court to that other address, execute the writ at that other address.

[cf DCR Pt 44 r 3]

7 Stay of execution by judgment creditor [DCR Pt 34 r 8]

(1)  Where under a writ of execution a levy has not been made, the judgment creditor:

(a)  may in writing require the Sheriff’s officer or bailiff to suspend execution of the writ, but may not require any such suspension conditionally, and

(b)  may, where execution of the writ has been suspended under paragraph (a), in writing require the Sheriff’s officer or bailiff to resume the execution,

and the Sheriff’s officer or bailiff shall comply with any requirement made under this subrule.

(2)  Where a levy has been made under a writ of execution and the judgment creditor enters into an arrangement with the judgment debtor that the Sheriff’s officer or bailiff shall be at liberty to withdraw from, and re-enter, possession, and communicates that arrangement to the Sheriff’s officer or bailiff, and requests the Sheriff’s officer or bailiff to withdraw from possession, the Sheriff’s officer or bailiff shall withdraw from possession and suspend execution of the writ, but shall be at liberty, at the judgment creditor’s request in writing, to re-enter possession and resume the execution in accordance with the terms of the arrangement.

(3)  Where a levy has been made under a writ of execution and the judgment creditor, without communicating any arrangement mentioned in subrule (2), requests the Sheriff’s officer or bailiff to withdraw from possession or to suspend execution of the writ (other than by postponing a sale for a reasonable time), the judgment creditor shall be deemed to have abandoned the execution, and the Sheriff’s officer or bailiff shall withdraw from possession and return the writ.

8 Account [DCR Pt 34 r 9]

The Sheriff’s officer or bailiff shall give to any party, or to any person who claims that the person’s property has been sold by the Sheriff’s officer or bailiff under the writ, who requests it a report of any sale under a writ of execution and an account of the proceeds of the sale and any other money received under the writ, the charges incurred and the manner of disposal of the proceeds or other money.

9 When writ may not be executed [DCR Pt 34 r 10 (1)]

A writ of execution may not be executed on Christmas Day or Good Friday.

10 (Repealed)

10A Judgment for return of goods

(1)  A judgment given under section 28A (1) (a), and an order made under section 28A (3), of the Act may, after the expiration of any time specified under Part 26 rule 2A (2), be enforced by one or more of the following means:

(a)  writ of specific delivery,

(b)  subject to this rule, committal by order of the court on the application of the judgment creditor.

(2)  A judgment given under section 28A (1) (b) of the Act may, after the expiration of any time specified under Part 26 rule 2A (2), be enforced by writ of delivery.

(3)  A writ of specific delivery and a writ of delivery may include provision for enforcing the payment of money required to be paid by the judgment to be enforced by the writ.

(4)  The court shall not order committal of a judgment debtor under this rule unless a minute of the judgment is served personally on the judgment debtor before the expiration of any time specified under Part 26 rule 2A (2) in respect of the judgment.

(5)  Where the judgment debtor is a corporation, the court shall not order committal of an officer of the corporation unless, in addition to service under subrule (4) on the judgment debtor, a minute of the judgment is served personally on the officer before the expiration of any time specified under Part 26 rule 2A (2) in respect of the judgment.

(6)  A minute of a judgment served under this rule must bear a notice (naming the person concerned) that the person is liable to imprisonment if the goods the subject of the judgment are not returned within the time specified in the judgment.

(7)  Where an order is made under Part 4 rule 2 (1) extending or abridging any time specified under Part 26 rule 2A (2) in respect of a judgment, and a minute of the judgment is served on a person pursuant to this rule, a minute of the order must be served on that person before the expiration of that time as so extended or abridged.

(8)  Where a person liable to committal by way of enforcement of a judgment has notice of the judgment:

(a)  by being present when the judgment is given, or

(b)  by being notified of the terms of the judgment whether by telephone, telegram or otherwise,

the court may order committal of that person notwithstanding that service has not been effected in accordance with this rule.

(9)  The court may dispense with service under this rule.

10B Issue of writ of delivery or specific delivery

(1)  An application by a judgment creditor for the issue of a writ of delivery or a writ of specific delivery shall contain a statement as to:

(a)  the matters mentioned in paragraphs (a) to (d) of rule 2 relating to the judgment to enforce which the writ is sought to be issued,

(b)  whether any, and if so which, of the goods the subject of the judgment have been returned to the judgment creditor, and

(c)  the address at which it is alleged that the goods the subject of the judgment are situated.

(2)  Rule 2 (2) applies to an application mentioned in subrule (1) as though it were an application for the issue of a writ of execution.

11 Possession fees [DCR Pt 35 r 1]

(1)  No fee for keeping possession of any goods under a writ of execution shall be payable to any person or chargeable against the judgment debtor as costs of the execution if the amount due under the writ is paid to the Sheriff’s officer or bailiff within one hour after a levy is made under the writ.

(2)  Subject to subrule (1), where more than one person is necessarily engaged in keeping possession of any goods under a writ of execution, the fees payable to each such person shall, unless the registrar of the home court otherwise orders, be chargeable against the judgment debtor as part of the costs of the execution.

12 Removal of goods [DCR Pt 35 r 2]

(1)  Where any goods are levied on, the Sheriff’s officer or bailiff may remove them to a place where, in the Sheriff’s officer’s or bailiff’s judgment, the highest prices for the goods are most likely to be obtained, or to a place removal to which is necessary for the safe keeping of the goods.

(2)  Where a Sheriff’s officer or bailiff removes goods under subrule (1) the Sheriff’s officer or bailiff shall as soon as practicable give to the judgment debtor, or send to the judgment debtor by post addressed to the judgment debtor at the judgment debtor’s last known residence, or leave for the judgment debtor at the place from which the goods are removed, notice of the removal and a sufficient inventory of the goods so removed.

13 Time of sale [DCR Pt 35 r 3]

(1)  Subject to section 59 (4) of the Act and to subrule (2), goods shall not be sold under a writ of execution before the sixth day after the goods were levied on.

(2)  Goods of a perishable nature may be sold forthwith after the levy, and where the judgment debtor so requests in writing any goods may be sold at any time.

(3)  Goods seized under a writ of execution shall, while awaiting sale, remain in such custody as the Sheriff’s officer or bailiff shall appoint.

13A Auctioneer

(1)  If the nature and apparent value of property to be sold under a writ of execution are such that it appears reasonable to the Sheriff’s officer or bailiff to do so, the Sheriff’s officer or bailiff may appoint an auctioneer to sell the property.

(2)  An auctioneer appointed to sell goods may, with the approval of the Sheriff’s officer or bailiff, give such notice (by advertisement in a newspaper or otherwise) as appears to the auctioneer necessary to give due publicity to the sale.

(3)  An auctioneer appointed to sell property shall, as soon as practicable after the registrar, Sheriff’s officer or bailiff advises that the auctioneer’s services will not be required in respect of the writ or otherwise requests an account of the auctioneer’s charges, advise the registrar, Sheriff’s officer or bailiff of the amount of those charges to date.

(4)  An auctioneer appointed to sell property shall, as soon as practicable after receipt of any money under the writ, pay the money to the Sheriff’s officer or bailiff required to execute the writ, less the amount of any charges payable to the auctioneer in respect of the writ.

14 Publication [cf DCR Pt 35 r 4; cf LC (CC) R r 53]

(1)  A Sheriff’s officer or bailiff shall cause notice of the intended sale of any goods under a writ of execution to be affixed on or near the door of the place where the sale is to be held, or, where the sale is not to be held in a city or town, at the court house or some convenient place, 4 days at least before the date appointed for the sale.

(2)  Where goods are removed from a place in a city or town under rule 12 (1), the Sheriff’s officer or bailiff shall cause notice of the intended sale of the goods to be affixed on or near the door of that place 4 days at least before the date appointed for the sale.

(3)  The Sheriff’s officer or bailiff shall give, in addition to any notice of a sale of goods under a writ of execution which the Sheriff’s officer or bailiff is required under these rules to give, such further notice, by advertisement in a newspaper or otherwise, as appears to the Sheriff’s officer or bailiff necessary to give due publicity to the sale.

15 Sale [DCR Pt 35 r 5; cf LC (CC) R r 56]

Subject to these rules, goods sold under a writ of execution shall be sold by public auction to the highest bidder.

16 Postponement [cf DCR Pt 35 r 6]

(1)  The Sheriff’s officer or bailiff required to execute a writ of execution may from time to time postpone, or require any auctioneer appointed to sell the goods to postpone, any sale of goods under the writ if the Sheriff’s officer or bailiff thinks it proper to postpone the sale to avoid a sacrifice of the reasonable value of the goods or to comply with a request by the judgment creditor for the postponement.

(2)  Any postponement under subrule (1) shall have the effect of continuing the validity of the writ until the sale, notwithstanding rule 1.

17 Approximate market value [cf DCR Pt 35 r 7]

(1)  A Sheriff’s officer or bailiff required to sell goods under a writ of execution shall, before proceeding to the sale, fix, so far as the Sheriff’s officer or bailiff can do so by the exercise of diligence which is, having regard to all the circumstances of the case, reasonable, the approximate market value of the goods, but need not communicate the value so fixed to any person before the sale.

(2)  Without limiting the generality of subrule (1), for the purpose of fixing a value under that subrule, a Sheriff’s officer or bailiff may if the Sheriff’s officer or bailiff thinks fit require the judgment creditor to furnish to the Sheriff’s officer or bailiff any information known to, or reasonably capable of ascertainment by, the judgment creditor in respect of the goods, and where the judgment creditor unreasonably fails to furnish any information so required the Sheriff’s officer or bailiff shall report the failure to the registrar, and may refuse to proceed further towards the sale of the goods.

(3)  Without limiting the generality of subrule (1), for the purpose of fixing a value under that subrule, where the nature and apparent value of the goods concerned are such that it is reasonable to do so, the Sheriff’s officer or bailiff may, with the approval of the Sheriff, engage a suitably qualified and experienced valuer to provide the Sheriff’s officer or bailiff with an opinion as to the value sought to be fixed.

(4)  A Sheriff’s officer or bailiff, or an auctioneer, shall not under a writ of execution sell goods by public auction for a price substantially below the approximate market value of the goods fixed under subrule (1).

18 Sale by private treaty [DCR Pt 35 r 8]

(1)  Where at a public auction in respect of goods to be sold under a writ of execution being executed by a Sheriff’s officer the highest bid is substantially below the approximate market value of the goods fixed by the Sheriff’s officer under rule 17 (1), the Sheriff’s officer or, where an auctioneer is appointed under rule 13A (1) to sell the goods, the auctioneer may, with the approval of the Sheriff, sell the goods under the writ of execution by private treaty.

(2)  The Sheriff shall not approve a sale of goods under subrule (1) at a price substantially below a fair value determined by the Sheriff.

(3)  In determining a fair value in respect of any goods for the purposes of subrule (2), the Sheriff:

(a)  shall take into account all the relevant circumstances, including but not limited to:

(i)  the approximate market value of the goods fixed by the Sheriff’s officer under rule 17 (1),

(ii)  the amount of the highest bid for the goods at the public auction, and

(iii)  the likelihood or otherwise of there being a higher bid if the goods were again put up for sale by public auction, and

(b)  shall not determine a fair value that is substantially below the amount of the highest bid for the goods at the public auction.

19 Conditions of sale [DCR Pt 35 r 9]

(1)  The Sheriff or bailiff shall sell personal property under a writ of execution, or require any auctioneer appointed to sell the property:

(a)  on terms as to payment that the purchaser shall pay:

(i)  an amount equal to at least 10% of the purchase price by way of deposit immediately upon the sale, and

(ii)  the balance of the purchase price within such period, not exceeding 2 working days after the sale, as the Sheriff or bailiff may determine prior to the sale, or

(b)  on terms as to payment that the purchaser shall pay the whole of the purchase price immediately upon the sale.

(2)  The Sheriff or bailiff shall require payment to be in cash, by bank draft or, if the Sheriff so approves, by credit card.

(3)  Where payment is made by credit card, any charge made to the Sheriff, bailiff or auctioneer in respect of the payment shall form part of the costs of the execution.

20 Receipt, custody and disbursement of money [DCR Pt 44 r 5]

(1)  A bailiff levying or receiving money by virtue of a writ of execution shall, where practicable, give an acknowledgment of the money to the judgment debtor or other person from whom the bailiff received it, and shall, except where the bailiff is required by statute to retain the money, within 24 hours after levying or receiving it pay it to the registrar for the home court.

(2)  A Sheriff’s officer levying or receiving money by virtue of a writ of execution shall, where practicable, give an acknowledgment of the money to the judgment debtor or other person from whom the Sheriff’s officer received it, and shall, except where the Sheriff’s officer is required by statute to retain the money, within 24 hours after levying or receiving it pay it, less the amount of the Sheriff’s officer’s costs of the writ, to the judgment creditor or the judgment creditor’s solicitor or agent.

(3)  Where the bailiff is by statute required to retain the proceeds of an execution, the bailiff shall:

(a)  within 24 hours after receiving the money send to the judgment creditor or the judgment creditor’s solicitor or agent notice of the levy and the amount received thereunder,

(b)  retain also the bailiff’s costs of the execution for the period prescribed by the statute, and

(c)  on the expiration of the period prescribed by the statute pay:

(i)  the amount of the costs, and

(ii)  the amount of the proceeds, unless otherwise required by the operation of the statute,

to the registrar of the home court.

(4)  Where a Sheriff’s officer is by statute required to retain the proceeds of an execution, the Sheriff’s officer shall:

(a)  within 24 hours after receiving the money send to the judgment creditor or the judgment creditor’s solicitor or agent notice of the levy and the amount received thereunder,

(b)  retain also the Sheriff’s officer’s costs of the execution, and

(c)  on the expiration of the period prescribed by the statute, and unless otherwise required by the operation of the statute, pay the amount received, less the Sheriff’s officer’s costs of the execution, to the judgment creditor or the judgment creditor’s solicitor or agent.

(5)  The Sheriff’s officer or bailiff at a court shall keep a trust account with a bank approved by the Treasurer, and shall pay into that account all money received by the Sheriff’s officer or bailiff in respect of any writ and not paid immediately to a registrar, a judgment creditor or a judgment creditor’s solicitor or agent.

(6)  The Sheriff’s officer or bailiff at a court shall make available for the inspection of the registrar of the court, or of an officer appointed by the Auditor-General, all records of the Sheriff’s officer’s or bailiff’s trust account, and any book or other record kept by the Sheriff’s officer or bailiff (whether or not it is a book of account) which is required by the registrar or officer in the course of the registrar’s or officer’s duties.

21 Receipt by registrar on behalf of Sheriff or bailiff [DCR Pt 43 r 4]

(1)  Where a judgment debtor, or some person on the judgment debtor’s behalf, attends at a registry to make payment to the Sheriff’s officer or bailiff under a writ of execution, the registrar may, if for any reason it appears to the registrar desirable to do so, receive on behalf of the Sheriff’s officer or bailiff such payment as the Sheriff’s officer or bailiff would have accepted.

(2)  A payment received by the registrar under subrule (1) shall discharge the liability of the judgment debtor to the same extent as if it were accepted by the Sheriff’s officer or bailiff, and the Sheriff’s officer or bailiff shall, as soon as practicable after being notified by the registrar of the payment, make such endorsement on, and such return to, the writ of execution as the payment requires.

(3)  Money received by the registrar under subrule (1) may be retained by the registrar and dealt with as though received by the registrar from the bailiff in pursuance of the writ of execution.

22 Return to writ [DCR Pt 44 r 6]

A Sheriff’s officer or bailiff shall, in respect of any writ required by a registrar to be executed by the Sheriff’s officer or bailiff:

(a)  on completion of the execution,

(b)  on the expiry of the writ, or

(c)  when required in writing by the judgment creditor to do so,

make a return to the writ in the approved form and transmit the writ and the return to the registrar.

23 Notices [DCR Pt 44 r 7]

(1)  Where a Sheriff’s officer or bailiff withdraws from possession under a writ of execution in consequence of having received notice of a sequestration order against the judgment debtor, the Sheriff’s officer or bailiff shall as soon as practicable send to the judgment creditor or the judgment creditor’s solicitor notice of the withdrawal and the reasons therefor.

(2)  Where a Sheriff’s officer or bailiff is for any reason unable to make a levy as required on the goods of a judgment debtor, the Sheriff’s officer or bailiff shall as soon as practicable send to the judgment creditor or the judgment creditor’s solicitor notice of the failure to make a levy and the reason therefor.

(3)  A Sheriff’s officer or bailiff shall, at all reasonable times, give to the judgment creditor or the judgment creditor’s solicitor any information reasonably required as to the execution or non-execution of a writ.

Part 30A Execution against land

pt 30A, rules 1–12: Ins 27.4.1990.

pt 30A, rule 13: Ins 27.4.1990. Am 29.3.1996.

pt 30A, rule 14: Ins 27.4.1990. Subst 5.11.1993.

pt 30A, rule 15: Ins 27.4.1990.

pt 30A, rule 16: Ins 27.4.1990. Am 31.8.1990.

1 Application

(1)  This Part applies to a writ of execution to the extent to which it is enforced against land.

(2)  Subject to subclause (3), this Part does not limit the application of Part 30 in its application to a writ to which this Part applies.

(3)  Such of the provisions of Part 30 as are referable solely to goods do not apply to a writ of execution to the extent to which it is enforced against land.

2 Renewal

(1)  On the filing of an application by the judgment creditor, the registrar may renew a writ of execution, for the purposes of section 105 (5) of the Real Property Act 1900, by endorsing on the writ a memorandum of the renewal, by signing and dating the memorandum and by affixing to the memorandum the seal of the court.

(2)  A renewal does not have the effect of continuing the validity of a writ of execution beyond the period mentioned in Part 30 rule 1.

3 Notice to debtor

(1)  A judgment creditor may file an affidavit verifying:

(a)  the registration or recording of particulars of a writ of execution at the Land Titles Office, and

(b)  the receipt by the judgment creditor of advice from the Sheriff’s officer or bailiff to the effect that the Sheriff’s officer or bailiff cannot obtain satisfaction of the writ by proceeding further against the goods of the judgment debtor.

(2)  On filing such an affidavit, the judgment creditor may lodge with the registrar in duplicate, and the registrar shall seal, a notice advising the judgment debtor of:

(a)  the registration or recording of particulars of the writ of execution,

(b)  the judgment creditor’s intention to proceed to the sale of the judgment debtor’s land after the lapse of 4 weeks,

(c)  the judgment debtor’s right to effect his or her own disposition of the land and the conditions pertaining to that right, and

(d)  the judgment debtor’s right to make an application under Part 27 rule 2 (1).

(3)  The judgment creditor shall cause any notice so sealed to be served on the judgment debtor, either personally or in accordance with an order for substituted service under Part 7 rule 16.

4 Disposition by judgment debtor

(1)  For the purposes of section 62B (2) (d) of the Act, an issuing registrar shall:

(a)  inquire from the Sheriff’s officer or bailiff required to execute a writ of execution as to whether land has been sold under the writ, and

(b)  as soon as practicable after the inquiry, advise the Sheriff’s officer or bailiff of any certificate endorsed by the registrar under that paragraph.

(2)  The prescribed period for the purposes of section 62B (2) of the Act is the period commencing on the filing of the notice of consent under section 62B (2) (c) of the Act and ending:

(a)  if notice under rule 3 (2) has been served on the judgment debtor before the endorsing of the notice of consent by the registrar—2 weeks, or

(b)  if notice under rule 3 (2) has not been so served—6 weeks,

before the expiration of 3 months after the registration or recording of particulars of the writ at the Land Titles Office.

(3)  If money is paid to the issuing registrar under section 62B (3) (c) of the Act in respect of a writ of execution, the registrar shall:

(a)  retain from the money:

(i)  the amount due under the judgment, including interest,

(ii)  the costs of execution of the writ then known to the registrar, including any fees payable to an auctioneer in respect of the execution, and

(iii)  an amount determined by the registrar as security for the judgment creditor’s costs of the execution, other than those retained under subparagraph (ii),

and pay any balance of the money to the judgment debtor, and

(b)  as soon as practicable, advise the Sheriff’s officer or bailiff, and any auctioneer appointed for the purposes of the writ, of the payment and require the Sheriff’s officer or bailiff to return the writ.

5 Creditor’s application for sale

(1)  Where a judgment creditor:

(a)  files at the relevant court an affidavit of service of the notice mentioned in rule 3 (2),

(b)  files at the relevant court a notice of sale and lodges with the registrar of that court 6 copies of the notice, and

(c)  furnishes to the Sheriff’s officer or bailiff at the relevant court such information as the judgment creditor possesses, or can reasonably obtain, and as is relevant to the ascertainment of the value of the interest to be sold (including particulars of the value most recently assigned by the Valuer-General to the land the subject of the interest and particulars of the title to that land as revealed by a recent search at the Land Titles Office),

the Sheriff’s officer or bailiff may proceed to sell the interest or, if the nature and apparent value of the interest are such that it appears reasonable to the Sheriff’s officer or bailiff to do so, may appoint an auctioneer under Part 30 rule 13A to sell the interest.

(2)  The Sheriff’s officer or bailiff required, or the auctioneer appointed, to sell land under a writ of execution shall:

(a)  fix a date for the sale, which date shall be not less than 4 weeks after service on the judgment debtor of the notice mentioned in rule 3 (2), and

(b)  insert the date so fixed in each copy of the notice of sale lodged with the registrar under subrule (1) (b) and forward 2 sealed copies of the notice so completed to the judgment creditor.

(3)  In this rule:

relevant court, in relation to a writ of execution, means the court the Sheriff’s officer at which, or the bailiff for which, is required to execute the writ.

6 Approximate market value

(1)  A Sheriff’s officer or bailiff required to sell land under a writ of execution shall, before proceeding to the sale, fix, so far as he or she can do so by the exercise of reasonable diligence, the approximate market value of the interest to be sold, but need not communicate the value so fixed to any person before selling the land.

(2)  For the purpose of fixing a value, a Sheriff’s officer or bailiff may require the judgment creditor to furnish, in addition to any information furnished under rule 5 (1) (c), any further information known to, or reasonably capable of ascertainment by, the judgment creditor in respect of the land.

(3)  If the judgment creditor fails to furnish within a reasonable time any further information so required, the Sheriff’s officer or bailiff shall report the failure to the registrar and may refuse to proceed further towards the sale of the land.

(4)  A Sheriff’s officer, bailiff or auctioneer shall not sell land by public auction for a price substantially below the approximate market value of the land fixed by the Sheriff’s officer or bailiff.

7 Further notice to debtor

The judgment creditor:

(a)  shall endorse on a sealed copy of the notice of sale forwarded under rule 5 (2) (b) a memorandum reminding the judgment debtor of the judgment debtor’s right to make an application under Part 27 rule 2 (1), and

(b)  shall cause the copy so endorsed to be served on the judgment debtor at least one week before the date fixed for the sale.

8 Satisfaction by debtor

If, before or at the time fixed for the sale of the judgment debtor’s land, a judgment debtor indicates to the Sheriff’s officer, bailiff or auctioneer that the judgment debtor intends to satisfy the writ, the judgment debtor shall pay to the Sheriff’s officer, bailiff or auctioneer:

(a)  the amount due under the judgment, including interest,

(b)  the costs of execution of the writ then known to the Sheriff’s officer, bailiff or auctioneer, including any fees payable to an auctioneer in respect of the execution, and

(c)  an amount determined by the Sheriff’s officer or bailiff as security for the judgment creditor’s costs of the execution, other than those mentioned in paragraph (b),

and the Sheriff’s officer, bailiff or auctioneer shall, on receipt of the money, cancel the sale and the Sheriff’s officer or bailiff shall return the writ to the registrar.

9 Advertisement

(1)  A Sheriff’s officer or bailiff required, or an auctioneer appointed, to sell land under a writ of execution shall cause notice of any such sale, including a full description of the land to be sold, to be advertised:

(a)  in the Gazette, and

(b)  in a newspaper circulating in the district in which the land is situated,

at least one week before the date fixed for the sale.

(2)  The sale of any land may, in addition to being advertised under this rule, be further advertised by the Sheriff’s officer, bailiff or auctioneer, but only if the further advertisement is approved by the Sheriff.

10 Proof of service and publication

(1)  Before the sale of any land takes place, the judgment creditor shall lodge with the Sheriff’s officer or bailiff required to execute the writ an affidavit:

(a)  as to the service on the judgment debtor of the duly endorsed notice required under rule 7 to be served, and

(b)  as to the date and particulars of publication of every advertisement of the sale.

(2)  When making the return to a writ of execution, a Sheriff’s officer or bailiff shall attach to the return a copy of any such affidavit lodged in respect of the writ.

11 Postponement

(1)  The Sheriff’s officer or bailiff required to execute a writ of execution may from time to time postpone, or require any auctioneer appointed to sell the land to postpone, the sale of land if the Sheriff’s officer or bailiff thinks it proper to postpone the sale so as:

(a)  to avoid a sacrifice of the reasonable value of the land, or

(b)  to comply with a request by the judgment creditor for the postponement.

(2)  Any postponement under this rule has the effect of continuing the validity of the writ until the sale.

12 Sale

Subject to these rules, land sold by public auction under a writ of execution shall be sold to the highest bidder.

13 Sale by private treaty

(1)  If, at a public auction in respect of land to be sold under a writ of execution being executed by a Sheriff’s officer, the highest bid is substantially below the approximate market value of the land fixed by the Sheriff’s officer under rule 6 (1), the Sheriff’s officer may, with the approval of the Sheriff, sell the land, or permit the auctioneer to sell the land, by private treaty.

(2)  The Sheriff shall not approve a sale of land under subrule (1) at a price substantially below a fair value determined by the Sheriff.

(3)  In determining a fair value in respect of any land, the Sheriff:

(a)  shall take into account all relevant circumstances, including but not limited to:

(i)  the approximate market value of the land fixed by the Sheriff’s officer under rule 6 (1),

(ii)  the amount of the highest bid for the land at the public auction, and

(iii)  the likelihood or otherwise of there being a higher bid if the land is again put up for sale by public auction, and

(b)  shall not determine a fair value that is substantially below the amount of the highest bid for the land at the public auction.

14 Conditions of sale

(1)  The Sheriff or bailiff shall sell land under a writ of execution, or require any auctioneer appointed to sell the land:

(a)  on terms as to payment that the purchaser shall pay:

(i)  an amount equal to at least 10% of the purchase price by way of deposit immediately upon the sale, and

(ii)  the balance of the purchase price within such period, not exceeding 6 weeks after the sale, as the Sheriff or bailiff may determine prior to the sale, or

(b)  on terms as to payment that the purchaser shall pay the whole of the purchase price immediately upon the sale.

(2)  Where a sale of property under a writ of execution is partly of land and partly of other property, the other property may be sold on the same terms as to payment as the land.

(3)  The Sheriff or bailiff shall require payment to be in cash, by bank draft or, if the Sheriff so approves, by credit card.

(4)  Where payment is made by credit card, any charge made to the Sheriff, bailiff or auctioneer in respect of the payment shall form part of the costs of the execution.

(5)  Upon completion of a sale of land under a writ of execution, the Sheriff’s Officer or bailiff required to execute the writ and the purchaser shall sign a contract of sale in the approved form.

(6)  The purchaser of land sold under a writ of execution shall take at his own expense the registrar’s assurance of the interest sold.

15 Report of sale

(1)  A Sheriff’s officer or bailiff required, or an auctioneer appointed, to sell land under a writ of execution shall, as soon as practicable after the sale has been completed, make a report to the registrar of the relevant court as to:

(a)  the approximate market value of the land fixed by the Sheriff’s officer or bailiff under rule 6 (1),

(b)  the amount of the highest bid at the sale,

(c)  whether or not the judgment debtor was identified to the Sheriff’s officer, bailiff or auctioneer as being present at the sale,

(d)  the amount of the auctioneer’s charges, and

(e)  any other matter which the Sheriff’s officer, bailiff or auctioneer considers should be reported to the registrar.

(2)  An auctioneer shall, as soon as practicable after the registrar, Sheriff’s officer or bailiff advises that the auctioneer’s services will not be required in respect of the writ or otherwise requests an account of the auctioneer’s charges, advise the registrar, Sheriff’s officer or bailiff of the amount of those charges to date.

(3)  An auctioneer shall, as soon as practicable after receipt of any money under the writ, pay the money to the Sheriff’s officer or bailiff required to execute the writ, less the amount of any charges payable to the auctioneer in respect of the writ.

(4)  In this rule:

relevant court, in relation to a writ of execution, means the court the Sheriff’s officer at which, or the bailiff for which, is required to execute the writ.

16 Payment to judgment debtor

(1)  A judgment creditor at whose request a writ of execution has issued may file:

(a)  evidence of an agreement with the judgment debtor as to the amount of the judgment creditor’s costs of the execution, or

(b)  a notice of motion for the assessment of those costs.

(2)  Any evidence or notice of motion referred to in subrule (1) must be filed within 2 months after the receipt by the issuing registrar of:

(a)  the proceeds of sale of any land,

(b)  any money under section 62B (3) (c) of the Act, or

(c)  any money under rule 8,

or within such further time as may be consented to in writing by the judgment debtor.

(3)  If the judgment creditor files any evidence or notice in accordance with subrule (2), the registrar shall as soon as practicable pay to the judgment debtor any money mentioned in subrule (1) and held by the registrar over and above the amount necessary to satisfy the writ of execution.

(4)  If the judgment creditor:

(a)  does not file any evidence or notice in accordance with subrule (2), and

(b)  does not within the time allowed in that regard advise the registrar of any consent by the judgment debtor to extend that time,

the registrar may pay to the judgment debtor any money mentioned in subrule (2) and held by the registrar over and above the total of the amount necessary to satisfy the judgment (including interest) and the costs of the execution (other than solicitor’s profit costs) then known to the registrar.

(5)  The registrar shall pay to the judgment creditor any money referred to in this rule which the registrar is not by this rule required to pay to the judgment debtor.

(6)  Nothing in this rule affects the right of the judgment creditor to recover against the judgment debtor the costs of execution of the writ.

Part 31 Costs

pt 31, rule 1A: Ins 22.7.1994.

pt 31, rule 2: Am 8.4.1993.

pt 31, rule 5: Am 9.6.1989.

pt 31, rule 6: Am 9.6.1989; 1.11.1991; 5.11.1993.

pt 31, rule 7: Am 1.11.1991; 5.11.1993.

pt 31, rule 8: Am 5.11.1993.

pt 31, rule 9: Am 18.12.1992.

pt 31, rule 10: Am 27.4.1990; 18.2.1994; 17.6.1994.

pt 31, rule 11A: Ins 18.12.1992.

pt 31, rule 12: Ins 23.8.1991. Am 5.3.1993; 28.5.1993; 18.2.1994.

1 Transitional

Subject to this Part:

(a)  this Part applies to and in respect of actions commenced on or after the day on which these rules commence, and

(b)  in actions commenced before the day on which these rules commence, the entitlement of a party to costs, and the amount of any such costs, shall be determined as though Schedule 2 to the Local Courts (Civil Claims) Amendment Act 1987 had not been enacted.

1A Application after commencement of Legal Profession Reform Act

(1)  This Part has no operation after 30 June 1994 except:

(a)  as provided by or under the Legal Profession Act 1987,

(b)  as provided by subrule (2), or

(c)  for the purposes of Part 38A rule 4 (2) (which deals with the costs of registration of a judgment under the Service and Execution of Process Act 1992 (Cth)).

(2)  This rule shall not affect any right, privilege, obligation, liability or disentitlement acquired, accrued or incurred on or before 30 June 1994.

2 Interpretation

(1)  A reference in this Part to the amount in issue in an action or a cross-claim is a reference:

(a)  where judgment is given or entered up, or an award of an arbitrator is made, in the action or cross-claim for the payment of an amount of money—to the sum of that amount (exclusive of any costs) and any amount paid, between the date of commencement of the action or cross-claim and the date of the judgment or award, by or on behalf of the party against whom the judgment or award is given, entered up or made to the party in whose favour it is given, entered up or made in respect of the cause of action on which the action or cross-claim was brought, or

(b)  where judgment is given, or an award of an arbitrator is made, for the defendant on the plaintiff’s action, or for the plaintiff on a cross-claim—to the amount claimed in the action or cross-claim, as the case may be, or

(c)  where a sealed copy of a judgment for an amount of money is registered in a court under section 105 (1) of the Service and Execution of Process Act 1992 (Cth)—to that amount exclusive of any costs or interest.

[cf DCR Pt 51A r 10 (3)]

(2)  A reference in this Part to the disbursements of a party in relation to an action or cross-claim is a reference to the sum of:

(a)  any filing fees paid by the party,

(b)  any fees paid by the party for service or attempted service of any process by a Sheriff’s officer or bailiff,

(c)  any fees paid by the party for service of any process by a commercial agent or sub-agent, solicitor or employee of a solicitor, but so as not to exceed the fees that would have been payable for the same service by a Sheriff’s officer or bailiff,

(d)  any fees, and any other costs, paid by the party for the execution or attempted execution of a writ or warrant, and

(e)  any witnesses’ expenses, and any other costs of procuring or preparing evidence, paid by the party and ordered by the court or arbitrator,

in respect of the action or cross-claim.

3 Fees to counsel

Fees paid to counsel are not for the purposes of these rules a disbursement, and shall not be added to the amount of any costs payable by a party under these rules.

4 Unrepresented parties

Notwithstanding anything to the contrary in this Part:

(a)  where a party acts other than by a solicitor and the party is, by operation of these rules or by any order of the court or an arbitrator, entitled to recover costs, those costs shall consist of the party’s disbursements only, or

(b)  where a party to an action acts other than by a solicitor and commences, during the course of the action, to act by a solicitor, and:

(i)  the party is, by operation of rule 10 (1), entitled to recover costs, the amount of those costs shall be reduced by the amount of any professional costs which would have been payable by operation of that subrule, had the party acted by a solicitor, in respect of any step taken in the action before the party commenced to act by a solicitor, or

(ii)  the court or an arbitrator orders, as mentioned in rule 7 (1) or 8, that any costs of the party be paid by another party, the court or arbitrator shall, in determining the amount of those costs, take into account the steps taken in the action while the party acted other than by a solicitor.

5 Limitations on professional costs [cf DCR Pt 39 r 1B; cf LC (CC) R r 29A]

(1)  If in any action or cross-claim:

(a)  a party recovers, by payment by or on behalf of another party without judgment, a total amount which does not exceed the prescribed amount, or

(b)  judgment is given or entered up in favour of a party for an amount which does not exceed the prescribed amount,

the party shall not be entitled to recover any professional costs in the action or cross-claim, as the case may be, unless the court certifies that it appears to the court that for special reasons applying to the case another party ought to pay the professional costs incurred by the party.

(2)  Subrule (1) does not apply in respect of an action or cross-claim in which judgment is given or entered up in favour of a party for an amount which does not exceed the prescribed amount but which would have exceeded the prescribed amount but for any one or more of the following:

(a)  any payment made, or credit accrued, in reduction of the amount claimed in the action or cross-claim since the commencement of the action or cross-claim,

(b)  any judgment set off against the judgment in favour of the party,

(c)  any reduction of damages under Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965.

(3)  In this rule:

prescribed amount means:

(a)  in relation to an action commenced before the day on which these rules commence—$200, or

(b)  in relation to an action commenced on or after that day—$300.

6 Scales of costs

(1)  Where costs payable by a party are allowed on any scale:

(a)  unless the court otherwise orders, disbursements shall be allowed to the extent to which they are properly made, without reduction or increase through the operation of paragraph (b), and

(b)  fees to solicitors, properly incurred, are to be calculated:

(i)  at 28% of the fixed fee, if costs are allowed on the 1st scale,

(ii)  at 44% of the fixed fee, if costs are allowed on the 2nd scale,

(iii)  at 72% of the fixed fee, if costs are allowed on the 3rd scale,

(iv)  at 80% of the fixed fee, if costs are allowed on the 4th scale,

(v)  at 90% of the fixed fee, if costs are allowed on the 5th scale, or

(vi)  at the amount of the fixed fee, if costs are allowed on the 6th scale.

(1A)  In subrule (1) (b), fixed fee means the fee determined or fixed under rule 7, 8 or 10, whichever is applicable.

(2)  Unless the court otherwise orders, any costs payable by a party in respect of an action or cross-claim shall be allowed, where the amount in issue in the action or cross-claim:

(a)  does not exceed $1,000, on the 1st scale,

(b)  exceeds $1,000 but does not exceed $2,000, on the 2nd scale,

(c)  exceeds $2,000 but does not exceed $5,000, on the 3rd scale,

(d)  exceeds $5,000 but does not exceed $15,000, on the 4th scale,

(e)  exceeds $15,000 but does not exceed $20,000, on the 5th scale, or

(f)  exceeds $20,000, on the 6th scale.

(2A)  Where an amount of costs determined under rule 7 or 8, or fixed by rule 10, is reduced or increased by the operation of subrules (1) and (2), the amount so reduced or increased shall, if it is not expressed in whole dollars, be recalculated to the nearest dollar and, for the purpose of the recalculation, an amount of 50 cents attached to an amount in whole dollars shall be deemed to be 1 dollar.

(3)  Unless the court otherwise orders, where a defendant brings a cross-claim and:

(a)  judgment is given for the plaintiff (or the plaintiff otherwise succeeds) in both the action and the cross-claim, any costs payable to the plaintiff shall be allowed on the scale applicable to the action or the scale applicable to the cross-claim, whichever is the higher,

(b)  judgment is given for the defendant (or the defendant otherwise succeeds) in both the action and the cross-claim, any costs payable to the defendant shall be allowed on the scale applicable to the action or the scale applicable to the cross-claim, whichever is the higher,

(c)  judgment is given for each party (or each party otherwise succeeds) in the proceedings commenced by that party, any costs payable to a party shall be allowed on the scale applicable to the proceedings commenced by that party, or

(d)  judgment is given against each party (or each party otherwise fails) in the proceedings commenced by that party, any costs payable by a party shall be allowed on the scale applicable to the proceedings commenced by that party.

[DCR Pt 39 r 11]

(4)  Where any costs are payable in respect of enforcing or attempting to enforce payment of a judgment debt, they shall be allowed on the same scale as were the costs of the judgment or order from which the judgment debt results.

[DCR Pt 39 r 13]

(5)  Where 2 or more defendants have been joined in one action, and judgment is given separately against each defendant with costs, unless the court otherwise orders, the costs shall be allowed once only, against all of the defendants, on the scale applicable to the larger or largest of the judgments so given.

[DCR Pt 39 r 14 (1)]

(6)  Payment of any costs allowed under subrule (5) may be enforced by the plaintiff against any one or more of the defendants, but the liability of the defendants one to another for contribution towards any such costs paid to the plaintiff shall be apportioned according to the respective amount of each judgment.

[DCR Pt 39 r 14 (2)]

7 Contested actions

(1)  Where on hearing and determining a contested action or cross-claim the court or an arbitrator orders that a party’s costs of the action or cross-claim shall be paid by another party, the amount of those costs shall, subject to rule 6, be determined by the court or arbitrator (as the case may be) at an amount of not less than $1,275 and not more than $2,550, together with an amount of not less than $180 and not more than $210 for every complete hour of the hearing before the court or arbitrator and the party’s disbursements, unless the court or arbitrator certifies that in the special circumstances applying to the action or cross-claim the amount of the costs should not be so determined.

(2)  Where a court or arbitrator certifies that the amount of any costs should not be determined in accordance with subrule (1), the court or arbitrator shall direct the manner in which that amount is to be determined.

(3)  Where a party’s costs are determined under this rule, the party shall not in respect of the same action or cross-claim be entitled to recover any costs through the operation of rule 10 (1).

8 Motions, adjournments and striking out

(1)  Where the court orders under Part 15 rule 6 (1) that a party’s costs incurred by reason of an application shall be paid by another party, the amount of those costs shall, subject to rule 6, be determined at $450 and the party’s disbursements in respect of the application, unless the court certifies that in the special circumstances applying to the application the amount of the costs should not be so determined.

(2)  Where the court adjourns any proceedings on terms that a party’s costs for the day be paid by another party, the amount of those costs shall, subject to rule 6, be determined at $225 and the party’s disbursements in respect of the day, unless the court certifies that in the special circumstances applying to the adjournment the amount of the costs should not be so determined.

(3)  Where the court or a registrar strikes out any proceedings and orders that a party’s costs of the proceedings be paid by another party, the amount of those costs shall, subject to rule 6, be determined at $450 and the party’s disbursements, unless the court or registrar certifies that in the special circumstances applying to the proceedings the amount of the costs should not be so determined.

(4)  Where the court or a registrar certifies that the amount of any costs should not be determined in accordance with subrule (1), (2) or (3), as the case may be, the court or registrar shall direct the manner in which that amount is to be determined.

9 Witnesses’ expenses etc

(1)  Subject to this Part, the court or an arbitrator may order that costs payable to a party include as disbursements amounts paid to witnesses for their attendance or other assistance in the hearing of the action or cross-claim.

(1A)  Where the court or arbitrator is satisfied that it was necessary to the attaining of a just decision on an action or cross-claim that a party attend the hearing of the action or cross-claim, the court or arbitrator may order that any costs payable to the party include an amount in respect of the party’s loss of earnings in attending the hearing, not exceeding the amount that would have been payable to the party as witnesses’ expenses had the party been a witness in the action or cross-claim.

(2)  Subject to this rule, the amount ordered in respect of any witness shall not exceed the amount appropriate to such a witness determined in accordance with subrule (8).

(3)  An amount may be ordered under subrule (1) in respect of a witness whether or not the witness gave evidence and whether or not the witness was subpoenaed.

(4)  Where a witness necessarily remains in the vicinity of the hearing for the purpose of giving evidence, any order under subrule (1) in respect of the witness may include such amount (if any) in respect of compensation paid to the witness for waiting time as the court or arbitrator may order.

(5)  Where a witness necessarily, personally or by an employee, spends substantial time or incurs expense in locating, collating or copying documents or other records so as to enable the witness to give evidence or produce documents for the purpose of an action or cross-claim, any order under subrule (1) in respect of the witness may include such amount (if any) in respect of the time or expense of the witness as the court or arbitrator may order.

(6)  An order under subrule (1) in respect of an expert witness may include such amount (if any) as the court or arbitrator may order in respect of anything done by the witness in qualifying to give evidence.

(7)  An order under subrule (1) may include such amount (if any) as the court or arbitrator may order in respect of the expenses of preparing and proving plans, drawings, models, photographs or the like for the purposes of the action or cross-claim.

[cf DCR Pt 39 r 22]

(8)  For the purposes of subrule (2), the amounts appropriate to witnesses are:

Generally
(a)	Barristers, solicitors, medical practitioners, surveyors, architects, accountants, pharmacists and other professional persons	$88
	or per hour	$65
(b)	Whenever the persons mentioned in item (a) are called to give expert evidence and not evidence of fact:
	(i)  to give expert evidence, including travelling to court or place of arbitration, where period from departure from home, hospital, place of practice, office, place of employment or other place to return thereto from attendance at court or before arbitrator does not exceed one and a half hours	$134
	(ii)  for every full hour after the first hour and a half, or a proportion thereof if not for a full hour	$65
	(iii)  the amount payable under (i) and (ii) above shall not exceed a total of $534 per day
(c)	Travelling and other allowances:
	(i)  payment to be made at the rate of 80 cents per kilometre one way after the first kilometre up to and including 80 kilometres
	(ii)  exceeding 80 kilometres—the reasonable costs thereof plus the costs of reasonable accommodation and meals
(d)	Other witnesses:
	Such allowance as is commensurate with the witness’s remuneration or circumstances but not exceeding the allowances provided by items (a), (b) and (c)
(e)	Such additional amount as is reasonable for travelling expenses and sustenance and, in cases where accommodation is required, such further amount as having regard to all the circumstances is reasonable and has been paid in respect thereof
Medical examinations and reports
(f)	(i)  Report made by an attending general practitioner:
	(a)  where a re-examination of a patient is not required	$37
	(b)  where a re-examination of a patient is required	$67
	(ii)  Report made by an attending specialist:
	(a)  where a re-examination of a patient is not required	$55
	(b)  where a re-examination of a patient is required	$92
	(iii)  Report made by a specialist who has not previously treated the patient:
	(a)  where an examination is not required	$67
	(b)  where an examination is required	$112
	(iv)  Attending a joint examination (including travelling time where the distance does not exceed 8 kilometres):
	(a)  as examining practitioner (including provision of report)	$134
	(b)  as non-examining practitioner when the examination is conducted by another practitioner	$55
	(c)  provision of report by non-examining practitioner (see (b) above)	$55

10 Fixed amounts of costs

(1)  Unless the court or registrar otherwise orders, a plaintiff who has completed any of the steps mentioned in paragraphs (a)–(d) of this subrule shall be entitled, subject to rule 6, to recover against the defendant (or, where there is more than one defendant, once only against all of the defendants against whom the step is taken), in respect of:

(a)  the issue of a statement of claim—$175,

(b)  the entry of default judgment—$333,

(c)  the obtaining of an order for judgment—$333, or

(d)  the obtaining of judgment by the court in an undefended action—$527,

as professional costs, together with the plaintiff’s disbursements.

(2)  Where a plaintiff has completed more than one of the steps mentioned in subrule (1) the plaintiff shall be entitled to recover costs under that subrule only in respect of one of those steps.

(2A)  Notwithstanding subrule (1) or (2), if a defendant in an action pays to the plaintiff or to the court the whole of the amount of the debt or damages claimed in the statement of claim, the defendant shall at the same time pay to the plaintiff or to the court the plaintiff’s costs of issue and service of the statement of claim.

(2B)  If such a payment is made after the expiration of 28 days after service of the statement of claim on the defendant, the plaintiff shall be entitled to recover against the defendant such additional amount as the court, on motion, may allow for the costs reasonably incurred by the plaintiff before the payment was made.

(3)  Unless the court or registrar otherwise orders, a judgment creditor who has completed any of the steps mentioned in this subrule shall be entitled, subject to rule 6, to recover against the judgment debtor (or, where there is more than one judgment debtor, once only against all of the judgment debtors against whom the step is taken), in respect of:

(a)  attending to examine a judgment debtor—$53,

(a1)  examining a judgment debtor—$53,

(b)  the issue of a warrant of apprehension—$53, or

(c)  the issue of a writ of execution—$53,

as professional costs, together with the judgment creditor’s disbursements.

(4)  A judgment creditor is not entitled to recover against a judgment debtor any costs of issue and service of an examination summons (other than disbursements) except to the extent that such costs are included in an amount recoverable for attending to examine, or examining, the judgment debtor.

11 Proceedings removed into the District Court [cf LC (CC) R r 31A]

Costs payable under an order of the District Court in respect of any step in an action removed into the District Court under section 21B (1) of the Act, taken before that removal, shall not exceed the costs that would have been payable under these rules in respect of that step if the action had not been so removed.

11A Security for costs

(1)  In this rule:

(a)  references to a plaintiff extend to any person who makes a claim for relief in an action, and

(b)  references to a defendant extend to any person against whom a claim for relief is made in an action.

(2)  Where, in any action in a court’s General Division, it appears to the court on the application of a defendant:

(a)  that a plaintiff is ordinarily resident outside the Commonwealth of Australia,

(b)  that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so,

(c)  subject to subrule (3), that the address of a plaintiff is not stated or is mis-stated in his originating process,

(d)  that a plaintiff has changed his address after the commencement of the action with a view to avoiding the consequences of the action, or

(e)  that there is reason to believe that a plaintiff is unlikely to succeed in the action and will be unable to pay the costs of the defendant if ordered to do so,

the court may if it thinks fit order that plaintiff to give such security as the court thinks fit for the costs of the defendant of and incidental to the action and that the action be stayed until the security is given.

(3)  The court shall not order a plaintiff to give security by reason only of subrule (2) (c) if it appears to the court that the failure to state the address of the plaintiff or the mis-statement of the address was made without intention to deceive.

(4)  Where the court orders a plaintiff 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, and in the absence of any such direction shall be given to the satisfaction of the registrar.

(5)  Where a plaintiff fails to comply with an order under this rule, the court may, on terms, order that the action or any part of the action be struck out.

12 Small Claims Division

(1)  Costs may not be awarded, and are not recoverable, in a court’s Small Claims Division except as provided by this rule.

(2)  The costs (including professional costs) of:

(a)  issuing a statement of claim, and

(b)  entering a default judgment, and

(c)  obtaining an order for judgment, and

(d)  enforcing a judgment,

in relation to an action in a court’s Small Claims Division are recoverable as if the action were in the court’s General Division.

(3)  If a court gives judgment in an action in its Small Claims Division, it may award costs to a party against another party.

(3A)  If a court sitting in its Small Claims Division makes an order setting aside a judgment, it may award costs to a party against another party.

(4)  If a court:

(a)  adjourns or strikes out an action in its Small Claims Division or reinstates an action that has been struck out, and

(b)  is satisfied that the failure of the action to proceed was caused by the fault or neglect of a party to the action,

the court may award costs against the party to another party.

(4A)  Where the function of a court specified in Part 33 rule 1 (3) to adjourn, strike out, or reinstate an action as referred to in subrule (4) is exercised by the registrar, the function of the court to award costs under that subrule may also be exercised by the registrar.

(4B)  If a party discontinues an action in a court’s Small Claims Division, the court may award costs against the party to another party.

(5)  The costs that may be awarded to a party under subrule (3), (3A), (4) or (4B) may include the party’s disbursements properly incurred and may also include:

(a)  an amount in respect of the party’s loss of earnings in attending the court for a hearing or pre-trial review, or both, not exceeding the amount that would have been payable to the party as witnesses’ expenses had the party been a witness in the action, and

(b)  if the party appeared by a solicitor or barrister—such professional costs as would have been recoverable by the plaintiff had default judgment been entered in the action, but may not include any other costs.

(6)  In exercising its discretion under section 34 of the Act in respect of the costs of an action in its General Division, a court must consider whether or not the action should have been heard and determined in the court’s Small Claims Division.

Part 31A Costs after 30 June 1994

pt 31A, rules 1–6: Ins 22.7.1994.

pt 31A, rule 7: Ins 22.7.1994. Am 16.12.1994.

pt 31A, rules 8–12: Ins 22.7.1994.

pt 31A, rule 13: Ins 28.7.1995.

pt 31A, rules 14–23: Ins 22.11.1996.

1 Application

(1)  The provisions of this Part apply, subject to their terms, to and in respect of costs payable or to be assessed under any order of a court or under the rules.

(2)  The application of this Part is subject to the Legal Profession Act 1987 and the regulations made under that Act.

2 Time for dealing with costs

A court may, in any proceedings, exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings.

3 Assessed costs and other provisions

(1)  Subject to this Part, where, by or under these rules, or any order of a court, costs are to be paid to any person, that person shall be entitled to assessed costs.

(2)  Where a court orders that costs be paid to any person, the court may, at any time prior to the costs being referred for assessment, further order that, as to the whole or any part (specified in the order) of the costs, instead of assessed costs, that person shall be entitled to:

(a)  a proportion specified in the order of the assessed costs,

(b)  the assessed costs from or up to a stage of the proceedings specified in the order, or

(c)  a gross sum specified in the order.

4 Order for costs—when payable

(1)  Where, before the conclusion of any proceedings, a court or registrar makes an order for the payment of costs or a motion is refused with costs, the costs shall not, unless the court or registrar otherwise orders, be payable until after the conclusion of the proceedings.

(2)  Where, in any proceedings, it appears to the court or registrar, on application, that there is no likelihood of any further order being made in the proceedings, the court or registrar may order that any costs ordered to be paid shall be payable forthwith.

5 Following the event

If a court makes any order as to costs, the court shall, subject to this Part, order that the costs follow the event, except where it appears to the court that some other order should be made as to the whole or any part of the costs.

6 Party and party basis

Costs payable by or under the rules or any order of a court or registrar shall be payable on a party and party basis unless the rules or an order provide that they are payable on an indemnity basis.

7 Fixed amounts of costs

(1)  Subject to subrule (2), the costs recoverable in respect of any of the following matters:

(a)  issuing a statement of claim,

(b)  obtaining an order for judgment,

(c)  obtaining judgment in an undefended action,

(d)  an examination summons,

(e)  issuing a warrant for apprehension,

(f)  issuing a writ of execution,

(g)  serving process, and

(h)  substituted service of process,

on or after 1 July 1994 are the costs that would have been recoverable under a rule, a scale of costs, or a costs determination in force on 30 June 1994 in respect of the matter, notwithstanding that the rule, scale or determination has ceased to have effect.

(2)  Where a party is entitled to recover disbursements, those disbursements shall include any amount paid to the registrar for service of the statement of claim in the action by post under Part 7 rule 20 (1).

8 Costs order to confirm earlier costs orders

An order as to costs made in proceedings after 30 June 1994 shall be taken to expressly confirm all earlier orders as to costs made in the proceedings.

9 Order confirming rule as to payment of costs

Where a party to proceedings has become liable under a rule to pay any of the costs of the proceedings of any other party, the court may order the party so liable to pay those costs.

10 Proceedings removed into the District Court

Costs payable under an order of the District Court in respect of any step in an action removed into the District Court under section 21B (1) of the Act, taken before that removal, shall not exceed the costs that would have been payable under these rules in respect of that step if the action had not been so removed.

11 Security for costs

(1)  In this rule:

(a)  references to a plaintiff extend to any person who makes a claim for relief in an action, and

(b)  references to a defendant extend to any person against whom a claim for relief is made in an action.

(2)  Where, in any action in a court’s General Division, it appears to the court on the application of a defendant:

(a)  that a plaintiff is ordinarily resident outside the Commonwealth of Australia,

(b)  that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so,

(c)  subject to subrule (3), that the address of a plaintiff is not stated or is mis-stated in the originating process,

(d)  that a plaintiff has changed his address after the commencement of the action with a view to avoiding the consequences of the action, or

(e)  that there is reason to believe that a plaintiff is unlikely to succeed in the action and will be unable to pay the costs of the defendant if ordered to do so,

the court may if it thinks fit order that plaintiff to give such security as the court thinks fit for the costs of the defendant of and incidental to the action and that the action be stayed until the security is given.

(3)  The court shall not order a plaintiff to give security by reason only of subrule (2) (c) if it appears to the court that the failure to state the address of the plaintiff or the mis-statement of the address was made without intention to deceive.

(4)  Where the court orders a plaintiff 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, and in the absence of any such direction shall be given to the satisfaction of the registrar.

(5)  Where a plaintiff fails to comply with an order under this rule, the court may, on terms, order that the action or any part of the action be struck out.

12 Small Claims Division

(1)  Costs may not be awarded, and are not recoverable, in a court’s Small Claims Division except as provided by this rule.

(2)  The costs (including professional costs) of:

(a)  issuing a statement of claim, and

(b)  entering a default judgment, and

(c)  obtaining an order for judgment, and

(d)  enforcing a judgment,

in relation to an action in a court’s Small Claims Division are recoverable as if the action were in the court’s General Division.

(3)  If a court gives judgment in its Small Claims Division, it may award costs to a party against another party.

(4)  If a court sitting in its Small Claims Division makes an order setting aside a judgment, it may award costs to a party against another party.

(5)  If a court:

(a)  adjourns or strikes out an action in its Small Claims Division or reinstates an action that has been struck out, and

(b)  is satisfied that the failure of the action to proceed was caused by the fault or neglect of a party to the action,

the court may award costs against the party to another party.

(6)  Where the function of a court specified in Part 33 rule 1 (3) to adjourn, strike out, or reinstate an action as referred to in subrule (5) is exercised by the registrar, the function of the court to award costs under that subrule may also be exercised by the registrar.

(7)  If a party discontinues an action in a court’s Small Claims Division, the court may award costs against the party to another party.

(8)  The costs that may be awarded to a party under subrule (3), (4), (5) or (7) may include the party’s disbursements properly incurred and may also include:

(a)  an amount in respect of the party’s loss of earnings in attending the court for a hearing or pre-trial review, or both, not exceeding the amount that would have been payable to the party as witness’ expenses had the party been a witness in the action, and

(b)  if the party appeared by a solicitor or barrister—such professional costs as would have been recoverable by the plaintiff had default judgment been entered in the action,

but may not include any other costs.

(9)  In exercising its discretion under section 34 of the Act in respect of an action in its General Division, a court must consider whether or not the action should have been heard and determined in the court’s Small Claims Division.

13 Applications and appeals under section 208M of the Legal Profession Act 1987

(1)  In this rule:

appeal means appeal to a court under section 208M of the subject Act.

application for leave means application under section 208M (2) of the subject Act seeking leave of a court to appeal to the court against a determination of a costs assessor.

subject Act means the Legal Profession Act 1987.

(2)  An application for leave may be made by notice of motion under Part 15.

(3)  An application for leave must be filed and served within 14 days of the date on which the decision sought to be appealed against was given or within such extended time as the court may fix.

(4)  The court may extend the time prescribed in subrule (3) at any time.

(5)  The applicant for leave must file with, or include in, the notice of motion or a supporting affidavit:

(a)  a statement of the points on which the applicant objects to the decision of the assessor,

(b)  a statement of the reasons why leave should be given,

(c)  all of the documents which were submitted by the parties for the consideration of the assessor, or copies of those documents, and

(d)  where the assessor has given reasons for the decision sought to be appealed against, a copy of those reasons.

(6)  On the day fixed for the hearing or adjourned hearing of the application, the court may proceed to hear and determine the application or may adjourn it to another day.

(7)  The court may, whether or not it adjourns the application, require any party to produce any relevant document in the party’s possession or control, or to provide further particulars as to the party’s case in the application.

(8)  Where the court grants leave to appeal under section 208M (3) of the subject Act, it may give direction as to the extent, if any, to which matters before it, and decisions by it, on the application for leave are admissible or binding on the hearing of the appeal, and may:

(a)  proceed immediately to hear and determine the appeal, or

(b)  give such directions as to filing and service of documents, conferences, fixing of a hearing date, and any other matter as appear requisite for the hearing and determination of the appeal.

(9)  Unless the court otherwise orders, an application for leave and an appeal shall be heard and determined in chambers, and not in the presence of the parties.

14 Extension of time

Where a party applies for an extension of time, unless the court otherwise orders, the party shall, after the conclusion of the proceedings, pay the costs of an occasioned by the application, or any order made on or in consequence of the application.

15 Judgment by confession or agreement

Where judgment in favour of the plaintiff is entered up under Part 12 rule 2 or 3, subject to any provision to the contrary in any agreement filed in the action under Part 12 rule 3 there shall be added to the judgment debt:

(a)  if the judgment is entered up within 28 days after service of the statement of claim in the action—the costs of issuing and serving the statement of claim, or

(b)  otherwise—the costs of issuing and serving the statement of claim, or such other amount as the court on motion may allow for the costs reasonably incurred by the plaintiff before judgment, as the plaintiff may elect.

16 Non-admission of fact or document

(1)  Where a party to any proceedings (in this rule called the disputing party) serves a notice under Part 14 rule 2 (3) or 3 (3) disputing a fact or the authenticity of a document and afterwards the fact or the authenticity of the document is:

(a)  proved in the proceedings, or

(b)  admitted for the purpose of the proceedings by the disputing party,

unless the court otherwise orders, the disputing party shall, after the conclusion of the proceedings, pay the costs of the party upon whom the notice is served, assessed on an indemnity basis, occasioned by:

(c)  proof of the fact or the authenticity of the document, or

(d)  preparation for the purpose of proving the fact or the authenticity of the document,

as the case may be.

(2)  An entitlement to costs under this rule shall not be affected by any order as to costs unless that order refers to the notice by the disputing party giving rise to the entitlement.

(3)  This rule has effect notwithstanding rules 19 and 20.

17 Interlocutory application

(1)  Where the court disposes of an application under Part 15 in or for the purposes of or in relation to an action, the court may if it thinks fit order that an amount in respect of any additional costs incurred by reason of the application be paid by a party to the action to another party.

(2)  Where the court makes an order under subrule (1) that an amount be paid by a party to another party, it may if it thinks fit direct that the amount be paid within a time specified in the order.

(3)  Where the court makes an order under subrule (1) that an amount be paid by a party to another party, but does not direct under subrule (2) that the amount be paid within a time specified in the order, the amount shall become payable when judgment is given or entered up in the action to which the application relates, or when the action is otherwise finally disposed of.

18 Amendment

Where a party amends a document under Part 16, with or without leave, the court may, on the application of any other party, and if it thinks fit, at any time order the party to pay to the other party such amount as the court determines in respect of any additional costs incurred by reason of the amendment.

19 Discontinuance

Where, pursuant to Part 17 rule 1 (2), a party to any proceedings discontinues the proceedings without leave as to the whole or any part of the relief claimed by him against any other party, the discontinuing party shall, unless:

(a)  the court otherwise orders, or

(b)  the notice of discontinuance contains a statement under Part 17 rule 5 (3),

pay the costs of the party against whom the discontinued claim is made, occasioned by the discontinued claim and incurred before service of notice of the discontinuance.

20 Offer of compromise

(1)  Subject to subrule (2), upon the acceptance of an offer of compromise in accordance with Part 17A rule 5 (4), the defendant shall, unless the court otherwise orders, pay the costs in respect of the claim by the plaintiff against the defendant up to and including the day the offer was accepted.

(2)  If a notice of offer contains a term which purports to negative or limit the operation of subrule (1), that offer shall be of no effect for any purpose under Part 17A or this rule.

(3)  Subrules (4)–(6) apply to an offer which has not been accepted at the time prescribed by Part 17A rule 3 (8).

(4)  Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the court otherwise orders, the plaintiff shall be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis, in addition to the plaintiff’s costs incurred before that time, assessed on a party and party basis.

(5)  For the purpose of subrule (4), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the court otherwise orders, the plaintiff shall be entitled to the plaintiff’s costs in respect of the claim from 11 am on the day following the day on which the offer was made, assessed on an indemnity basis, in addition to the plaintiff’s costs incurred before that time, assessed on a party and party basis.

(6)  Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then, unless the court otherwise orders, the plaintiff shall be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim up to and including the day the offer was made, assessed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for the defendant’s costs in respect of the claim thereafter, assessed on a party and party basis.

(7)  For the purpose of subrule (6), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the court otherwise orders, the plaintiff shall be entitled to his costs in respect of the claim up to 11 am on the day following the day on which the offer was made, assessed on a party and party basis, and the defendant shall be entitled to his costs in respect of the claim thereafter, assessed on a party and party basis.

(8)  Where a plaintiff obtains an order or judgment for the payment of a debt or damages and:

(a)  the amount payable under the order or 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 plaintiff 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 (6), the court shall disregard so much of the interest or damages in the nature of interest as relates to the period after the day the offer was made.

(9)  For the purpose only of subrule (8), the court may be informed of the fact that the offer was made, and of the date on which it was made, but shall not be informed of its terms.

(10)  If, a reasonable time before the court makes an order under subrule (4) or subrule (6), the party to whom the offer is made requests the party making the offer to satisfy the court that the party making the offer was at all material times willing and able to carry out the offer:

(a)  if the court is so satisfied—the party making the request shall pay the costs of the party to whom the request is made occasioned by the request, or

(b)  otherwise:

(i)  subrules (4) and (6) shall not apply, and

(ii)  the party to whom the request is made shall pay the costs of the party making the request occasioned by the request,

unless the court otherwise orders.

(11)  Unless the court otherwise orders, any application for an order for costs under subrule (4) or subrule (6) must be made immediately after the order or judgment giving rise to the entitlement to the order for costs is made or given.

21 Offer to contribute

The court may take an offer to contribute into account in determining whether it should order that the offeree should pay the whole or part of:

(a)  the costs of the offeror, or

(b)  any costs which the offeror is liable to pay to the plaintiff.

22 Writ of execution

(1)  The costs of a writ of execution, whether executed or not, and whether productive or not, shall be the amount allowed by the registrar of the home court.

(2)  unless the court or registrar otherwise orders, the costs of a writ of execution, whether executed or not, and whether productive or not, shall be added to and form part of the judgment debt.

23 Arbitration (Civil Actions) Act 1983

(1)  Where proceedings are heard and determined under section 18 (3) (b) of the Arbitration (Civil Actions) Act 1983 (the Arbitration Act) and the determination of the court is substantially more favourable to the applicant for the order for rehearing (the applicant) than is the determination of the arbitrator, the court may order that the fee paid by the applicant for filing the application be refunded to the applicant wholly or to the extent specified by the court.

(2)  Where a party is required to pay the costs of another party in respect of a rehearing under section 18 (3) (b) of the Arbitration Act, those costs shall not include the fee paid for filing the application for the order for the rehearing unless the court so directs.

(3)  The court shall not give a direction under subrule (2) unless it is of opinion that the party ordered to pay the costs unreasonably caused the making of the application for the order for the rehearing.

(4)  Subject to subrule (5), where proceedings are heard and determined under section 18 (3) (b) of the Arbitration Act, and the determination of the court is not substantially more favourable to the applicant than is the determination of the arbitrator, the court:

(a)  shall not make any order for the payment by any other party of the applicant’s costs incurred by reason of the rehearing, and

(b)  shall order the applicant to pay the costs of every other party incurred by reason of the rehearing.

(5)  The court may in respect of a rehearing certify that the special circumstances of the case require the court:

(a)  to make an order referred to in subrule (4) (a), in which case the court may make that order, or

(b)  to refrain from making an order referred to in subrule (4) (b), in which case the court may refrain from making that order.

(6)  Where, by operation of section 18 (5) of the Arbitration Act, an order for rehearing of proceedings ceases to have effect, the applicant shall pay the costs of every other party incurred by reason of the order for rehearing, unless the court otherwise orders.

(7)  Unless the court otherwise orders, any application for an order or direction under this rule in respect of costs consequent on the rehearing of an action must be made immediately after judgment is given on the rehearing.

Part 32 Interpleader

1 Notice of claim

(1)  Where a claim is made to a Sheriff’s officer or bailiff as referred to in section 66 (1) (b) of the Act, the Sheriff’s officer or bailiff shall forthwith send by post or otherwise notice of the claim to the judgment creditor.

[cf DCR Pt 42 r 1 (1); Supreme Court Rules Pt 52 r 6]

(2)  If the judgment creditor, in writing forwarded to the Sheriff’s officer or bailiff, admits the claim or requests the Sheriff’s officer or bailiff to withdraw from possession, the Sheriff’s officer or bailiff shall, on receipt of any such admission or request, withdraw from possession and the judgment creditor shall not be liable for any fees or expenses incurred by the Sheriff’s officer or bailiff in respect of the execution after that receipt.

[DCR Pt 42 r 1 (2); cf SCR Pt 52 r 7]

2 Application under sec 66 (3A) [cf SCR Pt 52 r 8]

(1)  Where section 66 (3A) of the Act applies to a claim made to a Sheriff’s officer or bailiff and:

(a)  the Sheriff’s officer or bailiff has, under rule 1 (1), sent notice of the claim to the judgment creditor,

(b)  the judgment creditor does not, within 4 days after receipt of that notice, forward to the Sheriff’s officer or bailiff notice that the judgment creditor admits the claim, and

(c)  the claim has not been withdrawn,

the Sheriff’s officer or bailiff may by notice of motion apply for relief by way of interpleader in respect of the claim.

(2)  The Sheriff’s officer or bailiff shall serve any notice of motion under subrule (1) on the judgment creditor and the claimant.

3 Interpleader action—sec 67

(1)  For the purposes of section 67 (1) of the Act, the prescribed time is 14 days after the service on the claimant of the summons issued under that subsection.

[LC (CC) R r 60 (b)]

(2)  For the purposes of section 67 (5) of the Act:

(a)  the prescribed manner is by filing in the office of the registrar who issued the summons under section 67 (1) of the Act a written statement of the claimant’s explanation, and

(b)  the prescribed time is 14 days after the expiry of the time for compliance with that summons.

[cf LC (CC) R r 63]

Part 33 Registrars

pt 33, rule 1: Am 27.4.1990; 31.8.1990; 9.11.1990. Subst 18.12.1992. Am 5.3.1993; 23.9.1994; 15.10.1999; 19.10.2001.

pt 33, rule 2: Rep 18.12.1992.

pt 33, rule 4: Am 23.8.1991.

1 Functions of registrars

(1)  The registrar of any court may exercise the functions of the court:

(a)  to make in any action any order which the court may make, being an order consented to by:

(i)  the parties to the application for the order, and

(ii)  any other person who will be required to comply with the order or to suffer anything to be done under the order,

(b)  to enter a judgment to which all the parties consent, and

(c)  to stay proceedings in any action, subject to the stay subsisting only pending a hearing by the court set down for the first available day.

(2)  The registrar of a court specified in subrule (3) may exercise the functions of the court to make, or refuse to make, orders:

(a)  under Part 24 rule 5 (6) (which relates to inspection of subpoenaed documents),

(b)  for substituted service of process,

(c)  in respect of the amendment of documents,

(d)  for expedition or adjournment of the hearing of an action, which orders may be made on terms, including terms as to costs,

(e)  that proceedings be heard together,

(f)  for extension or abridgment of time,

(g)  to give further particulars,

(h)  setting aside a default judgment subject to the filing of a notice of grounds of defence,

(i)  for costs where an order is made or refused under paragraph (h),

(j)  under section 21H (1) of the Act, and

(k)  revoking any order made under section 21H (1) of the Act by a registrar.

(3)  The courts specified for the purposes of subrule (2) are the courts held at the Downing Centre, Albury, Balmain, Bankstown, Bathurst, Belmont, Blacktown, Broken Hill, Burwood, Camden, Campbelltown, Coffs Harbour, Dubbo, East Maitland, Fairfield, Gosford, Goulburn, Hornsby, Kogarah, Lismore, Liverpool, Manly, Newcastle, Newtown, North Sydney, Nowra, Orange, Parramatta, Penrith, Queanbeyan, Redfern, Ryde, Sutherland, Tamworth, Taree, Toronto, Wagga Wagga, Waverley, Windsor, Wollongong and Wyong.

(4)  The registrars of the courts held at Albury, Bankstown, Blacktown, Burwood, Campbelltown, Downing Centre, Dubbo, Hornsby, Lismore, Liverpool, Newcastle, Orange, Parramatta, Penrith, Sutherland, Wagga Wagga and Wollongong may exercise the functions of the court to make, or refuse to make, orders:

(a)  giving judgment under Part 21 rule 2 (1) (c),

(b)  setting aside under Part 21 rule 2 (2) any judgment given by the registrar under Part 21 rule 2 (1) (c),

(c)  striking out proceedings under Part 21 rule 3 (1) (a), (b) or (c),

(d)  reinstating under Part 21 rule 3 (2) any proceedings struck out by the registrar,

(e)  granting leave to discontinue proceedings under Part 17 rule 1 (2) (c),

(f)  removing a stay of proceedings under Part 19 rule 2 (2),

(g)  setting aside a default judgment:

(i)  on the application of the plaintiff, or

(ii)  in any case, subject to the filing of a notice of grounds of defence,

(h)  for costs in respect of any order made or refused by the registrar under these rules or in respect of any call-over, conference or pre-trial review presided over, or scheduled to be presided over, by the registrar, and

(i)  setting aside a subpoena either wholly or in part under Part 24, rule 7.

(5)  This rule:

(a)  applies except where the court otherwise orders, and

(b)  confers functions additional to, and not in derogation from or substitution for, functions conferred otherwise in these rules.

(6)  Without limiting subrules (1) to (5), a registrar may exercise any function, if he is authorised to exercise the function, during or with respect to the conduct by the registrar of a call-over mentioned in Part 9 rule 4, whether or not any notice of motion is filed with regard to the exercise of the function.

2 (Repealed)

3 Striking out proceedings

(1)  A registrar may, if the registrar thinks fit, at any time on terms strike out any proceedings properly listed before the registrar, and without affecting the generality of the foregoing provisions of this subrule, a registrar may so strike out proceedings if:

(a)  no party appears,

(b)  a defendant does, but the plaintiff does not, appear, or

(c)  a respondent does, but the applicant does not, appear.

(2)  Where proceedings are struck out under subrule (1), the registrar may, on the application of any party, order that the proceedings be reinstated on terms, and without affecting the generality of the foregoing provisions of this subrule, the proceedings may be so reinstated on such terms and conditions as to costs, the staying of the proceedings, and of any subsequent proceedings brought on the same or substantially the same cause of action, until payment of costs, and the priority of the hearing of the proceedings as the registrar thinks fit.

4 Chamber business

(1)  An application to a Magistrate in chambers in respect of any proceedings shall be made by filing with the registrar of the proper court in relation to the proceedings:

(a)  notice of the application, unless such a notice may be dispensed with under these rules,

(b)  all affidavits and other documents on which it is intended to move, and

(c)  a form of the order sought, where such a form is required by the registrar.

(2)  A registrar with whom documents are filed as mentioned in subrule (1) shall as soon as practicable submit the documents, and any other documents filed in the proceedings, to a Magistrate for consideration of the application, or, where undue delay would thereby be avoided, forward them to any other registrar for submission by that registrar to a Magistrate.

[DCR Pt 43 r 9]

(3)  This rule does not apply to an action in a court’s Small Claims Division.

(4)  Subrule (3) does not prevent a court from making any order or giving any direction.

5 Mandatory order [DCR Pt 43 r 11]

(1)  A court may by order direct the registrar or any other officer of the court to do or refrain from doing, in any proceedings, any act relating to the duties of the office.

(2)  An application for an order under subrule (1) shall be made upon affidavit filed with the registrar and on giving to the officer concerned such notice as is reasonable in the circumstances of the case.

6 Reference [DCR Pt 43 r 12]

A registrar may, of the registrar’s own motion or on application by a party, refer any proceedings before the registrar to the court.

7 Removal [DCR Pt 43 r 13]

The court, before the conclusion of any proceedings before the registrar, may, on application by a party, order that the proceedings be removed into the court.

8 Disposal [DCR Pt 43 r 14]

On the reference of any proceedings to the court under rule 6, or the removal of any proceedings into the court under rule 7, the court may:

(a)  hear and determine any matter in the proceedings in respect of which matter the proceedings were before the registrar, or

(b)  determine any question arising in the proceedings and remit the proceedings to the registrar with such directions as the court thinks fit.

9 Review [DCR Pt 43 r 15]

Where the registrar gives a direction or makes an order or does any other act in any proceedings, the court may, on application by any party, review the direction, order or act, and may make such order by way of confirmation, variation, discharge or otherwise as the court thinks fit.

Part 34 Disability

pt 34, rule 1: Rep 22.11.1996.

pt 34, rule 3A: Ins 5.5.1995.

pt 34, rules 5, 7, 8: Am 5.5.1995.

1 (Repealed)

2 Reference to tutor [DCR Pt 45 r 1]

Where it is necessary to refer to the office of a tutor, the tutor shall be described as a tutor unless it is necessary to distinguish between the offices of next friend and guardian ad litem.

3 Need for tutor [DCR Pt 45 r 2]

(1)  Subject to subrule (3), a disable person may not, except by the person’s next friend, bring or carry on an action in a court.

(2)  Subject to subrule (3), a disable person may not, except by the person’s guardian ad litem, defend any action.

(3)  Where, in any action, a disable person has a tutor, the disable person may, by the person’s tutor, commence, carry on or defend any cross-claim or any third or subsequent party proceedings.

3A Notice to minor to appoint tutor

In any proceedings in which the plaintiff or applicant believes on reasonable grounds that the defendant or respondent is a minor for whom no tutor has been appointed, the plaintiff or applicant may serve on the defendant or respondent a notice requiring the defendant or respondent to cause a tutor to appear on the record of the proceedings within 28 days of service of the notice. Any such notice must contain advice that if the defendant or respondent does not comply with the notice the plaintiff or applicant will, unless the court otherwise orders, be at liberty to proceed as though the defendant or respondent were not a minor.

4 Conduct of proceedings by tutor [DCR Pt 45 r 3 (1)]

Subject to these rules, where a disable person is a party to any proceedings, anything which would, if the person were not a disable person, be required or authorised by these rules to be done by the person shall or may be done by the person’s tutor.

5 Appointment of tutor generally [cf DCR Pt 45 r 4]

(1)  Subject to subrule (5), and subject to rules 6 and 8, an order appointing a tutor is not necessary.

(2)  A disable person may not be a tutor and a corporation may not be a tutor, but otherwise, and subject to subrules (2A) and (3), any person may be a tutor.

(2A)  The registrar may not be a tutor.

(3)  A person may not be a tutor of a disable person in any action in which the person has an interest adverse to the interest of the disable person.

(4)  A person shall not be made a tutor without the person’s consent.

(5)  Where a person has been or is tutor for a disable person in any action, no other person may, except on appointment by the court, act as tutor for the disable person in that action.

(6)  A person, other than a tutor appointed by the court, shall not take any step in any action as tutor for a disable person unless beforehand there have been filed:

(a)  the person’s consent to act, and

(b)  a certificate by the person’s solicitor, or, where the tutor acts other than by a solicitor, an affidavit by the tutor, that the tutor has no interest in the action adverse to that of the disable person.

6 Appointment of tutor of incompetent person [cf DCR Pt 45 r 5]

(1)  Where an incompetent person has a curator and the curator has or may be given authority, under the Protected Estates Act 1983, to bring or defend proceedings on behalf of the incompetent person, a person other than the curator shall not, unless the court otherwise orders, act as tutor of the incompetent person in an action which the curator has or may be given authority to bring or defend.

(2)  Subrule (1) shall not apply to the Deputy Protective Commissioner while that Commissioner has, under section 5 (5) of the Protected Estates Act 1983, the functions conferred and imposed on the Protective Commissioner by or under that or any other Act or law.

(3)  Where, after the commencement of an action, a party becomes an incompetent person, no step in the action shall be taken by or against the incompetent person until a tutor for the person has been appointed by the court.

(4)  A person shall not take any step in any action as tutor for an incompetent person unless the person has been appointed tutor by the court or unless there has been filed (in addition to the documents mentioned in rule 5 (6)):

(a)  in a case to which subrule (1) applies, a certificate by the tutor that the tutor is curator for the incompetent person and specifying the date on which and the manner by which the tutor became curator, or

(b)  in a case to which subrule (1) does not apply, a certificate by the tutor’s solicitor, or, where the tutor acts other than by a solicitor, an affidavit by the tutor, that the tutor knows or believes that subrule (1) does not apply and giving the grounds of the knowledge or belief.

7 Non-appearance by disable person [DCR Pt 45 r 6]

(1)  Subject to subrule (2), where a statement of claim in an action is served on a disable person, the plaintiff shall not take any further step in the action affecting the disable person until:

(a)  a tutor for the disable person is made to appear on the record of the action or is appointed by the court under rule 8, and

(b)  any time limited by or under any Act within which the further step may not be taken has expired.

(2)  Unless the court otherwise orders, where a minor is a defendant or respondent in any proceedings and does not comply with a notice served on him under rule 3A, the plaintiff or applicant, and the court, may take any step in the proceedings as though the minor were not a minor.

8 Appointment by the court [DCR Pt 45 r 7]

(1)  The court may, on motion by a party to an action or any other person, appoint a tutor for a disable person for the purposes of the action.

(2)  A person moving for an appointment under this rule shall, unless the court otherwise orders, serve notice of the motion on the disable person.

(3)  The evidence on a motion for an appointment under subrule (1) shall include evidence:

(a)  that the person for whom the tutor is proposed to be appointed is a disable person, and

(b)  that the proposed tutor:

(i)  consents to act,

(ii)  is a proper person for appointment, and

(iii)  has no interest in the proceedings adverse to the interest of the disable person.

(c)    (Repealed)

9 Removal [DCR Pt 45 r 8]

(1)  The court may, on motion by a party to an action or by any other person or of its own motion:

(a)  remove a tutor, and

(b)  stay proceedings in the action until appointment of a tutor in place of the tutor removed.

(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 disable person for whom the tutor is tutor.

10 Compromise etc of matter in suit [DCR Pt 45 r 11]

(1)  Where an action has been commenced, and afterwards an agreement is made by the tutor in the action of a disable person for the compromise or settlement of any matter in dispute in the action, the court may approve or disapprove the agreement.

(2)  An agreement approved by the court under subrule (1) is as binding on the disable person as if the disable person were not a disable person and the tutor were the person’s agent to make the agreement.

(3)  An agreement disapproved by the court under subrule (1) is not binding on the disable person.

(4)  This rule does not apply to an agreement for a compromise or settlement to which the Damages (Infants and Persons of Unsound Mind) Act 1929 applies.

11 Terms of approval [cf DCR Pt 45 r 14]

(1)  A court may give its approval under rule 10 on terms.

(2)  Without affecting the generality of subrule (1), a court:

(a)  may, as a term of its approval, require that any money payable to or for the benefit of a disable person be dealt with by way of settlement or otherwise as the court thinks fit for the benefit of the disable person, and

(b)  may make such orders as it thinks fit for the carrying out of its requirements under paragraph (a).

12 Service on disable person [cf DCR Pt 45 r 15]

(1)  This rule applies where, in any action, a document is required to be served on a disable person.

(2)  Service on a disable person shall not be effected otherwise than in accordance with this rule.

(3)  Where the disable person has a tutor or a solicitor in the action, the document may, subject to Part 7 rules 6 and 7, be served on the tutor or solicitor.

(4)  The document may be served on any person (including the disable person) whom the court may, before or after service, approve.

(5)  Where the person to be served is a minor, and has no tutor in the action, the document may be served:

(a)  if the person is aged 16 years or upwards, on the person,

(b)  on a parent of the person or a guardian of his or her person or estate, or

(c)  if the person has no parent and has no guardian of his or her person or estate, on a person with whom he or she resides or in whose care he or she is.

(6)  Where the person to be served is an incompetent person and has no tutor in the action, the document may be served:

(a)  if the person has a curator, on the curator, or

(b)  if the person has no curator, on a person with whom he or she resides or in whose care he or she is.

(7)  A document served pursuant to any of subrules (3)–(6) must be served in the manner required by these rules with respect to the document.

(8)  A subpoena addressed to a disable person must, in addition to any other service required by these rules, and notwithstanding anything in subrules (3)–(6), be served personally on the disable person.

(9)  This rule does not extend the jurisdiction of a court over a disable person absent from the State.

Part 35 Business names

1 Definition [DCR Pt 46 r 1]

In this Part:

business name means a name, style 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 carries on business, without any addition.

2 Service on unregistered firm [cf DCR Pt 46 r 2]

(1)  Where a person is carrying on business within New South Wales under a business name not registered under and for the purposes of the Business Names Act 1962 in relation to that person, any statement of claim or other document in or relating to any action may be served on the person:

(a)  by leaving a copy of the document at a place within New South Wales where the business is carried on with some person apparently engaged (whether as servant or otherwise) in the business and apparently of or above the age of 16 years, or

(b)  by sending a copy of the document by post addressed to the business name or to the person to be served at a place within New South Wales where the business is carried on.

(2)  Subrule (1) applies whether the person to be served is sued in the person’s own name or in a business name.

(3)  Service in accordance with subrule (1) shall have effect as personal service.

(4)  Where a document is served in accordance with subrule (1) (a) or (b), the place of service shall, for the purpose of the action, be the place mentioned in that paragraph, wherever (whether within New South Wales or not) the person served may be at the time of service.

(5)  This rule does not limit the operation of section 31 (2) of the Business Names Act 1962, or of any other Act or any rule or regulation relating to service.

3 Grounds of defence [cf DCR Pt 46 r 3]

(1)  Where any person is sued in a business name, the person shall not file notice of grounds of defence except in the person’s own name.

(2)  Where any person files notice of grounds of defence in an action in which the person is sued in a business name, the person shall file with the notice, and serve on the plaintiff, 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 proceedings.

(3)  Where a person fails to comply with subrule (2), the court may order that the person’s notice of grounds of defence be struck out.

4 Amendment as to parties [cf DCR Pt 46 r 4]

(1)  Where an action is commenced against any person in a business name, the plaintiff shall, as soon as practicable, take all reasonable steps for the purpose of ascertaining the name of the defendant and shall, so far as practicable, make amendments so that the action is continued against the person sued in his or her own name and not in his or her business name.

(2)  Where an action is commenced against any person in a business name, the plaintiff shall not, without the leave of the court or registrar, take any step in the action, except in respect of service of the statement of claim 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 Part 16 rules 7, 8 and 9.

(4)  A party may make any amendment pursuant to Part 16 rule 2 notwithstanding that the party has made an amendment under this rule.

5 Execution [DCR Pt 46 r 5]

(1)  Where an action against a person in a business name is continued by leave given under rule 4, a judgment or order against the 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, against any other property which is property of the partnership.

(3)  In subrule (2):

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 interests of that person.

6 Variation of judgment or order [DCR Pt 46 r 6]

(1)  Notwithstanding rule 5, 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 the person’s own name and, when so varied, the judgment or order may be enforced accordingly.

(2)  Notice of a motion for variation of a judgment or order under subrule (1) shall be served on the person mentioned in that subrule, and rule 2 shall not apply to that service.

Part 36 Documents

pt 36, rule 2: Am 23.8.1991.

pt 36, rule 6: Subst 7.8.1998.

1 Preparation [cf LC (CC) R r 77]

Except where a party prepares the party’s own documents, all documents required in any action shall be prepared by the registrar.

2 Heading and title [cf DCR Pt 47 r 1]

(1)  A document in any action shall be headed in the proper court in relation to the action, and where the document is filed at a court other than the proper court the heading shall contain a note that the document was filed at that other court.

(1A)  The heading of any document in an action to be heard and determined in a court’s Small Claims Division must contain the words “SMALL CLAIMS DIVISION”.

(2)  A document in any action shall show the number and year allotted to the action under Part 5 rule 3 (3).

(3)  A document in any action shall be entitled between the parties, and not otherwise.

(4)  Except in the case of a statement of claim, a document to be served on a person not before the service a party to the action, a form of judgment or final order, or a certificate under section 60 of the Act, a document may bear an abbreviation of the title of the action sufficient to identify the action.

3 Forms [DCR Pt 47 r 2]

(1)  It shall be sufficient compliance with any requirement of the Act or 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.

(2)  The Chief Magistrate may from time to time cause to be published forms approved for use in courts, and all documents filed in any proceedings shall be in forms similar to the forms so approved where those forms are applicable, and where no approved form is applicable to a document the document shall be framed to the satisfaction of the registrar.

4 General requirements [DCR Pt 47 r 3]

(1)  This rule applies to a document prepared by or on behalf of a party for use in a court, except to the extent that the nature of the document renders compliance impracticable.

(2)  There shall be lodged with any document as many copies of the document as there are parties to be served.

(3)  A document shall be on paper of durable quality, capable of receiving ink writing, and of or about “A4” standard size, and shall be folded once lengthwise.

(4)  The writing on a document shall be on one face of the paper only, and a margin of not less than 25 millimetres shall be kept clear on the left hand side.

(5)  There shall be a space of not less than 3 millimetres between the lines of writing.

(6)  The writing shall be clear, sharp, legible and permanent.

(7)  Except where otherwise required by the Act or these rules, a carbon copy shall not be filed.

(8)  A document shall not be filed if it bears any blotting, erasure, or such alteration as to cause material disfigurement, or if it is in an unclean or other objectionable condition.

(9)  A document shall not be filed if, by reason of any defect or failure to comply with any rule or otherwise, the document would if filed be ineffective for the purpose for which it is lodged for filing.

5 Words and figures [DCR Pt 47 r 4]

Dates, amounts and other numbers in any document filed in any action shall be expressed in figures and not in words.

6 Signature for solicitor [cf SCR Pt 66 r 9]

(1)  Where any signature by a solicitor (the Solicitor) is required or permitted for the purpose of any proceedings, the signature for the Solicitor by any of the following persons shall, as well as the signature of the Solicitor, be sufficient:

(a)  a partner of the Solicitor,

(b)  a solicitor who is agent of the Solicitor for the purpose of the proceedings,

(c)  a partner of the agent,

(d)  a solicitor employed by:

(i)  the Solicitor, or

(ii)  the agent of the Solicitor, or

(iii)  the Solicitor’s employer, or

(iv)  the firm in which the Solicitor or the agent is a partner.

(2)  Anything that is required or permitted for the purpose of any proceedings to be signed by a solicitor is to be taken to have been signed by the solicitor (being a solicitor corporation) if:

(a)  it has the corporation’s seal affixed to it, or

(b)  it is signed by a director of the corporation or by an officer or employee of the corporation who is a solicitor.

(3)  A signature made pursuant to this rule shall be accompanied by a statement of the capacity in which the signature is made.

7 Backsheet

(1)  A document prepared by or on behalf of a party for use in a court shall have a backsheet:

(a)  headed in the same manner as is required for the document, and

(b)  showing:

(i)  the number and year of the action,

(ii)  the title of the action or an abbreviation of the title sufficient to identify the action,

(iii)  a description of the document, and

(iv)  the name, address, telephone number and document exchange number of the solicitor for the party and, if the solicitor acts in the action by an agent, the name, address, telephone number and document exchange number of the agent, or, if the party acts in person, a notice to that effect.

[DCR Pt 47 r 6]

(2)  Notwithstanding rule 4 (4), where the paper on which a document is written is sufficiently opaque, the backsheet may be endorsed on the back of the document.

8 Scandal etc [DCR Pt 47 r 7]

The court may order to be struck out of any document any matter which is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive.

9 Notice of rejection [DCR Pt 47 r 8]

Where a registrar rejects a document filed or tendered for filing, the registrar shall, either orally or in writing, give notice of the rejection and the reasons therefor to the party requiring the document to be filed.

10 Copies of documents [DCR Pt 47 r 9]

The registrar may, on prepayment of the registrar’s charges, prepare and certify copies of any documents filed with the registrar for any party entitled to require the copies.

11 Sealing duplicate documents [DCR Pt 47 r 10]

Where any document under the seal of a court is lost or destroyed, the registrar may from time to time seal a duplicate of the document on proof to the registrar’s satisfaction, by affidavit or otherwise, of the loss or destruction.

Part 37 Solicitors

1 Power to act by solicitor [DCR Pt 48 r 1]

(1)  Every matter or thing in relation to any action which under the Act or these rules or otherwise by law is required or allowed to be done by a party may be done by the party’s solicitor on the record of the action.

(2)  Subrule (1) does not apply where the context or subject-matter otherwise indicates or requires.

2 Adverse parties [DCR Pt 48 r 2]

Where a solicitor or the solicitor’s partner acts as solicitor for any party to an action, or is a party to an action, the solicitor shall not, without leave of the court, act for any other party to the action not in the same interest.

3 Appointment of solicitor [cf DCR Pt 48 r 3]

(1)  Where a solicitor signs, and files on behalf of a party in any action, any statement of claim, notice of grounds of defence, cross-claim, or third or subsequent party notice, the solicitor shall be the solicitor of the party on the record of the action.

(2)  Where a party acts for himself or herself in an action and afterwards appoints a solicitor to act in the action, the party or the solicitor shall sign and file notice of the change and serve the notice on the other parties to the action.

4 Change of solicitor etc [DCR Pt 48 r 4]

(1)  Where a solicitor acts for a party in any action, the party may change the party’s solicitor.

(2)  Where a party changes the party’s solicitor, the party, or the party’s new solicitor, shall sign and file notice of the change and serve the notice on the other parties, and, where practicable, the former solicitor of the party.

(3)  Where a solicitor (in this subrule called the principal solicitor) acts for a party in an action and another solicitor acts as agent for the principal solicitor in the action and the principal solicitor changes the solicitor acting as agent, the party, or the principal solicitor, or the new agent, shall sign and file notice of the change and serve the notice on the other parties and, where practicable, the former agent solicitor.

(4)  Where a solicitor acts for a party in an action and afterwards the party, without changing the party’s solicitor, determines the authority of the solicitor to act for the party in the action:

(a)  the party shall sign and file notice of the change and serve the notice on the other parties and, where practicable, the party’s former solicitor, or

(b)  the former solicitor may sign and file notice of the change and serve the notice on the parties.

(5)  Where a solicitor acts for a party in an action and afterwards ceases to act, the solicitor may subject to subrule (6) sign and file notice of the change and serve the notice on the parties.

(6)  A solicitor shall not file or serve a notice of change under subrule (5) without leave of the court unless the solicitor has, not less than 7 days before doing so, served on the solicitor’s former client notice of intention to file and serve the notice of change.

(7)  A solicitor filing a notice of change under subrule (5) shall, except where the notice is filed with leave of the court, file and serve with the notice an affidavit showing service in compliance with subrule (6).

(8)  A solicitor may serve a notice under this rule on the solicitor’s former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.

5 When change takes effect [DCR Pt 48 r 5]

Any change mentioned in rule 3 (2) or 4 shall take effect, and a solicitor shall become or cease to be the solicitor of a party on the record or the agent of that solicitor, as the case may require, when any filing and service required by rule 3 (2) or 4 has been completed.

Part 38 Arbitration

pt 38, rule 1: Am 9.11.1990; 18.12.1992; 15.10.1999.

pt 38, rule 2: Subst 23.8.1991. Am 28.5.1993.

pt 38, rule 3: Subst 27.4.1990. Am 9.11.1990; 23.8.1991; 5.5.1995.

pt 38, rule 4: Subst 27.4.1990.

pt 38, rule 5: Subst 27.4.1990. Am 5.5.1995.

pt 38, rules 6–12: Subst 27.4.1990.

pt 38, rule 13: Ins 27.4.1990. Rep 22.11.1996.

Division 1 Preliminary

pt 38, div 1, hdg: Ins 27.4.1990.

1 Prescribed courts [LC (CC) R r 100]

The courts prescribed for the purposes of section 21H of the Act are the courts held at the Downing Centre, Sydney, Albury, Ballina, Balmain, Bankstown, Bathurst, Blacktown, Burwood, Byron Bay, Campbelltown, Casino, Cessnock, Coffs Harbour, Dubbo, Dungog, East Maitland, Fairfield, Gosford, Goulburn, Grafton, Katoomba, Kempsey, Kogarah, Kurri Kurri, Lismore, Lithgow, Liverpool, Maitland, Manly, Mullumbimby, Murwillumbah, Muswellbrook, Newcastle, Newtown, North Sydney, Orange, Parramatta, Penrith, Port Kembla, Port Macquarie, Raymond Terrace, Redfern, Richmond, Scone, Singleton, Sutherland, Taree, Tweed Heads, Wagga Wagga, Wallsend, Waverley, Windsor, Wollongong, Woy Woy and Wyong.

2 Prescribed actions

For the purposes of section 21H (3) (d) of the Act, an action that has been commenced in a court is within a class of actions that may not be referred for determination pursuant to the Arbitration (Civil Actions) Act 1983:

(a)  if the action is within the court’s Small Claims Division, or

(b)  if the plaintiff is a disable person within the meaning of Part 34, or

(c)  if the court, at the call-over of the action under Part 9 rule 4, is not of the opinion that the possibilities of settlement have been sufficiently explored, that the action is unlikely to be settled or that the action is ready for arbitration, or

(d)  if the defendant has included in the notice of grounds of defence filed in the action any allegation to the effect that the claim of the plaintiff is fraudulent, either as to the whole of the claim or as to a substantial part thereof.

Division 2 Arbitration under the “Philadelphia” system

pt 38, div 2, hdg: Ins 27.4.1990.

3 “Philadelphia” system

(1)  This rule applies to an action referred to an arbitrator under section 21H (1) of the Act by an order referred to in subrule (2).

(2)  In the court held at the Downing Centre, Sydney, and in such of the courts mentioned in rule 1 as may be appointed by the Chief Magistrate for the purposes of this subrule, an order under section 21H (1) of the Act may be for referral to an arbitrator sitting with the approval of the court, on the date specified in the order, without further specifying the arbitrator.

(3)  An arbitrator to whom an action is so referred shall, if he or she is not prepared to hear and determine the action, so inform the court as soon as practicable, specifying the reasons why he or she is not prepared to hear and determine the action.

(3A)  An arbitrator who has not determined an action may, under subrule (3), inform the court at any time that the arbitrator is not prepared to hear and determine the action, whether or not the arbitrator has commenced to hear the action.

(4)  If an arbitrator:

(a)  informs the court that he or she is not prepared to hear and determine an action so referred, or

(b)  declines or fails to hear and determine the action,

the court shall revoke the order referring the action to the arbitrator and may, if it thinks fit, make an order referring the action to another arbitrator.

(5)  An arbitrator may from time to time adjourn arbitration of an action which he or she has commenced to hear.

(6)  Without limiting the operation of subrule (5), an arbitrator shall:

(a)  on the date specified in the order referring the action, or

(b)  on the date to which arbitration has been adjourned under subrule (5),

hear or continue to hear the action, whether or not the parties to the action appear.

Division 3 Arbitration otherwise than under the “Philadelphia” system

pt 38, div 3, hdg: Ins 27.4.1990.

4 Referral procedure

(1)  This rule applies to an action referred to an arbitrator under section 21H (1) of the Act otherwise than by an order referred to in rule 3 (2).

(2)  A court or registrar shall, when making an order under section 21H (1) of the Act or as soon as practicable thereafter, nominate the arbitrator to whom the action is to be referred for arbitration.

(3)  When an arbitrator is so nominated, the registrar shall:

(a)  send to the nominated arbitrator the record of the action, together with notice of the order in the approved form,

(b)  send to the parties or their representatives notice of the referral in the approved form, and

(c)  make and maintain a record of the order.

(4)  In nominating an arbitrator under this rule, the court or registrar shall have regard to the desirability of:

(a)  utilising any appropriate special skills or experience of the arbitrator with regard to an action involving technical issues, and

(b)  complying with any choice of arbitrator made by all the parties in the action.

5 Procedure by arbitrator

(1)  This rule applies to an action referred to an arbitrator under section 21H (1) of the Act otherwise than by an order referred to in rule 3 (2).

(2)  An arbitrator to whom an action is so referred shall:

(a)  if he or she is not prepared to hear and determine the action—return the record of the action to the court as soon as practicable, specifying the reasons why he or she is not prepared to hear and determine the action, or

(b)  as soon as practicable—fix a date, time and place for the hearing of the action and inform the parties to the action of the date, time and place so fixed.

(2A)  An arbitrator who has not determined an action may return the record of the action to the court under subrule (2) (a) at any time, whether or not the arbitrator has complied with subrule (2) (b) and whether or not the arbitrator has commenced to hear the action.

(3)  If an arbitrator:

(a)  returns the record of an action to the court under subrule (2) (a), or

(b)  fails to comply with this rule,

the court shall revoke the order referring the action to the arbitrator and may, if it thinks fit, make an order referring the action to another arbitrator.

(4)  Except to the extent that the court otherwise orders, the date fixed by the arbitrator under subrule (2) (b) for the hearing of an action shall be a date that is not later than 2 months after receipt by the arbitrator of the record of the action.

(5)  In fixing a date, time and place under subrule (2) (b) for the hearing of an action, an arbitrator shall have regard to, but is not bound to meet, the convenience of the parties to the action.

(6)  An arbitrator may, for cause shown by a party to an action, from time to time adjourn the hearing of the action.

(7)  Without limiting the operation of subrule (6), an arbitrator shall:

(a)  on the date, and at the time and place, fixed by the arbitrator under subrule (2) (b), or

(b)  on the date, and at the time and place, to which a hearing has been adjourned,

hear or continue to hear the action, whether or not the parties to the action appear.

(8)  If within 3 months after receipt of the record of an action the arbitrator fails to determine the action, the arbitrator shall:

(a)  forthwith after the expiration of that period, and

(b)  if the arbitrator fails to determine the action during any succeeding month—forthwith after the end of each such month,

inform the court of the reasons for the failure.

(9)  Nothing in this rule operates to limit (as to date, time, place or otherwise) any step an arbitrator thinks fit to take in order to advance the possibility of settlement of an action.

(10)  An arbitrator shall:

(a)  take custody of any exhibit produced to the arbitrator in relation to an action, and

(b)  before, or immediately after, determining the action, return the exhibit to the person by whom it was produced.

Division 4 General

pt 38, div 4, hdg: Ins 27.4.1990.

6 Application

This Division applies to an action referred to an arbitrator under section 21H (1) of the Act, whether by an order referred to in rule 3 (2) or otherwise.

7 Medical reports

(1)  A party seeking to adduce at any hearing before an arbitrator any evidence of a medical practitioner as to the past, present or probable future physical or mental condition of a person:

(a)  shall obtain from the medical practitioner a written report containing the substance of the matters sought to be adduced as evidence, and

(b)  shall serve a copy of the report on each other party not less than 14 days after the date on which notice of referral to arbitration was forwarded by the registrar.

(2)  A party is not entitled to adduce oral evidence by a medical practitioner as to any matter mentioned in subrule (1) unless the arbitrator otherwise directs or the parties consent.

8 Proof of documents

Unless the arbitrator otherwise directs, documents purporting to be hospital clinical notes or records, medical practitioners’ records, workers compensation records or wages records are, to the extent that they are admissible in evidence, admissible without further proof as to their identity.

9 Confession or agreement

(1)  If the court has made an order under section 21H (1) of the Act with respect to an action:

(a)  the court may continue to exercise its powers to enter a judgment to which all the parties consent, and

(b)  the provisions of Part 12 continue to apply to the action.

(2)  If the court enters a judgment to which all the parties consent, or if the registrar enters up judgment under Part 12, the court shall be taken to have revoked the order under section 21H (1) of the Act with respect to the action.

10 Award of arbitrator

(1)  In this rule, a reference to the award of an arbitrator is a reference to an award made by an arbitrator to determine an action referred to the arbitrator under section 21H (1) of the Act.

(2)  The award of an arbitrator must be in or to the effect of the approved form.

(3)  An arbitrator shall, forthwith after making an award, transmit the award to the court together with, in the case of an action to which rule 4 applies:

(a)  as many copies of the award, and of any attachments to the award, as there were parties separately represented in the action, and

(b)  the record of the action.

(4)  An arbitrator shall specify in the award the reasons for the award, being reasons that are, in the arbitrator’s opinion, sufficiently stated to make the parties aware of the arbitrator’s view of the case made by each of them.

(5)  If a party has not attended an arbitration, the arbitrator shall include in the award a statement that the party did not attend and any other information known to the arbitrator concerning the party’s failure to attend.

(6)  A registrar shall, forthwith after receiving the award of an arbitrator, send to each of the parties to the action to which the award relates, or to the representative of such a party, a copy of the award on which the registrar has endorsed the date of sending and the registrar’s notice in the approved form.

11 Period after which award becomes judgment

For the purposes of section 21H (5) of the Act, the time prescribed is:

(a)  in relation to an award expressed to be made with the consent of all parties—the period ending on the date endorsed by the registrar on copies of the award as the date of sending the award, or

(b)  in any other case—the period of 28 days immediately following the date so endorsed.

12 Rehearing

(1)  An application for the rehearing, under section 18 (2) of the Arbitration (Civil Actions) Act 1983, of an action determined by an arbitrator shall be made by the aggrieved party filing a notice, in or to the effect of the approved form, together with as many copies of the notice as there were parties separately represented in the action.

(2)  The registrar shall, as soon as practicable after the filing of a notice under subrule (1):

(a)  set a date (being as early a date as the business of the court permits):

(i)  for call-over of the action and for the fixing of a date for the rehearing, or

(ii)  in the case of an action in which the arbitrator’s award contains a statement referred to in rule 10 (5)—for the action to be before the court for directions as to any rehearing and for the fixing of a date for any such rehearing,

(b)  endorse the date set by the registrar on the notice and on each copy of the notice filed, and

(c)  send a copy of the notice, so endorsed, to each party who was separately represented in the action.

(3)  Before the record of an action is brought before the court for rehearing, the registrar shall seal within the record all information as to the nature and quantum of the award made in respect of the action, but the court is not disqualified from rehearing the action merely because it becomes aware of any such information.

13 (Repealed)

Part 38A Service and Execution of Process Act 1992 (Cth)

pt 38A, rules 1–3: Ins 8.4.1993.

pt 38A, rule 4: Ins 8.4.1993. Am 5.5.1995.

pt 38A, rule 5: Ins 10.9.1993.

1 Interpretation

In this Part, Commonwealth Act means the Service and Execution of Process Act 1992 (Cth).

2 Commencement

This Part commences on 10 April 1993.

3 Fees

The fee for:

(a)  registering a judgment under section 105 (1) of the Commonwealth Act is $25, and

(b)  issuing a sealed copy of a judgment for registration under that subsection is $10.

4 Costs

(1)  The fees allowed for service of process of a court in another State or part of the Commonwealth shall be either:

(a)  in accordance with the scale of fees in force for the time being in the court of that State or part most analogous in jurisdiction to a court, or

(b)  if there is no such scale, in accordance with the scale of fees in force for the time being in courts for service of process of a court in this State.

(2)  The costs to be allowed under section 107 (1) (a) of the Commonwealth Act (obtaining and lodging the copy of the judgment) are, subject to subrule (3) and unless the court otherwise orders, the sum of:

(a)  the fees paid to the court for the registration of the judgment, and

(b)  $233.

(3)  The amount recoverable under subrule (2) in respect of a judgment is to be calculated as though:

(a)  the amount for which the judgment is to be enforced were the amount in issue in an action, and

(b)  the amount specified in subrule (2) (b) were a fixed fee,

for the purposes of the Determination of the Legal Fees and Costs Board published in Government Gazette No 91, of 20 August 1993, at page 4741.

5 Interest on judgment debt

Where a judgment is registered in a court under section 105 (1) of the Commonwealth Act, and the judgment creditor seeks to recover interest on the amount of the judgment payable under section 108 of that Act:

(a)  any affidavit in support of an application for a garnishee order, and

(b)  any application for the issue of a writ of execution,

in respect of the judgment must contain particulars of the rate or rates, and the period or periods, which would be applicable to the recovery of interest on the judgment in the court of rendition.

Part 38B Court appointed expert and assistance to the court

Division 1 Court appointed expert

pt 38B, div 1: Ins 19.10.2001.

1 Selection and appointment

(1)  Where a question for an expert witness arises in any proceedings a court may, at any stage of the proceedings, on application by a party or of its own motion, after hearing any party affected who wishes to be heard:

(a)  appoint an expert (in this Division referred to as the expert) to inquire into and report on the question, and

(b)  authorise the expert to inquire into and report on any facts relevant to the inquiry and report on the question, and

(c)  direct the expert to make a further or supplemental report or inquiry and report, and

(d)  give such instructions (including provision concerning any examination, inspection, experiment or test) as the court thinks fit relating to any inquiry or report of the expert.

(2)  The court may appoint as the expert a person selected by the parties affected or a person selected by the court or selected in a manner directed by the court.

2 Code of conduct

(1)  A copy of the expert witness code of conduct in Schedule 1 (the code) must be provided to the expert by the registrar or as the court may direct.

(2)  A report by the expert is not to be admitted into evidence unless the report contains an acknowledgment by the expert that he or she has read the code and agrees to be bound by it.

(3)  Oral evidence is not to be received from the expert unless the court is satisfied that he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it.

3 Report

(1)  The expert must send his or her report to the registrar.

(2)  The registrar must send a copy of the report to each party affected.

(3)  Subject to compliance with this rule, the report is taken to have been admitted into evidence in the proceedings unless the court otherwise orders.

4 Cross-examination

Any party affected may cross-examine the expert and the expert must attend court for examination or cross-examination if so requested on reasonable notice by the registrar or by a party affected.

5 Remuneration

(1)  The remuneration of the expert is to be fixed by the court.

(2)  Subject to subrule (3), the parties specified by the court are jointly and severally liable to the expert to pay the amount fixed by the court for his or her remuneration.

(3)  The court may direct when and by whom the expert is to be paid.

(4)  Subrules (2) and (3) do not affect the powers of the court as to costs.

6 Other expert evidence

Where an expert has been appointed under this Part in relation to a question arising in the proceedings, the court may limit the number of other experts whose evidence may be adduced on that question.

Division 2 Assistance to the court

pt 38B, div 2 (rules 1–7): Ins 19.10.2001.

7 Assistance to the court

The court may in any proceedings obtain the assistance of any person specially qualified to advise on any matter arising in the proceedings, may act upon the adviser’s opinion and may make orders for the adviser’s remuneration.

Part 39 Miscellaneous

pt 39, rule 4: Am 29.3.1996.

pt 39, rule 5: Ins 27.4.1990.

1 Refusal of order for removal [cf DCR Pt 52 r 6]

Where an application under section 21B (1) of the Act for an order removing an action into the District Court is refused by that Court, the plaintiff shall as soon as practicable serve the registrar with a copy of the order refusing the application.

2 Appearance by commercial agent etc [LC (CC) R r 5]

For the purposes of section 11 (2) of the Act, proceedings under Part 27 or 28 are a prescribed class of proceedings.

3 Enforcement of orders for the payment of money [LC (CC) R r 64]

Where a conviction or order (not being an order referred to in section 70 of the Act), made under any Act, operates as an order for the payment of money under the Act or may be enforced under the Act, the conviction or order shall not be enforceable unless there has been filed with a registrar a certificate of the conviction or order.

4 Searches [DCR Pt 52 r 3 (1), (2); cf LC (CC) R r 80]

(1)  A party to any action may search the record kept by the registrar in respect of the action.

(2)  A person other than a party to an action, or the solicitor for the party, shall not search the record kept by the registrar in respect of the action except by leave of the court or registrar.

5 Corporation acting in person

For the purposes of the Act and these rules, a corporation may authorise an officer of the corporation to sign any document, or to do any thing which a party to any proceedings acting in person may do, in respect of any proceedings to which the corporation is or may become a party, and any document signed or thing done by an officer so authorised shall be taken to be signed or done by the corporation.

Schedule 1 Code of conduct for expert witnesses

(Part 23, rule 1D and Part 38B, rule 2)

Expert witness code of conduct

Application of code

1.

This code of conduct applies to any expert engaged to:

(a)  provide a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or

(b)  give opinion evidence in proceedings or proposed proceedings, or

(c)  inquire into and report on a question under Part 38B as a court appointed expert.

General duty to the court

2.

An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert’s area of expertise.

3.

An expert witness’s paramount duty is to the court and not to the person retaining the expert.

4.

An expert witness is not an advocate for a party.

The form of expert reports

5.

A report by an expert witness must (in the body of the report or in an annexure) specify:

(a)  the person’s qualifications as an expert, and

(b)  the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed), and

(c)  reasons for each opinion expressed, and

(d)  if applicable—that a particular question or issue falls outside his or her field of expertise, and

(e)  any literature or other materials utilised in support of the opinions, and

(f)  any examinations, tests or other investigations on which he or she has relied and identify, and give details of the qualifications of, the person who carried them out.

6.

If an expert witness who prepares a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.

7.

If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.

8.

An expert witness who, after communicating an opinion to the party engaging him or her (or that party’s legal representative), changes his or her opinion on a material matter must forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect which must contain such of the information referred to in paragraph 5 (b), (c), (d), (e) and (f) as is appropriate.

9.

Where an expert witness is appointed by the court, the preceding paragraph applies as if the court were the engaging party.

Experts’ conference

10.

An expert witness must abide by any direction of a court to:

(a)  confer with any other expert witness, and

(b)  endeavour to reach agreement on material matters for expert opinion, and

(c)  provide the court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement.

11.

An expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement.

sch 1: Ins 19.10.2001.